Final Report

Criminal Legal Aid Review Committee

Final Report

February, 2002

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\10.00  Government of Ireland 2002 Criminal Legal Aid Review Committee 1997-2001

His Honour Judge Gerard Buchanan, Chairperson

Judge David Riordan, Judge of the District Court Mr. Jim Cahill, County Registrar, Laois *Mr. John Cronin, Department of Justice, Equality and Law Reform Ms. Finola Flanagan, Director-General, Office of the Attorney General Mr. Niall Lombard, Office of the Director Of Public Prosecutions Mr. James Mac Guill, The Law Society Mr. Noel McNaboe, Courts Service Mr. Patrick Marrinan, SC, The Bar Council Mr. Kevin Matthews, Office of the Chief State Solicitor Mr. Jim O’Farrell, Department of Finance Mr. Pearse Rayel, former Chief Executive of the Legal Aid Board Ms. Clare Kelly, Legal Aid Board

Mr. Sean Murphy, Secretary, Department of Justice, Equality and Law Reform

Former members of the Committee

* Ms. E´ imear Fisher was replaced by Mr. John Cronin in November, 2000.

Secretariat

1998-2001

Mr. Denis Byrne, Department of Justice, Equality and Law Reform

Table of Contents

Page Chapter 1 Introduction 7

Chapter 2 Conclusions and Recommendations 9

Chapter 3 Duty Solicitor Scheme 15

Chapter 4 Contracting 29

Chapter 5 Garda Station Visits 57

Chapter 6 The Attorney General’s Scheme 61

Chapter 7 Means Testing 67

Chapter 8 Parity Arrangements — Circuit and higher Courts 91

Chapter 9 Entitlements of a Defendant under the Scheme 97

Appendices

Appendix A Statement of Means Form 101

Appendix B Submissions to the Review Committee 103

Chapter 1

Introduction

Terms of Reference The Criminal Legal Aid Review Committee was established by the Minister for Justice, Mrs. Owen, T.D., in late 1996 to review the operation of the Criminal Legal Aid Scheme under the Criminal Justice (Legal Aid) Act, 1962 and to make recommendations as to the manner in which the Scheme might be improved so that it operates effectively and provides value for money. The Terms of Reference of the Committee also include, (i) a review of the levels of fees paid to solicitors and barristers, including any claims for changes to the Scheme made by the Law Society and the Bar Council in relation to the fees payable under the Scheme. (ii) an examination of the possibility of introducing an alternative system for providing criminal legal aid, specifically the introduction of a Public Defender Scheme. (iii) an examination of the experience of the Legal Aid Board in relation to the delivery of the Civil Legal Aid Scheme. (iv) a review of the current practices within the Public Service for determining a person’s means with particular reference to proposals being drawn up by the Department of Social Welfare Committee examining the development of an Integrated Social Service System.

Working Arrangements At its inaugural meeting on 15 January, 1997 the Committee decided to invite submissions from interested groups, practitioners and the public generally through advertisements in the national press. Twenty four written submissions were received. The Committee wishes to record its appreciation of those who assisted it by responding to its request. A list of the persons/groups from whom submissions were received is set out at Appendix B.

We also wish to acknowledge the generous assistance afforded to us by the law officers of the State, court officials and legal practitioners whose contributions assisted us greatly in our work.

First Report The Committee examined in its First Report the feasibility of introducing an alternative system for providing the criminal legal aid service, specifically a Public Defender System. The Report, which was published in February 2000, recommended that the current Scheme for providing criminal legal aid be continued as it was a more equitable, effective and economic system than a Public Defender System, at that time.

Following completion of the First Report the Committee examined, at the request of the Minister, the situation whereby criminal legal aid was not available for consultations between detained persons and solicitors at Garda stations. The Committee submitted an Interim Report

7 Criminal Legal Aid Review Committee — Final Report entitled ‘‘Payment of Fees to Solicitors in respect of Garda Station Visits’’ in April 2000 and the Interim Report is included in this Report.

The Committee notes that a Scheme to provide legal advice to persons detained in Garda custody, in certain circumstances, in connection with the investigation of an offence was implemented on 14 February, 2001 along the lines recommended in our Report. The Committee welcomes the introduction of the Scheme and considers it to be an important development in the provision of publicly funded legal advice services in this country.

In this Second Report we examine, — the merit of providing the criminal legal aid service by way of a Duty Solicitor Scheme, — the merit of providing the criminal legal aid service by way of contracting, — means testing applicants for legal aid, — the merit of incorporating the ‘criminal’ provisions of the non-statutory AG’s Scheme into the Criminal Legal Aid Scheme, — the Law Society claim for a break away from the ‘parity with counsel system’ of determining the fees payable to solicitors under the Scheme, and — the publication of an information leaflet setting out the entitlements of a legally aided person under the Criminal Legal Aid Scheme.

