Law Society condemns ‘seriously flawed’ review
The Law Society has said it strongly rejects the claims made in the Department of Justice’s Review and Reform Proposal of the Criminal Legal Aid Fee Structure for the District Court, which have been reported in the media this week.
The document, which is underpinning its criminal legal-aid flat-fee proposal, makes multiple critical assertions about solicitors, yet fails to provide data to supports these assertions. Instead, the document is littered with anecdotes and individual examples, rather than systematic data.
The President of the Law Society Rosemarie Loftus, in a statement released on 18 June, says: “This is not evidence-based policy analysis. It is anecdote deployed as accusation. Criminal legal aid is not a discretionary spending line. It is the mechanism by which the State honours its constitutional obligation and its international obligations under the European Convention on Human Rights and established United Nations’ principles, to provide a fair trial to every person facing a criminal charge – regardless of means.
“It is worrying in the extreme that this non-evidence-based analysis is being used to support this flawed proposal from the Department of Justice,” she says.
‘Unfounded allegation’
The Law Society President continues: “The department’s document asserts that the higher rate of adjournments in legal-aid cases is down to financial motivation on the part of solicitors.
“This is a serious and unfounded allegation. The department fails to provide evidence to support this claim. The reality is that adjournments are most often driven by statutory requirements and State-side delays. These include delays in providing disclosure (such as CCTV and statements), delays in getting DPP directions, delays in serving books of evidence, delays in obtaining probation and restorative justice reports, as well as challenges accessing interpreters.
“For very legitimate reasons, the approach of the court to defendants in some legally aided cases can be different. As is well known to the department, each one of these adjournments must be granted by a judge who is independent of either the defence or prosecution in every case, and the State has every right to object to those requests in each case.”
Case complexity ignored
The department’s comparison of legal aid versus non-legal-aid cases completely ignores case complexity, rendering the department’s conclusion that solicitors cause delays analytically meaningless, the Law Society statement continues.
The reality is that those using Criminal Legal Aid are often vulnerable people, the Law Society adds. They are people struggling with addiction or serious mental-health conditions. They are homeless, victims of trafficking, people who are non-English speaking, and people in acute crisis.
Their cases almost always require additional time, additional appearances and patient, repeated engagement with a solicitor, the representative body says.
President Loftus concludes: “The Law Society is calling on the Minister for Justice to enter into genuine, structured consultation and engagement with the profession.
“Criminal defence solicitors perform an essential constitutional function. They are entitled to be treated as professionals who act in the interests of their clients – and not blamed for delays which are fundamentally the consequence of inadequate resourcing of the wider criminal justice system.”