Legal aid reforms: Tackling 'perverse incentives' or creating a 'false narrative'?

Justice minister Jim O'Callaghan and solicitors are as far apart as ever on the issue of free legal aid payments

Justice minister Jim O'Callaghan: Solicitors say the minister’s new system — where the €260 initial payment and €60 per-appearance is replaced with a single €520 fee, representing an average of five appearances — will make working under the legal aid system unworkable.

Justice minister Jim O'Callaghan's defence of his reforms of the criminal legal aid system on Wednesday were overshadowed somewhat by his controversial claim that rape cases were targeted by the solicitor's strike escalation.

At the heart of his argument in favour of reform was that the cost of legal aid in the district court has doubled in the past 10 years, from €19m to more than €41m, despite a reported decrease in the volume of criminal cases before the district courts.

Mr O'Callaghan said a review by the Department of Justice showed there was an average of five appearances for criminal legal aid-funded cases, compared to three appearances for cases without it.

That review, published in July, also found criminal legal aid cases were less likely to have an outcome of a fine and to be struck out than non-legal aid cases, concluding repeated appearances had "little impact on case outcomes".

The department extrapolated from the data there was "inefficiency", "perverse incentives", and "systematic costs" in the district courts' criminal legal aid system.

It said as it could not control where legal aid was granted, as that power rests with judges, the "only effective means of improving efficiency" was reform of the criminal legal aid scheme.

Mr O’Callaghan also shared data on one of the solicitors' two main asks — that there would be separate certificates, or invoices for payment for legal aid services, for separate offences on separate dates, with a cap of five certificates granted per day.

The review noted in the Law Society's own submissions, it pointed out the previous legal aid system "unfairly penalises" practitioners who represent multiple accused individuals on the same day, even if they are co-accused.

"If one looks at it, one can see that in the Dublin District Court, there were money laundering charges where 131 certificates were issued, there were only two appearances in the district court and the fees payable to the solicitor would amount to €26,800,” Mr O’Callaghan told the committee.

The department’s report also said the number of certificates granted to one single accused had “increased dramatically” and there were 63 legal aid requests for payment for a person charged with brothel keeping, worth about €14,000.

Solicitors' rebuttal 

The solicitors argue the figures only tell part of the story and it is a "false narrative" to blame solicitors for longer timeframes in criminal legal aid cases.

They argue legal aid cases can be more complex, requiring more consultation and reports, and adjournments are not granted by judges without good reason.

Tony Collier of Ferry Solicitors in Dublin said in his experience, applications for adjournments were mainly made by the State, because they are waiting for directions from the DPP, probation and welfare reports, or for seized drugs to be forensically analysed — things solicitors have "no control over".

Solicitors also said it appeared more people were qualifying for legal aid, which is based on a person's income against their outgoings.

"I have noticed since the start of my career that more people from middle-class backgrounds find themselves eligible for legal aid," Mr Collier said.

Solicitors have also pointed out budgets across the Department of Justice have increased. For example, the cost of running the Office of the Director of Public Prosecution has almost doubled in 10 years, from €38m in 2015 to €72m last year.

They said the minister’s new system — where the €260 initial payment and €60 per-appearance is replaced with a single €520 fee, representing an average of five appearances — will make working under the legal aid system unworkable.

Cork-based solicitor Thomas Coughlan said if the current model remained, the "viability of criminal legal practice is undermined" as a blend of private and legal aid work forms part of the business model for firms, particularly in more rural areas.

Mr Collier and Mr Coughlan argued solicitors were "open and happy" to make reforms, but consultations with solicitors should have formed part of the process.

"Criminal legal aid is a demand-led public service provided by the private sector on behalf of the State," Mr Collier said, adding in order to reduce delays in the justice system, a taskforce was needed, comprising department officials, solicitors and barristers, the probation service and gardaí.

“Legal aid certificates are not money for solicitors for no reason, they are a granted by a judge for a social welfare-type support for people coming into court,” Mr Coughlan said.

“After November 3, when a High Court decision on a judicial review is due, we’ll get to a point where solicitors either quit legal aid entirely or get back on the panel out of economic necessity and take the time to decide what they’re going to do with their career.”