Press release
Means tested Criminal Legal Aid can be withdrawn or cut from applicants under reforms
Published on
Last updated on
Published on
Last updated on
The Minister for Justice Helen McEntee and the Minister of State for Law Reform James Browne have today published the General Scheme of the Criminal Justice (Legal Aid) Bill 2023.
This Bill will modernise the operation of the Criminal Legal Aid Scheme, transferring administrative responsibility from the Department of Justice to the Legal Aid Board and introducing strengthened oversight and governance structures for the Scheme.
The Bill will introduce a number of reforms to safeguard the operation of the Criminal Legal Aid scheme, and to formalise existing procedures and strengthen controls where that is warranted.
It will introduce a simple and transparent written or online application system for Criminal Legal Aid, which will be required to be supported by a Statement of Financial Circumstances.
The Courts will continue to grant legal aid but will be able to impose a condition that the granting of legal aid is subject to a further assessment of income by the Legal Aid Board, where deemed necessary.
The Board will be able to make a recommendation that the applicant is of sufficient means to pay some of their legal costs themselves, rather entirely have it paid for by the State. Where appropriate, it can be recommended that some applicants make a contribution to the costs of providing legal aid.
It will also be open to the Court to refer a person to the Legal Aid Board for an assessment of income if they fail or refuse to provide information on their financial means.
Anyone who knowingly or recklessly makes false or misleading statements in relation to their financial circumstances, or another person’s financial circumstances, will be guilty of an offence that could lead to a €4,000 fine or six month’s imprisonment.
It will also be open to the court to amend the terms on which legal aid is granted, for example on objection by the prosecution, or where the person in receipt of legal aid has not co-operated with the court or with the Legal Aid Board.
Minister McEntee said:
“Access to legal representation is fundamental to ensuring fair access to justice and it is important that our legal aid architecture is appropriate and efficient.
“But it is also important that proper assessments are carried out when deciding if a person can qualify for Criminal Legal Aid. That’s why this new legislation will allow the courts, where the courts might consider it warranted, to refer an applicant to the Legal Aid Board for an assessment of their financial circumstances to be carried out under regulations to be drawn up under the terms of the Bill.
“The Board will then be able to recommend that a person can afford to contribute to their legal costs rather than have the entire bill borne by the taxpayer, and a court will make the final decision in the matter."
The Bill will also deliver on one of the key the reforms in Minister McEntee’s ‘Supporting a Victim’s Journey’ plan to reform the criminal justice system and make it more victim centred by extending the type of assistance the Legal Aid Board can provide.
It will be able to provide legal advice to a victim at any time after an offence, even where it is decided not to make a complaint or proceed with a prosecution, for offences including rape, sexual assault and sexual abuse of minors and people with mental illness or mental illness or intellectual disability.
It will also allow for legal advice to be granted to a parent, guardian or other responsible adult in certain cases. This would not apply if the parent or other responsible adult is the suspected or alleged offender. These changes are in line with commitments made by the Minister under Supporting a Victim’s Journey Supporting Victims of Crime and will be complementary to the modern capacity framework being established by the Assisted Decision Making (Capacity) Act 2015.
Minister McEntee added:
“The Bill will deliver on a number of important recommendations from my Supporting a Victim’s Journey Plan to reform the criminal justice system and make it more victim centred.
“Free legal advice is available to victims in cases involving sexual offences, and not just in cases where a decision has been taken to prosecute. This will be an important element of ensuring victims of some of the most sensitive and psychologically damaging crimes are better supported at every step in their journey through the criminal justice system.
“This new legislation will also transfer the administration of the criminal legal aid scheme from my department to the Legal Aid Board, extending the Legal Aid Board’s current remit. We have consulted widely on this proposal, including of course with the Board itself, and I am confident that the Board is appropriately positioned to manage and administer the system to a high level of efficiency and effectiveness."
Minister Browne said:
“This new legislation will devolve the operation of the criminal legal aid system from the Department of Justice to the Legal Aid Board. The criminal legal aid budget will transfer to the Board and the Chief Executive Officer of the Board will be accountable to the Public Accounts Committee for the accounts and expenditure, in the same manner as he or she accounts to the Oireachtas currently for expenditure by the Board.
“To strengthen oversight of the Scheme, the new legislation will provide for a new Oversight Committee involving stakeholders to provide necessary oversight and ensure effective cross-agency collaboration.
“The Scheme will now be referred to the Justice Oireachtas Committee for pre-legislative scrutiny and drafting of the Bill along the lines of the General Scheme will begin.
Criminal Legal Aid expenditure amounted to €81.2 million in 2022.
Under the Criminal Justice (Legal Aid) Act 1962 the courts, through the judiciary, are responsible for the granting of legal aid. An applicant must establish to the satisfaction of the court that their means are insufficient to enable the applicant to pay for legal representation themselves. The court must also be satisfied that by reason of the ‘gravity of the charge’ or ‘exceptional circumstances’, it is essential in the interests of justice that the applicant should have legal aid.