8 Chapter 2

Conclusions and Recommendations

This Chapter brings together all the conclusions and recommendations contained in this Report.

Duty Solicitor Scheme Recommendation 3.8 Having given serious consideration to the recommendations contained in the Tormey Report and the submissions received in this matter, the Committee considers that the implementation of a Duty Solicitor Scheme would not complement or improve the current Criminal Legal Aid Scheme, at this time.

In the circumstances, the Committee does not recommend the introduction of a Duty Solicitor Scheme. Our rationale for same is as follows:

(i) the representation and service provided under the existing Criminal Legal Aid Scheme vindicates the constitutional rights of persons charged before the Courts,

(ii) the existing Scheme operates with a minimum of bureaucracy,

(iii) we have found no evidence that the introduction of a Duty Solicitor Scheme would provide the same level of service in a more cost effective manner, and

(iv) the introduction of the Scheme of providing legal advice to persons detained in Garda Stations further safeguards the rights of persons who are charged before the courts following detention in Garda custody for the investigation of an offence.

Contracting Recommendation 4.9 On the basis of our investigation of the merit of providing criminal legal aid services by way of contracting, the Committee does not recommend the implementation of contracting, be it the US model or the England/Wales model, for providing criminal legal aid in Ireland.

Garda Station Legal Advice Scheme Recommendation 5.5 The Committee recommended that in circumstances where:

• a person is detained in a Garda station for the purpose of the investigation of an offence, and

• s/he has a legal entitlement to consult with a solicitor, and

• the person’s means are insufficient to enable him/her to pay for such consultation

9 Criminal Legal Aid Review Committee — Final Report

(i) consultations with solicitors should be paid for by the State, (ii) the remuneration of solicitors for consultations with detained persons should not come within the ambit of the Criminal Legal Aid Scheme because they precede the judicial phase of the criminal process, and (iii) pending the introduction of legislation to provide for the payment to solicitors for services referred to above, an administrative scheme should be introduced as a matter of urgency.

The Committee also considered that the Department of Justice, Equality and Law Reform and the Law Society should discuss the issues which arise in the above matter, prior to the implementation of an administrative arrangement to allow for same.

Attorney General’s Scheme Recommendation 6.7.1 On the basis of the analysis set out in section 6.6 the Committee recommends that the elements of the Attorney General’s Scheme specifically referred to in section 6.2 — 1, viz.

(i) Habeas corpus applications,

(ii) Bail Motions,

(iii) Such Judicial Reviews as consist of or include Certiorari, Mandamus or Prohibition and are concerned with criminal matters or matters where the liberty of the applicant is at issue,

(iv) Applications under section 50 of the Extradition Act, 1965 and extradition applications before the District Court, should be placed on a statutory footing and brought within the scope of the Criminal Legal Aid Scheme.

Means Testing Recommendations 7.10 The Committee could not achieve consensus on whether means testing should apply to the grant of criminal legal aid. However, the Committee decided, having regard to its terms of reference as determined by the Government that it would examine how best to apply means testing to the grant of criminal legal aid.

Recommendation 1 (1) The Committee does not favour the introduction of financial guidelines in the form of eligibility ceilings for the authority which decides on an application for legal aid as the capacity of an accused to pay for their own representation is contingent on such factors as the anticipated length of the trial, the complexity of the trial, the seriousness of the charges preferred and the actual means of the accused, all of which are intermeshed, thus making the introduction of such guidelines impractical as the matter is indeterminable.

10 Conclusions and Recommendations

(2) The Committee also recommends that a person in receipt of unemployment assistance, supplementary welfare allowance, family income support or a medical card should automatically be entitled to legal aid as such persons would already have undergone a means test conducted by a Government Department/Agency.

Recommendation 2 The Committee does not favour the introduction of a formal means testing system which would involve the mandatory completion of a Statement of Means Form by an applicant for criminal legal aid and the verification of the information supplied on the Form prior to the determination of the application because: — this would give rise to an additional cost for the State, — we suspect that the cost-benefit of such a procedure would be low, and

— such a formal system would give rise to inevitable delays in the processing of criminal business.

Recommendation 3 The Committee recommends the continuation of the existing system whereby the Court decides on an application for legal aid. The Court is independent and is in the best position to be aware of the factors which are present in each case in assessing the merit of an application.

