The Law Society has firmly rejected recent comments by the Minister for Justice, Jim O'Callaghan TD, which mischaracterise the position of criminal legal aid practitioners and the Law Society's engagement with changes to the Criminal Legal Aid Scheme.

Criminal defence practitioners and the Law Society have been consistent and transparent in their position since the Minister first announced proposals for the flawed changes to the Criminal Legal Aid Scheme.

The Law Society and solicitors have been calling for reform of the Criminal Legal Aid system for many years. Contrary to the Minister's recent public comments, the concerns raised by practitioners have never been with change itself, but with ensuring that any new model is practical, evidence-based, and capable of protecting the constitutional rights of accused people, while remaining sustainable for those who provide publicly funded legal representation.

The consistent message that practitioners and the Law Society have provided have focused on two specific and longstanding operational issues which, if left unresolved, will render elements of the Criminal Legal Aid Scheme unworkable in practice.

From the outset, criminal law practitioners and the Law Society have called on the Minister to address these two core issues with the Criminal Legal Aid Scheme, neither of which has yet been resolved:

· the unjustifiable treatment of separate and distinct criminal cases as a single matter where they happen, for efficiency, to come before the court on the same day; and

· the absence of any practical mechanism to address cases of extended duration involving exceptionally high numbers of court appearances. Typically, these cases involve children, people with mental health issues, and people remanded in custody by judges.

In a letter to the Minister on 31 July, Law Society President Rosemarie Loftus acknowledged several positive developments arising from recent correspondence and a meeting held on 27 July, including the splitting of fees into two instalments and a commitment to ongoing engagement with the profession as the new Scheme beds in. The Law Society also publicly welcomed these developments.

However, while progress has been made in some areas, the two core issues identified by practitioners from the beginning remain outstanding. The Law Society has consistently maintained that addressing these matters is necessary if the Scheme is to operate fairly and effectively in practice.

The letter of 31 July also contained practical solutions designed to resolve the Criminal Legal Aid dispute. These targeted adjustments to the Scheme have remained unchanged throughout discussions with the Department

In a further letter sent to the Minister for Justice, on 24 August, the Law Society sought an update on proposals to resolve these two outstanding issues with the Criminal Legal Aid Scheme. Both letters also reiterated that the Law Society remains available to meet with the Minister and Department officials to discuss practical solutions. The Law Society's commitment to constructive engagement has remained consistent throughout this process. 

Details of those two core issues and proposed solutions were included;

1.Separate and distinct cases

The first concerns the treatment of separate and distinct criminal cases that happen, for efficiency, to be before the court on the same day.

A solicitor instructed on multiple separate cases is not dealing with a single body of evidence or a single set of allegations or a single Garda or a single expert witness. Each matter requires separate preparation, consultation with the client, examination of evidence, legal analysis, and representation, with each case involving different complainants, different witnesses, different Garda investigations, different CCTV footage, separate and distinct disclosure obligations, separate and distinct legal issues and different factual circumstances.

For example, a defendant could be charged with a burglary that was alleged to have taken place in Dun Laoghaire in February, an assault that was alleged to have taken place in Swords in April, and a public order incident that was alleged to have taken place on Grafton Street in June.

These cases involve entirely separate and distinct locations, times and victims; yet they could be brought against the one defendant on the one day.

Under the current Scheme these cases would result in just one Legal Aid Certificate for €520 if commenced on the same date, whereas three Legal Aid Certificates would issue if these three cases commenced on separate dates. The workload involved in both scenarios is the same. The workload involved does not diminish or disappear merely because the cases happen to be listed before the same judge on the same day.

2.Complex cases of extended duration

The second issue concerns cases of extended duration. There are known cases where the length of proceedings, due to the number of court appearances, is considerably longer.

Typically, these cases involve children, people with mental health issues, and people remanded in custody by judges.

For cases involving children, the court exercises a more supervisory, rehabilitative type of role. There is often multi-disciplinary involvement from different state bodies including Tusla, the Probation Service, and the Garda Youth Diversion Programme.

For cases involving people with mental health or capacity issues, questions of fitness to plead can arise. In such circumstances, numerous adjournments are necessary to await psychiatric reports or due to delays in securing a bed in an appropriate care facility.

In cases where an accused is remanded in custody and unfit to plead, the law dictates that the maximum adjournment is for two weeks – leading to many appearances before the courts.

Where defendants are remanded in custody by judges, they are entitled by law to return to court every two weeks and may consent to extend that to every four weeks. There can be significant delays in these cases, such as waiting for a certificate of analysis in drug cases, waiting on directions from the Director of Public Prosecutions (DPP), or delays in obtaining books of evidence.

These cases almost always require additional time, additional appearances, repeated engagement with a solicitor - none of which is factored into the new Scheme.

Under the new Scheme, a solicitor who represents someone in court for a non-complex matter will be paid the same as someone who represents a troubled child in a complex case involving 20+ court appearances. Adjournments in these cases are not discretionary. They are driven by statutory and welfare obligations. In practical terms, this equates to an average of €26 per appearance before any account is taken of the substantial work carried out outside court. 

President of the Law Society, Rosemarie Loftus, said:

“Criminal law practitioners and the Law Society have been consistent on the issues with the changes to the Criminal Legal Aid Scheme since they were first announced by the Minister. There has been no change in the outstanding issues that need to be addressed. For the Minister to say that the Law Society "bags” concessions is fundamentally unhelpful commentary.

“The Law Society has consistently engaged in good faith throughout this process, putting forward practical proposals aimed at addressing the significant challenges arising from the new Scheme. Solicitors working in criminal legal aid play a vital role in the administration of justice, often under considerable pressure.

“The consistent concerns raised by criminal defence practitioners across the country are genuine. These concerns are focused on ensuring that vulnerable citizens continue to have access to legal representation, as is their Constitutional right. These concerns are not about resisting reform, but about ensuring that any changes to the criminal legal aid scheme are workable, fair, and sustainable for practitioners and the clients they serve.

“The message from practitioners is clear: addressing the two outstanding issues would substantially resolve the remaining concerns about the operation of the Scheme. We understand that, if implemented on an interim basis, these measures would make the Scheme workable for a significant majority of criminal legal aid practitioners while the Department's broader review of Criminal Legal Aid and wider criminal justice reforms are completed.

“The priority of criminal law practitioners and Law Society is on securing a fair and effective Scheme that serves the public interest and supports the proper functioning of the courts. It is our hope that meaningful dialogue in the coming weeks will deliver a solution that addresses the legitimate concerns of practitioners while ensuring the effective operation of the justice system.

“The Law Society remains committed to constructive engagement with the Minister and his Department. Our objective is to support reforms that are fair, practical and sustainable, while protecting access to justice and ensuring that those who rely on publicly funded legal representation can continue to receive effective legal services throughout the State.”