Legal aid row may put extra pressure on strained prison system

Irish Penal Reform Trust director warns of a further increase in the number of people remanded in custody in already overcrowded prisons

Irish Penal Reform Trust executive director Saoirse Brady: 'People who come into custody have a myriad of different issues going on for them and may not understand what’s happening.' File picture

The ongoing dispute between criminal defence solicitors and justice minister Jim O’Callaghan over legal aid reforms could place further pressure on the already strained prison system, legal experts have warned.

Concerns have been raised that, if the stand-off continues, prison authorities may have to consider increasing the use of temporary release to create capacity for a growing number of remand prisoners.

Solicitors around the country have withdrawn their services in recent weeks over changes, introduced by Mr O’Callaghan to the criminal legal aid system that came into effect on July 1.

The scheme provides for a once-off legal aid fee of €520 irrespective of how many appearances solicitors make to represent a client in the district court. Previously, solicitors were paid per appearance.

• Last week, Eugene Constantin, who has been charged with the murder of his wife Adina, was remanded in custody at Portlaoise District Court but was unable to access legal advice for 48 hours due to the solicitors’ protests.

Judge Andrew Coady said “the failure to guarantee the fundamental rights is disgraceful”.

•  In Co Clare on the same day, at Ennis Circuit Court, two sexual abuse cases that saw involved parties travel from the US and Canada were adjourned as defendants could not access legal aid.

• A woman who was  left without legal representation in Dublin District Court due to the dispute over the new legal aid payment model was released from custody on bail after she challenged her imprisonment in the High Court. 

At the High Court on Friday, lawyers for Ceiligh McCormack, aged 29, of Railway St, Dublin 1, submitted to Ms Justice Mary Rose Gearty that arising from her being unable to secure representation, Ms McCormack did not have a fair hearing at the district court.

The judge agreed to open an inquiry into the lawfulness of the woman’s detention.

Over 1,000 cases across the country have been adjourned due to the withdrawal of services.

• Meanwhile, in Cork, a 28-year-old man serving a sentence told the district court judge on Friday that he wanted to go ahead with sentencing on his latest theft offences, even though he had no legal representation due to the solicitors’ strike.

Solicitor warns about lack of representation

Thomas Coughlan, a criminal legal aid solicitor practising in Cork City, said defendants in Garda custody are typically asked three questions:

• To account for their presence at a particular location;
• To explain an object, substance, or mark on their personal clothing;
• To specify facts they may later rely on as a defence in court.

Mr Coughlan said under Section 19 of the Criminal Justice Act 1984, gardaí can draw inferences based on a defendant’s failure or refusal to answer those questions. He said: 

In the case of custody, it is of vital importance that somebody makes a decision as to whether or not they’re going to make a statement or what type of statement, and they need to discuss it with a clear head.  

Access to a solicitor while in custody is a fundamental element of the right to a fair trial and is protected under EU law.

Saoirse Brady, executive director with the Irish Penal Reform Trust, expressed concern that defendants in Garda custody may not be fully informed on the nuances of the system, and could unintentionally incriminate themselves.

Solicitors 'are like interpreters'

“[Solicitors] are like interpreters for you in a way; they’re interpreters of the law: Without that, you are going to have people who you know are not going to know what to say or what to do, or they’re not going to understand the system,” she said.

“They’re not going to understand what’s happening to them… People who come into custody have a myriad of different issues going on for them and may not understand what’s happening, and that can take a real toll on their wellbeing.”

Sources in the Court Services said it was likely judges could rule any evidence given by defendants in custody without a solicitor as inadmissible, meaning a further delay to trials.

The Department of Justice declined to comment on the implications of the legal aid dispute.

Dispute could see more people in custody 

Ms Brady said the number of defendants whose cases are not being advanced could see a further increase in individuals remanded in custody, placing more pressure on Ireland’s overburdened prison service.

As of July 8, Irish prisons were operating at 123% capacity, with 1,035 of the 5,827 prisoners in custody awaiting trial.

Mr Coughlan suggested that if the stand-off between solicitors and the justice minister were to continue, prisons may grant more inmates temporary release as a means to free up space for defendants on remand.

High Court challenge

John Quinn, a lawyer at John M Quinn & Co Solicitors, has pushed forward a High Court action seeking to nullify the statutory instrument that underpins the new legal aid reforms.

Mr Quinn’s case is expected to be heard at the end of the month.

Solicitors are now offered a flat fee for their work as opposed to a previous system where fees rose incrementally after every court sitting for a given client.

Sinn Féin justice spokesperson Matt Carthy told the Irish Examiner that the ensuing fallout from the legal aid dispute was “entirely predictable”, adding that Mr O’Callaghan introduced changes in a “very bullheaded way” without adequate consultation.

Last week, the Oireachtas justice committee wrote a letter to the justice minister, seeking clarification on the engagement between the Department of Justice and the Bar of Ireland and the Law Society in relation to the proposed changes.

The committee requested the data behind the decision to reform the free legal aid system, while calling for immediate suspension of the reforms.