Recommendation 4 The Statement of Means Form is an important part of the system and its completion should be left to the discretion of the court.

To strengthen procedures, we also recommend that Court Offices should send a random sample of Statements to the Department of Justice, Equality and Law Reform who would in turn transmit same to the Department of Social, Community and Family Affairs for verification. The Committee regards it important to point out that the implementation of this recommendation would not delay the criminal process as the Court would be enabled to proceed with the case as happens currently. However, the Committee considers that the verification process together with the appropriate penalties would reduce the potential for abuse. This would also allow for the identification of false applications and allow the Department of Justice, Equality and Law Reform to take whatever action it deemed appropriate.

Recommendation 5 We strongly recommend that the Statement of Means Form provided for under the Scheme be updated as we have set out in Appendix A of this Report. This would place the Court in a better position to conduct a meaningful assessment of the applicant’s means when determining an application for legal aid.

In addition, we recommend that persons in receipt of income support payments, of the kind referred to in question 8 of our proposed version of the Statement of Means Form, should be considered to have satisfied the means requirement for criminal legal aid.

11 Criminal Legal Aid Review Committee — Final Report

We also recommend that the Implementation Group established under the Government’s REACH initiative, referred to in section 7.7, be requested to examine and advise on whether the amended Statement of Means Form is in accordance with the criteria which the Group considers necessary to allow for proper determination of eligibility for an income support Scheme.

Recommendation 6 The Committee is not convinced that there would be a cost benefit if contributions were made by recipients of legal aid to the cost of same and, in the circumstances, recommends that contributions should not be payable by recipients of criminal legal aid.

Recommendation 7 The Committee recommends that the Court should not have the power to revoke a legal aid certificate.

Recommendation 8 The Committee does not recommend the introduction of a provision for appeals against a refusal to grant a legal aid certificate.

Recommendation 9 The Committee recommends that the Department of Justice, Equality and Law Reform take the appropriate steps with the Department of Social, Community and Family Affairs so that the Court would have access to the Central Means Database which will be set up under the REACH initiative.

Recommendation 10 The Committee recommends that the penalties for making a false declaration should be increased to a fine of up to one thousand five hundred pounds (one thousand and nine hundred euro) and/or imprisonment for up to twelve months. It should be noted that Section 11 (2) of the Criminal Justice (Legal Aid) Act, 1962 provides that upon conviction of an offence, the court may order the repayment of legal fees to the Minister for Justice, Equality and Law Reform.

‘Parity Arrangement’ governing the payment of fees to solicitors under the Criminal Legal Aid Scheme Conclusion 8.6 The Committee accepts that the work performed by solicitors in criminal cases differs from that carried out by barristers and that solicitors should be paid fees for cases under the Criminal Legal Aid Scheme which reflect the work they do. The Committee also accepts that there are circumstances where solicitors are not paid a fee due to the non-appearance of prosecution and defence barristers and such situations should be also be addressed.

12 Conclusions and Recommendations same time, retaining the ‘parity’ framework. The Committee considers this approach to be the most suitable way of addressing the issue raised by the Law Society and that it strikes a reasonable balance between providing the Law Society with a mechanism for pursuing its legitimate entitlement to being paid fees which reflect the work it’s members carry out under the Scheme whilst at the same time allowing the State authorities to retain the framework governing the payment of fees under the Scheme, which has proved successful.

The Committee considers that the ‘parity’ framework which operates under the Criminal Legal Aid Scheme enables solicitors to pursue any claim they might wish to make in respect of the payment of fees for cases under the Criminal Legal Aid Scheme and that this is the framework in which any such claims should be pursued.

Entitlements of a Defendant under the Criminal Legal Aid Scheme Recommendation 9.3 The Committee recommends that the Department of Justice, Equality and Law Reform, following consultation with the Law Society and the Bar Council, publish an information leaflet setting out the entitlements of a legally aided person under the Criminal Legal Aid Scheme on the basis of the criteria set out by the ‘Tormey’ Committee.

We further recommend that notices, which are sufficiently distinctive to attract attention, should also be displayed in Courthouses, Garda Stations and remand centres containing information on the entitlements of a legally aided person.

Chapter 3

Duty Solicitor Scheme

3.1 Terms of Reference

Item (ii) of the terms of reference required the Committee to examine the possibility of introducing an alternative system for providing criminal legal aid. The Committee’s First Report examined the feasibility of introducing a Public Defender System. In this Chapter we examine the merit of providing the criminal legal aid service by way of a Duty Solicitor Scheme.

