The justice minister is reviewing a system that costs €50m a year and that unquestioningly finances repeat offenders, but public defenders would not be cheaper and may involve a conflict of interest, writes Caroline O’Doherty
SALLY HANLON has to prepare victims of crime for cross-examination by a barrister who is being paid by the victim’s taxes to defend the person who has ruined their life.
“There can be a lot of anger and frustration, at the fact that the person who commited a crime against them is being, or, at least, it seems is being, helped out of the situation with free legal aid,” says Ms Hanlon, founder of the Support After Crime charity.
“The victim feels, ‘I had to go on the stand and prove myself, yet the offender didn’t have to say a word, because he had his team speaking for him, and I helped pay for that team’. They don’t see it as balanced.”
The free criminal legal aid scheme can be emotive, and cases arise that make the public feel victimised, particularly when those cases are a reminder that the scheme makes payments of €50m a year.
Murderers, gangsters, and habitual offenders all benefit from the services of high-profile senior counsel and solicitors, free of charge.
By some estimates, convicted drug dealer, John Gilligan, cost the taxpayer €3m in legal aid in the 14 years from his extradition from Britain, in 1999, to his release from prison, here, in 2013.
His team helped him fight everything from the charge of murdering journalist Veronica Guerin, which he beat, to drugs charges, for which he was sentenced to 28 years, to appeals against the severity of that sentence, which was reduced to 20 years, to various proceedings brought against him by the Criminal Assets Bureau, plus assorted misdemeanours in prison, in between.
Depraved killer Graham Dwyer had free legal aid for his trial for the murder of vulnerable childcare worker, Elaine O’Hara, and will hear, at the end of this month, whether he can retain his legal team to challenge aspects of the prosecution case in the High Court.
Joe O’Reilly, who is serving a life sentence for the 2004 murder of his wife, Rachel, had legal aid for his original trial, a failed appeal, and a dismissed claim for miscarriage of justice, and he is now also awaiting a decision on an application to have his aid extended to a further appeal to the Supreme Court.
Those are high-profile cases. There are many small-time repeat offenders, for whom appearances in the courts and stretches in prison are a way of life, and who clock up huge legal-aid bills over a lifetime of crime.
And then there are the big crime bosses, who have fine houses, top-of-the-range cars, and all the trappings of a lavish lifestyle, and who still declare negligible income or assets, when filling in the unchallenging, one-page statement-of-means form required of legal-aid applicants.
Anti-Austerity Alliance TD Paul Murphy is a novice to the legal aid system, but he has faced a backlash for being granted free representation for his upcoming trial, on charges of falsely imprisoning then tánaiste, Joan Burton, during the water-charges protests in Jobstown.
Criticised by a stream of Dáil backbenchers for seeking legal aid, while on a salary of €87,000, he mounted a reasoned defence.
He pointed out that legal representation for the trial could cost him €100,000 — prohibitive to all but the super-wealthy — and that it would not be returned to him if he was found not guilty. But the incident only fuelled the growing clamour for a tightening of the apparent largesse in the legal-aid scheme.
Frances Fitzgerald is the latest in a long line of justice ministers to heed the clamour and to promise reform of the scheme, which is administered at local level by county registrars, with payments processed by a Department of Justice unit based in Killarney.
Prior to the general election, Fitzgerald had said she would bring draft legislation, the Criminal Justice (Legal Aid) Bill, to Cabinet, to provide for more rigorous assessment of legal-aid applications and for tough sanctions for approved applicants who were later found to have lied about their income and assets.
If that sounds familiar, it’s because, more than 40 years ago, then justice minister, Gerard Collins, established the first Criminal Legal Aid Review Committee to examine the scheme, to see what improvements could be made to it.
The committee, set up in 1975 and headed by Judge WA Tormey, submitted a final report in 1981, which included remarks that are equally valid today.
They wrote: “Criminal legal aid tends, by its very nature, to attract a certain amount of suspicion. One probable reason is that law-abiding taxpayers tend to resent the idea of devoting public money to the defence of people who, in a high proportion of cases, plead guilty to the offences charged.
“This resentment is probably strengthened by the knowledge that a sizeable amount of legal-aid expenditure is incurred in the defence of a small number of regular offenders.”
