Reforms to give courts power to restrict criminal legal aid

Justice Minister Helen McEntee said: 'Access to legal representation is fundamental to ensuring fair access to justice, and it is important that our legal aid architecture is appropriate and efficient.' Picture: Gareth Chaney/Collins

Means-tested criminal legal aid can be withdrawn or cut under new Government reforms, which will also extend free legal advice to more victims.

The General Scheme of the Criminal Justice (Legal Aid) Bill 2023 is to be published today by Justice Minister Helen McEntee and Minister of State for Law Reform James Browne.

The bill will transfer administrative responsibility for the criminal legal aid scheme from the Department of Justice to the Legal Aid Board, which already administers legal aid in civil cases, such as family law.

In 2022, criminal legal aid expenditure amounted to €81.2m.

A written application for criminal legal aid, supported by a statement of financial circumstances, will be introduced.

The courts will continue to grant legal aid, but will be able to do so subject to a further assessment of income by the Legal Aid Board. The board will be able to recommend that the applicant can afford to pay some of their legal costs themselves.

The court will also be able to refer a person to the Legal Aid Board for an assessment of income if they fail or refuse to provide information on their financial means.

Anyone who knowingly or recklessly makes false or misleading financial statements will be guilty of an offence that could incur a €4,000 fine, or six months’ imprisonment. The court will also be able to amend the terms on which legal aid is granted, such as on objection by the prosecution or where the accused has not co-operated with the court. Ms McEntee said:

Access to legal representation is fundamental to ensuring fair access to justice, and it is important that our legal aid architecture is appropriate and efficient.

“But it is also important that proper assessments are carried out when deciding if a person can qualify for criminal legal aid. That’s why this new legislation will allow the courts, where the courts might consider it warranted, to refer an applicant to the Legal Aid Board for an assessment of their financial circumstances to be carried out under regulations to be drawn up under the terms of the bill.

“The board will then be able to recommend that a person can afford to contribute to their legal costs rather than have the entire bill borne by the taxpayer, and a court will make the final decision in the matter.”

The bill also aims to extend the type of assistance the Legal Aid Board can provide to make criminal justice more supportive of victims.

Legal advice will be available to a victim at any time after an offence, even when it is decided not to make a complaint or proceed with a prosecution, for offences including rape, sexual assault, and sexual abuse of minors and people with mental illness or intellectual disability.

It will also allow for legal advice to be granted to a parent, guardian, or other responsible adult in certain cases.

“The bill will deliver on a number of important recommendations from my ‘Supporting a Victim’s Journey’ plan to reform the criminal justice system and make it more victim-centred,” Ms McEntee said.

“Free legal advice is available to victims in cases involving sexual offences, and not just in cases where a decision has been taken to prosecute. This will be an important element of ensuring victims of some of the most sensitive and psychologically damaging crimes are better supported at every step in their journey through the criminal justice system.”