3.2 What is a Duty Solicitor Scheme The essence of a Duty Solicitor Scheme is that solicitors in private practice are available on a rota basis to give assistance to defendants on their first appearance in the District Court. This assistance may include

(a) advising the defendant before the hearing,

(b) applying for bail,

(d) applying for an adjournment,

(e) making a plea in mitigation.

The essential difference between the Criminal Legal Aid Scheme and a Duty Solicitor Scheme would be that, instead of the current situation whereby accused persons of insufficient means who are granted legal aid on their first appearance are assigned a solicitor of their choice from the panel, all accused persons of insufficient means, who did not have a private solicitor, would be represented by the Duty Solicitor on their first appearance in court. The Duty Solicitor could make a plea in mitigation on behalf of those wishing to plead guilty and could apply for a legal aid certificate on behalf of those wishing to plead not guilty. If legal aid was granted, the accused could either request the Duty Solicitor or a panel solicitor of his/her choice to represent him/her.

3.3 The ‘Tormey’ Committee and the Duty Solicitor 3.3.1 The ‘Tormey’ Committee examined the possibility of introducing a Duty Solicitor Scheme in it’s Report dated 9 April, 1981.

Paragraph 7.2.3 of the Report stated that

‘‘The attraction of a Duty Solicitor Scheme from the point of view of accused person is, firstly, that everybody has the opportunity of seeing a solicitor before he goes into Court and, secondly, that those that wish to do so can have their cases disposed of on their first appearance. The attraction for the State is that it could reasonably be expected that a large

15 Criminal Legal Aid Review Committee — Final Report

number of cases could be dealt with on first appearance at much lower cost than under the present system.’’

With regards to the cost of such a Scheme, Paragraph 7.3.3 of the Report stated that ‘‘We consider that the Duty Solicitor should receive a fee in respect of the first person whom he assists during the morning or afternoon session of his ‘duty’ day plus a reduced fee in respect of each of the other persons assisted on that morning or afternoon, subject to maximum morning and afternoon payments. We consider that the fee in respect of the first person assisted during the morning session should be the current District Court fee for a one-day hearing. The fee in respect of each of the other persons assisted in the morning should be twenty per cent of the current District Court fee for a one-day hearing subject to the condition that no fee be payable in respect of the seventh or any subsequent person assisted on that morning. We consider that afternoon sessions should be treated separately, the fees being arrived at in exactly the same way as for morning sessions.’’

The ‘Tormey’ Committee considered that a Duty Solicitor Scheme should be introduced on an experimental basis and recommended that a Pilot Scheme be introduced in the Dublin Metropolitan District Court or the Childrens’ Court (or both).

3.3.2 Given that the services provided by a solicitor under a Duty Solicitor Scheme are closely related to the services which a solicitor would provide to a person who is detained in a Garda station for the investigation of an offence, it is considered pertinent to mention that the ‘Tormey’ Committee also examined the possibility of introducing a scheme whereby a solicitor would be paid for providing legal advice to a person in Garda custody.

In the above connection, the ‘Tormey’ Committee recommended that a solicitor who is called to a place where a person is held in custody (including a Garda station) in order to give legal advice should be paid for his services, if that person is eligible for legal aid.

With regard to the ‘Tormey’ recommendations on the Duty Solicitor issue, this Committee considers it important to point out that there have been changes to the Scheme since the publication of the ‘Tormey’ Report, viz.

(i) High Court decision in the State (Freeman) v. Connellen 1986 [No. 656 SS],

(ii) the introduction of a Scheme to provide free legal advice to a person of insufficient means who is detained in a Garda station for the investigation of an offence, and

(iii) other structural and procedural changes which provide a different context for our review.

3.4 Proposals contained in Submissions In its submission to the Committee the High Court Bench stated that it considered that the Tormey Committee recommendation that a Duty Solicitor Scheme be introduced in the Metropolitan District was a very worthwhile proposal and recommended that it be given further consideration.

16 Duty Solicitor Scheme

The Association of District Court Judges submitted that, inter alia, ‘‘the introduction of a Duty Solicitor Scheme in Dublin Metropolitan Custody Courts, the Dublin Children’s Court and the City Courts of Cork, and Limerick and perhaps Galway and Waterford should be considered and we would urge be implemented ...... and in addition to visiting the Courts {the Duty Solicitor} should have to visit places of detention such as Garda Stations.’’

The Committee’s consideration of the above views is set out in the analysis of the merit of introducing a Duty Solicitor Scheme in Ireland in section 3.7.

The Committee considers it pertinent to mention at this stage, however, that since the above submissions were made there have been changes to the Scheme which are relevant to this issue, specifically, the introduction of a Scheme to provide free legal advice to a person of insufficient means who is detained in a Garda station for the investigation of an offence.