They wrote that there was a strong suspicion among the public that the scheme was abused. “The suggestion made is that, all too frequently, accused persons wrongly declare themselves to be persons of insufficient means, in order to qualify for legal aid.”
“It is clear, however, that even if no substantial abuse actually occurs, the provisions in the scheme governing eligibility and abuse are practically useless, unless the courts have some effective machinery for checking means statements made by accused persons.”
At the time, not all judges demanded production of a written statement of means. This is now mandatory, although the extremely limited form has hardly changed since the 1960s, as evidenced by its request for information about ground rents.
But, in addition to compulsory completion of the form, the Tormey Committee said: “There should be machinery through which statements of means could be verified.” On that front, little has changed, either.
What did change is that the cost of the scheme increased substantially, as did public resentment.
In 1986, then minister for justice, Alan Dukes, responded to concerns about the costs, telling the Dáil: “My department are examining the scheme to see what changes may be needed in the present arrangements for providing criminal legal aid, including changes that might be needed to eliminate possible abuses”.
At the time, the scheme was costing £2m (€2.5m) a year and TDs were worried that it was getting out of control, having been just £500,000 (€635,000) six years earlier.
Ten years later, the cost had quadrupled again, to just under £8m (€10m), and Nora Owen established the second Criminal Legal Aid Review Committee, to see if there were ways the scheme could be made more efficient.
Another decade passed, and, in 2007, the bill had risen to €42m, and Brian Lenihan was the minister facing questions about the cost.
Lenihan told the Dáil that the sanctions on applicants, for making a false statement of means, were “under review”.
His successor, Dermot Ahern, took up the issue and, with annual bills hitting €60m, introduced the first of a series of cuts in the rates paid to lawyers and he promised new legislation to tighten up the assessment of applicants’ means and to punish lies or omissions.
Those proposals survived the change of government, in 2011, with Alan Shatter pledging much the same kinds of reforms, and his replacement, Fitzgerald, has been giving repeated assurances that the reforms are on the way, since she took over the job, in 2014.
The cost of the scheme fell from a high of €60m, in 2009, to €47m last year, although that is mainly due to rate cuts during the recession, rather than greater scrutiny of applicants’ means.
Nevertheless, in the programme for government agreed a fortnight ago, Ms Fitzgerald repeated her resolve to reform the scheme.
The programme states: “We will transfer responsibility for Criminal Legal Aid to the Legal Aid Board, who will have new powers to compel criminals to pay a contribution.
“We will also introduce a more rigorous and objective means-testing process for such applications, as well as increasing the sanction for false declarations and improving prosecution in cases of abuse.
“In parallel, we will examine the feasibility of a new public-defender system, and report to the relevant Oireachtas committee, and government, within six months.”
TO START with the last pledge, the idea of a public-defender system,which uses full-time, state-employed solicitors and barristers, instead of paying private practitioners on a per-case basis, has been explored before.
Judge Tormey’s 1975-81 committee examined it in detail and was split in its conclusions, although even those members in favour of a public-defender system felt it would have to be confined to the busiest court areas, such as in Dublin and Cork, and they said it could not be considered, even on a pilot basis, without a more thorough analysis by the Department of Finance.
Those opposed to the idea made the stronger arguments, throwing it out on principle, before ever getting to the issue of cost.
They argued that there would be a question mark over the independence of the lawyers, given that they, and the prosecution, would have the same employer — the State.
They said that defendants would have less confidence in a public defender, as a result, particularly in the non-jury Special Criminal Court.
Those in favour of a public-defender system argued that private practitioners were also being paid by the State, when they took on legal aid cases, but those who opposed it raised other concerns, quoting from a 1965 review carried out in Ontario, Canada.
It stated: “Observation of the system, in action, tends to support the fear that defences will become perfunctory, that little attention can be given to the run-of-the-mill case, that the entire scheme operates on an impersonal, production-line basis and that its overall effectiveness is not impressive.”
And so the matter rested, until Nora Owen set up the second Criminal Legal Aid Review Committee, in 1996, which produced its first report in 1999, specifically looking at the feasibility of a public-defender system.
This committee, chaired by Judge Gerard Buchanan, said it would not have major concerns about the independence or commitment of State-employed defence lawyers, once “proper protections and structures” were put in place.
