Means tests for legal aid could defeat the purpose


ANALYSIS: The means-testing of applicants for criminal legal aid will not produce a pot of gold

THE PROVISION of legal aid in both criminal and civil cases is guaranteed by the Constitution and by European human rights law. Any changes to it will have to take place within these constraints. The Government is considering compulsory means-testing for criminal legal aid.

The criminal legal aid system was introduced on a statutory basis by the 1962 Criminal Justice (Legal Aid) Act, providing for legal aid to “poor persons” accused of crimes.

The Act was not actually implemented until 1965, when regulations were introduced laying down conditions for the operation of the scheme, setting out the fees and expenses payable to solicitors and barristers. Under the Act the court decides on the provision of legal aid to the accused.

For the first 11 years it operated at very low cost to the exchequer, as the legislation did not establish an absolute right to legal aid, and there was no requirement to advertise it.

In 1976 the Supreme Court ruled that if a person was ignorant of his right to legal aid and failed to apply for it, and therefore was not granted it, then his constitutional right was infringed. The judgment also imposed a constitutional duty on the State to provide legal aid to poor persons accused of serious crime. Not surprisingly, the cost of criminal legal aid escalated as a result.

A further court case in the High Court in 1986 established the right of the accused person to express a preference for a particular solicitor, who cannot be refused without the court giving a reason.

Costs continued to rise, especially as crime rates rose, and in 1996 the then minister for justice, Nora Owen, set up a Criminal Legal Aid Review Committee, under the chairmanship of Judge Gerard Buchanan, to review its operation and make recommendations for cost savings, with particular attention to be given to the possibility of a public defender scheme.

In its report in 1999 it recommended the retention of the existing system as “a more equitable, effective and economic system than a public defender system”.

Referring to means-testing, it recommended that people already in receipt of State payments, like unemployment assistance, family income support or a medical card, should automatically be entitled to legal aid as they would already have undergone a means test conducted by a Government department or agency.

It also recommended against further means-testing on the grounds that it would give rise to additional cost to the State, the cost-benefit of such a procedure would be low, and such a system would give rise to inevitable delays in the processing of criminal matters.

It recommended the continuation of the system whereby the court decides on an application for legal aid, on the basis that the court is independent and in the best position to be aware of the factors which are present in each case in assessing the merit of an application.

Following the publication of the Buchanan report, the system remained unchanged.

As it stands, a member of the Garda Síochána may object to the granting of legal aid. Frequently, if he or she does – citing evidence of wealth on the part of the applicant – the court will refuse it.

There are pitfalls to refusing legal aid without producing verifiable evidence of wealth, as the accused could argue that his case was prejudiced at the outset by a judge deciding he possessed criminal assets before his trial even took place.

However, costs could be recouped by the Criminal Assets Bureau going after any assets possessed by the accused if and when convicted (most cases end in conviction).

There are areas where savings could be made, either by reducing from two to one the number of counsel provided (two are routinely briefed in very serious cases), or by solicitors being rewarded for not briefing counsel at all in some less complex cases.

If the proposal for means-testing does go ahead, using the Legal Aid Board, it will be able to draw on its considerable experience, as civil legal aid is rigorously means-tested. However, its resources are already severely stretched.

Civil legal aid was introduced in 1979 following a successful case taken against Ireland in the European Court of Human Rights, where Josie Airey, a woman in need of legal aid to pursue a family law case, represented by Mary Robinson, said that her rights were denied by the absence of a legal aid scheme.

The scheme was set up on a statutory basis by the 1995 Civil Legal Aid Act, and operates mainly through a network of legal aid centres, staffed by solicitors and support staff. It is supplemented by a panel of private solicitors.

People can obtain legal advice on a wide range of matters, and representation in court in family law, personal injury, debt and certain other areas. It does not represent people before tribunals such as the Employment Appeals Tribunal or Personal Injuries Assessment Board. In practice, the bulk of the work is in the area of family law.

Additional resources were provided to the board following another High Court case, where in December 2004 Mr Justice Kelly found that a wait of 25 months for a certificate of entitlement to legal aid violated the rights of Marie O’Donoghue. She had been separated from her husband for a number of years and was caring for a profoundly disabled son with inadequate maintenance.

The court concluded that “it is not enough to set up a scheme for the provision of legal aid to necessitous persons and then render it effectively meaningless for a long period of time”. Any savings sought from the civil legal aid scheme will have to be in the context of this ruling.

In addition to the legal aid centres, the Legal Aid Board runs the Refugee Legal Service, a specialist unit providing advice and representation to those seeking asylum.

In order to be eligible for legal aid, a person must have an annual income of less than €18,000 a year, although this is calculated after certain outlays (accommodation, spouse and other dependants, etc) are discounted. Even then, a small payment is required from the applicant, depending on his or her means.

A contribution can also be sought if the person has capital (a house or savings above a certain value).

The assessment of eligibility forms a crucial part of the work of the Legal Aid Board. Given the manner in which its resources were stretched in recent years, as revealed in the O’Donoghue case, it is difficult to see how it could take on administering means-testing for criminal legal aid.

Given that the vast majority of applicants for criminal legal aid are social welfare recipients and therefore entitled to it, will means-testing save enough money to justify the delays it is likely to cause? And, if some of those being means-tested opt to represent themselves, so that the judge will have to guide them through the trial, will the cost not simply be transferred to the additional time taken by the prosecution, the judge and court staff as a result?

Carol Coulter is Legal Affairs Editor