High Court rules new criminal legal aid payment scheme is ‘grossly unfair’

High Court rules criminal legal aid scheme ‘grossly unfair’ and finds the justice minister exceeded his powers. Picture: Cillian Sherlock/PA Wire

The provisions of the new criminal legal aid payment scheme are “grossly unfair” and the justice minister Jim O'Callaghan has acted beyond his powers under the legislation, the High Court has ruled.

In her judgment, Ms Justice Mary Rose Gearty said the new regulations “create a demonstrably illogical process” and fail to establish a rational system.

The High Court delivered its decision on Tuesday on the legality of the new criminal legal aid system for the District Courts.

It upheld submissions made by Dublin criminal defence solicitor John Quinn, who sought an order to quash the statutory instrument.

Earlier this year, the justice minister introduced a €520 flat fee for criminal legal aid cases. The fee is designed to cover the equivalent of five appearances, the average number under the previous scheme, and includes an 8% increase in fees for all criminal lawyers.

Under the old system, solicitors received €240 for a first appearance with a legal aid client and €60 for each subsequent appearance.

The changes led to a withdrawal of services by criminal defence solicitors, who have rejected the new flat-fee model.

Justice Gearty said that, because there is no discretion to account for multiple, highly complex cases or for situations where the alleged conduct is the same across multiple certificates, the regulation is “ultra vires”.

The judge also said the provision fails to achieve the objective of a “rational” payment scheme under the legislation. It also fails to meet the stated aim of the 2026 Regulations, which is to avoid the granting of multiple certificates to one accused person.

A regulation requiring certification to be determined by the date on which cases are listed removes flexibility and creates the potential for abuse, the judgment added.

Justice Gearty said the provisions are “grossly unfair”.

“Due to the requirement that qualifying cases be listed at the commencement of proceedings, the Regulations also create a demonstrably illogical process, which requires certification based on the time of listing alone,” the judgment said.

“This fails to create a rational system under the Act and fails to achieve the Respondent’s stated objective of curtailing an abuse of the previous system in respect of multiple certificates.

“This criterion has no apparent logical basis, it was not justified by the Respondent, and the provisions thus exceed his power under the parent legislation.

“The Applicant is not entitled to earn a livelihood by guaranteed access to a particular type of work, so his constitutional right in that regard is not directly in issue.

“The Applicant relies on examples that are not speculative and has established that the impugned regulations can be anticipated to have an adverse impact on him.” 

The judge further stated that one provision allows a solicitor to be paid twice in respect of charges against a single accused person arising from the same events.

However, if an accused person is charged with numerous different offences on the same court date, the solicitor will receive only one certificate and, therefore, one payment.

The judge will make final orders after hearing submissions on other aspects of the application.

The Department of Justice has been contacted for comment.