However, it still came down in favour of retaining the existing criminal legal-aid system, partly because of the greater flexibility it offered the courts and the greater choice it allowed accused persons, but chiefly because, despite beliefs to the contrary, it was cheaper.
“The operation of the scheme is streamlined. It is administratively inexpensive and non-bureaucratic. This cannot be said of the public-defender systems that we studied,” they said, after travelling to Scotland, the US, and Australia, and after also gathering information from Hong Kong.
Concluding, they said: “The committee considers that the existing private-practitioner system for providing criminal legal aid should be continued, as it is a more equitable, effective, and economic system, in the current circumstances, than a public-defender system.”
So, have circumstances changed? Would a public- defender system be any more justified now?
Lawyers say all that has changed is that the current arrangement has become even more cost-effective and, by comparison with legal-aid systems in other jurisdictions, one of the cheapest in the world.
There is evidence, in neighbouring jurisdictions, to back up those claims. In Northern Ireland, after a concerted effort to reduce costs, it was expected the bill for last year would fall to £35m (€45.6m), after hitting a high of £60m (€78m), in 2009.
That’s close to the bill in the Republic, which has hovered around €50m for the last few years, but the €50m here covers a population two and a half times greater than in the North.
Across the water, in Birmingham, legal aid rates paid to lawyers were cut by 8.5% last year, but the scheme still cost £31.5m (€41m) — for a population of just 1.1m.
Ken Murphy, director general of the Law Society, will take a lot of convincing that there are grounds to reconsider introducing a public-defender system.
“This has been looked at, in detail, before, and our understanding is that it hasn’t been proceeded with for many good reasons, probably the most prominent of them being that it would actually cost the State more than the current system.
“It would involve all the costs of offices, overheads, staff, pensions — all that goes with creating a semi-state service.
“The second reason is that it would interfere with, if not completely undermine, the entitlement to freedom of choice of solicitor for the citizen who is accused and has rights, but doesn’t have the means to vindicate them.
“That is an important principle — that the person should not simply have a lawyer they have never met before allocated to them, rather than choose someone in whom they have trust and confidence.”
Mr Murphy is also unconvinced about what Minister Fitzgerald’s promise of a “more rigorous and objective means-testing process” for applications will achieve.
THE provision of legal representation is meant to be timely, especially if an accused person is in custody, so the Department of Justice has clarified that where more detailed scrutiny of a statement of means is required, it will happen after aid is granted.
“Where an examination of claims reveals that an applicant is in a position to bear the costs, or part of the costs, of legal aid, it is proposed that a process to enable recovery of same will be provided for,” the department said.
The Legal Aid Board, which currently administers the civil legal aid scheme, is to take over responsibility for this — and for criminal proceedings against applicants who lie about their income.
But it is hard to see how much money it would be likely to claw back, or how it can hope to do any of this without beefing up staff numbers.
“The effectiveness of undertaking means-testing, or reviews of this kind, in terms of any cost-reduction that might result, would have to be weighed carefully,” Mr Murphy says.
If there are extra resources, he says they need to go towards restoring some of the four rates-cuts imposed on lawyers between 2009 and 2011, which cumulatively totalled 28.5%.
“In the Law Society, we recognised the disastrous state of the public finances at the time, and reluctantly, but public-spiritedly, accepted the cuts without protest, but we did so on the basis that when the public finances improved, those cuts would have to be restored,” Mr Murphy says.
“This is not an area of work that is remotely close, in reward terms, to most others in the profession. It is motivated by a strong sense of duty to deliver a criminal legal aid service.
“But despite the instrinic motivation, and strong sense of duty, of solicitors providing a criminal legal-aid service, there comes a tipping point, where the sustainability of their practices must come first. We are certainly approaching that point.”
Veteran Kildare TD Bernard Durkan, however, has for years been tabling parliamentary questions about criminal legal aid and is adamant that the system needs to change.
“When people inquire about the availability of civil legal aid for family-law cases and other civil matters, they have to go through a strenuous examination, before getting it, and they don’t always get it, and even when they do, they often have to make contributions themselves. In many cases, their means are very limited, but they still don’t get a free hand-out.
“So, I think the time has come — the time is long past, in fact — for an examination of the extent to which the same rules should apply to criminal legal aid.”
