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The Justice Minister was asked to limit free legal aid for repeat offenders. Here's why that won't happen

Tipperary County Council passed a motion in March requesting that the Minister for Justice consider it.

Image: Shutterstock/Khsve

IN MARCH, TIPPERARY County Council passed a motion to call on the Minister for Justice to introduce a cap on the number of times that a repeat offender can avail of free legal aid.

Its members then wrote to the Minister, requesting that the proposal would be considered. 

Free legal aid is given to those who cannot afford to pay for a solicitor privately, but who need legal representation in court. Criminal free legal aid is awarded by the courts, while the Legal Aid Board provide legal aid in civil cases.

In cases of mortgage arrears, financial support and free legal advice is provided in a separate scheme called Abhaile.

To apply for free legal aid in civil cases, you fill out a form that asks whether you’re on social welfare, the worth of your assets, how much you pay for accommodation and other details.

In criminal cases, the court decides on whether a person is granted free legal aid based on a means-based statement, which is given to the judge. It’s this type of aid which was requested to be restricted for repeat offenders.

Government expenditure on criminal legal aid has risen since 2012; from €50 million to €58 million in 2017. Up until September 2018, 52,000 certificates of legal aid were awarded (a person could get more than one certificate). Up until October of the same year, that translated to a €49.2 million spend on criminal aid.

In a statement to TheJournal.ie, the Department of Justice said:

The provision of an effective criminal legal aid service to persons facing serious charges which could result in the loss of their liberty is of fundamental importance and is part of an offender’s constitutional right to a fair trial.
An accused person who faces serious charges and who cannot afford to pay for legal representation has a constitutional right to legal aid.

The Department cited the Supreme Court case of State (Healy) v Donoghue [1976] I.R. 325 where it was determined that the right to criminal legal aid is a constitutional right. 

It also cited the Criminal Justice (Legal Aid) Act 1962 – the primary legislation covering the operation of the Criminal Legal Aid Scheme – saying that free legal aid is granted by the courts, in certain circumstances, for the defence of those with insufficient means to afford legal representation in criminal proceedings.

“A refusal to grant legal aid could give a convicted defendant a very likely avenue for appeal,” the Department said. “In simple terms, just because a person committed an offence in the past does not mean they are automatically guilty.

If an accused was denied legal representation when facing a prosecution by the State, there would be a danger of an unfair trial.

Provisions in law

The Department also quoted the European Convention on Human Rights, which provides that each person charged with a criminal offence is entitled to defend themselves, if they have insufficient means to pay, through free legal assistance when the interests of justice require it.

“The Minister has no function in these matters which are determined by the judiciary which is independent in the exercise of its functions,” the Department said.

Subject to the statutory requirements, the law does not exclude any person or category of persons from consideration in the context of the grant by a court of criminal legal aid.

Proposals for new Criminal Legal Aid legislation are currently being prepared by the Justice Department “to update and strengthen” the system of granting legal aid, including transferring responsibility for its administration to the Legal Aid Board.

The proposed measures would enable the Board to investigate the means of a person to whom legal aid was granted and including introducing a more rigorous and objective means testing system for criminal legal aid, provision for contributions, and new sanctions. 

Between 2012 and 2015, the funding provided to the Legal Aid Board by the Department of Justice for civil cases has been around €32-34 million.

In 2016 it increased to €34.8 million, in 2017 it rose again to €38.9 million, and in 2018 it rose to €40.2 million.

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