Durkan’s last parliamentary question, earlier this month, attempted to elicit information on how many hardened criminals had received legal aid. The Department of Justice had to disappoint him on that one.
His current question, due for reply next week, seeks to discover how many criminal legal aid applications are refused.
Anecdotally, the answer to that is very few. It will be interesting if the official reply is any different.
“I would be strongly of the opinion that it shouldn’t naturally follow that criminal gangs can rely on the availability of free legal aid, regardless of how many times they use it.
“I know that, under the law, the criteria for granting legal aid does not look at the number of previous occasions a person has received it, but maybe the law needs to be changed and maybe access does need to be limited,” he says.
Mr Durkan says that, from the start, the onus should be on an applicant to provide detailed proof of their income and means, rather then have the investigative burden fall on the authorities, after an application is lodged.
“There needs to be public confidence in the system. It shouldn’t be allowed to be abused.
“So, let the person making the application prove that they are deserving and let them pay a partial contribution, if they can.”
Sally Hanlon also says a more rigorous assessment of legal aid entitlement is needed.
“From the victms’ point of view, it can be very frustrating,” she says.
“The courts are overstretched and everybody in that system is overstretched, and when a list is called over at district-court level, free legal aid seems to be handed out so fast.
“A name is called, a person comes forward, they’re asked ‘are you represented, have you free legal aid, have you a solicitor on the panel?’ and then it’s just a matter of ‘assign Mr So and So’ and it’s onto the next name.
“Victims feel, ‘we’re here, out of pocket, not getting our property or money that was stolen back, not having our damage repaired, losing out on pay for missing work, yet the State is paying to help the person who did this to us’. Even if someone was to make a minimal payment towards it, I think it would help with how it is perceived and it would be more appreciated.
“If you’re not paying for something, you don’t value it. You take it for granted. You won’t think twice about commiting further crimes, because you don’t have to think, ‘I can’t afford that again’. You don’t think, ‘I’ll have to go in and defend myself, because I won’t get legal aid again’.”
Support After Crime assisted 2,000 victims last year in Cork, Limerick, Waterford, Tipperary and Clare, and operates on a very tight budget.
“Our funding is like a dot in the ocean, compared to what’s available for legal aid. It would average about €60 a head and that would see a victim through initial meetings, preparing victim-impact statements, maybe going to court with them, which is crazy, really, when you think that tens of thousands of euro might be available for the offender,” Ms Hanlon says.
“I think everyone understands the need for free legal aid, but victims do feel that the scales of justice are balanced in favour of the offenders”.
‘Solicitors take on legal aid cases because it interests them’
It’s probably no surprise that lawyers defend the criminal legal aid system but they insist their motivation goes beyond self-interest.
Limerick based solicitor, Darach McCarthy, says that criminal law is the least well-paid specialism in the profession.
“About 90% of my work might be criminal legal aid but it would account for maybe 60-65% of my income,” he says.
So why do it? “It just happens my interest is in criminal law. For most people it’s because they’re interested in it — it’s not because they’re looking at it from a financial gain perspective.”
He disputes the perception that it’s an expensive system and points out lawyers have not only absorbed substantial rate cuts in recent years but have also seen their workload increase.
“Being a criminal defence solicitor has become far more complex in the last few years. We have a situation now where clients can have a solicitor attend a Garda station interview for example.
“We also have a situation where, when matters are being sent forward for trial to the circuit court, there are now all sorts of pre- arraignment procedures requiring a number of appearances in court where you’re not actually paid.
“Also, with electronic advances — with CCTV systems, mobile phone data and computer data — disclosure and evidence in cases can be far more voluminous and time-consuming and legal aid rates haven’t taken that into account.”
Mr McCarthy doesn’t mind Justice Minister Frances Fitzgerald’s plans for more rigorous assessment of legal aid applications but he doesn’t believe there is much abuse of the system.
“It is already an offence to lie on a statement of means form. From a solicitor’s point of view, if we give a document to a client to sign, we make sure that they’re fully aware of what’s on it so that they declare honestly.
“So from a professional point of view, I see no problem with reviews but I suspect they’ll find that there will be very little or no foul play there.
“And if there is, it’s a matter for the Criminal Assets Bureau. If the State has a suspicion that people have proceeds of crime which are not declared, the State have CAB there to call on.”
He is opposed, however, to any suggestion that legal aid would be restricted to a set number of offences as some TDs have suggested.
“In an ideal world where people don’t suffer from mental health issues and get into trouble, where people don’t have addiction issues, or learning difficulties, or suffer spousal abuse with significant poverty issues arising, or other impairments which are very difficult to resolve, then you could tie them down to a timeline of say, six appearances in court and after that you’re on your own, but I think that’s a rigid and uninformed viewpoint to take.”
He is also against the idea of a public defender system on the grounds that it would likely lead to the closure of provincial courthouses.
“You would have to have a public defender attached to every court so it would be in the State’s interest to minimise the numbers and, much in the same way that there have been garda station closures, I suspect peripheral courthouses would also close and you would have a much more centralised criminal justice system.”
Barrister Libby Charlton, chair of the Irish Criminal Bar Association, is also a strong supporter of the current system and particularly the principles behind it.
“With the public defender system in America, effectively what happens is that if you’re rich you have access to justice and if you’re poor, you don’t,” she
She also rejects calls for legal aid to be limited to a set number of offences: “Just because you committed a crime before doesn’t mean you committed this one.
“That’s a principle that’s really strongly entrenched in the law and that’s why juries aren’t allowed know about people’s previous convictions. You can’t let someone’s reputation convict them, you have to let a jury.
“I think we’ve forgotten about what we’re so proud of — that this is a very democratic, very fair, very egalitarian nation. These are higher principals that we defend.
“That two people of completely different demographics can be charged with the same offence and receive the same level of legal care is something we should be proud of, rather than trying to change.”
‘Families are crying out to be treated equally’
Brian Hennessy murdered Sharon Whelan and her two young daughters on Christmas Day 2008 and was provided with a legal team free of charge to help him through his trial.
Sharon’s devastated family had no such support.
It was an experience that led her brother, John Whelan, to join AdVic — which advocates for the families of homicide victims — and to become its campaigning chairman.
Sharon had been raped and strangled by Hennessy before he tried to cover up his crime by setting fire to her home, killing her little girls Zara, 7, and Nadia, 2, as they slept.
He received three life sentences but went to the Court of Criminal Appeal, where the three terms were reduced to one. He had his legal team with him all the way. He is due for a parole hearing in November, after just seven years in prison, and while he can’t have a solicitor present, he can use one to help him prepare a submission for the parole board.
Under proposed changes, the parole board could be placed on a statutory footing with the effect that prisoners would have to be legally represented, again using the services of free legal aid.
It leaves a sour taste in John Whelan’s mouth, yet he says the legal aid scheme is not a major concern. “It would not be high on our list of priorities of what we think needs to be changed in the justice system,” he says.
“It is an issue all right. When you look at the money that’s spent annually on free legal aid — and I accept the vast majority of people are entitled to it — but when you look at how victims and supports for victims are funded, there isn’t really a comparison. Counselling and therapy has to be provided free by the likes of ourselves in AdVic. We get some help from the Department of Justice but it’s not enough to provide the service that’s needed by our families. A lot of our time is spent fundraising.
“The balance is not there when it comes to investment in the likes of counselling for victims of homicide, or any violent crime for that matter.”
AdVic has long sought the right to legal representation for families of homicide victims, to enable them to prepare for and follow court proceedings fully informed of what’s ahead.
Under the European Victims’ Directive that became law last November, those services are meant to be provided by right, not necessarily by lawyers, but the effect would be the same.
“We’re still waiting for the Irish Government to transpose the directive into national law,” Mr Whelan says. The programme for government states: “We will publish legislation to implement in full the EU Victims of Crime Directive” but doesn’t commit to a deadline. Mr Whelan is aware of the Government’s intention to review the criminal legal aid scheme and says improvements such as greater transparency could be made.
“You ask anybody what are the parameters, what constitutes qualification for legal aid, and you don’t really get an answer. It seems very arbitrary.
“So maybe that needs to be tightened up a little bit and then, when there is appeal, after appeal, after appeal you do wonder is there a bit of a golden circle there. That could be looked at too. But our chief concerns are getting the Victims’ Directive transposed and making life mean life, because at the moment all a life sentence really means is that you’ll serve a minimum of seven years.
“Families are crying out to be treated equally. That’s all we’re looking for.”
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