3.5 The operation of the Duty Solicitor Schemes in Scotland and England/Wales. 3.5.1 Scotland The Scottish Legal Aid Board, under the provisions of the Criminal Legal Aid (Scotland) Regulations, 1996, makes the arrangements for a duty solicitor to be available at all times in each of Scotland’s 49 sheriff and 55 district courts. These rotas are drawn up on an annual basis (January to December) and all solicitor firms are invited to apply for inclusion on a duty plan.

While access to the Duty Solicitor Scheme is free, a person who opts to be represented by a private solicitor must pay for same.

All duty solicitors are private solicitors apart from the solicitors employed in the Public Defence Solicitor’s Office. The relationship between the Duty Solicitor Scheme and private solicitors who carry out criminal legal work is usually very good and there is a free exchange of information between the duty solicitor and other solicitors at court.

Selection To be eligible for inclusion on a plan a solicitor must — Hold a practising certificate with no restriction affecting his/her entitlement to undertake legal aid work. — Have a place of business within the sheriff or district court area for which the duty plan is being prepared and conduct the majority of business within that court. — Have been accepted onto the Criminal Legal Assistance Register.

In all, 1500 solicitors applied for inclusion in the year 2000 plan. In some of the busier courts there is a waiting list for inclusion on the plans. Other courts in the more remote areas are usually not as popular and special arrangements are sometimes needed to draft in solicitors from other areas to ensure that these courts are covered at all times. The period of duty varies from 2/3 days in the busier courts to one month in some of the remoter areas. However,

17 Criminal Legal Aid Review Committee — Final Report solicitors are usually quite keen to be involved as duty solicitors as this can open up new business contacts.

Duties The duties to be performed by the duty solicitor include attendance at any identification parade where his/her services are required; attendance on any person who has been taken into custody on a charge of murder, attempted murder or culpable homicide and advising and acting for such a person until s/he is admitted to bail or is committed until liberated in due course of law; advising and acting for any person in custody whose case is being prosecuted under solemn procedure, on the date when that person is first brought before a sheriff for examination and thereafter until s/he is admitted to bail or is committed until liberation in due course of law; advising and acting personally for any person who is being prosecuted under summary procedure, who is either in custody or appearing on the undertaking on the day when that person is first brought before a court to answer any complaint and thereafter; (i) until the conclusion of the first diet (hearing) at which s/he is called upon to plead and in connection with any application for liberation following upon that diet; and (ii) where s/he has tendered a plea of guilty at that diet until the case is finally disposed of.

The Duty Solicitor should advise accused persons as to their right to select their own solicitor. It is part of the duty solicitor’s function to represent the interests of an accused person even though that person will be represented by another solicitor.

Cost (i) The fees payable to a duty solicitor representing accused persons in the sheriff or district court are as follows:

(a) for attendance at the first *session of a court for the day, a sessional fee of £44.40 for the first case and £6.00 for each additional case, subject to a maximum total fee of £96.25 for the session until its termination on completion of business for the day or an adjournment by the court, whichever is the earlier;

(b) for attendance at any other session of that court on the same day, a sessional fee of £44.40 for the first case and £6.00 for each additional case, subject to a maximum total fee of £64.55 for each such other session.

The above fee covers the appearance in court of the duty solicitor on behalf of the accused as well as any interviews with the accused or others during the same or another session.

*There is no definition of session. It appears that, however, in the context of the fees regulations that session refers to a block of work carried out at any given time terminating only on completion of business for the day or on an adjournment by the court.

18 Duty Solicitor Scheme

(ii) Where, following a plea of guilty, one or more adjournments are ordered by the court, and the duty solicitor is required to appear again, then an additional fee is payable in respect of— (a) additional interviews with the accused or others; and (b) attendances at court other than during the course of the duty solicitor’s period of duty,

and the amount of such fee shall not exceed £108.85.

(iii) Where a Duty Solicitor makes a preliminary plea to the competency or relevancy of the petition or complaint, or conducts any plea in bar of trial or any mental proof for accused persons in the sheriff or district court, an additional fee is payable which shall not exceed £108.85.

The cost of the service for the year 1998/1999 was £943,000. 27,397 accused persons were represented under the Scheme giving an average cost of £34 per accused person.

3.5.2 England and Wales The Legal Aid Board is responsible for the Duty Solicitor Schemes as part of its wider responsibility for legal aid. The Scheme is operated through a three tier structure of committees:

Duty Solicitor Committee — has overall responsibility for the implementation and operation of court and 24 hour duty solicitor schemes including formulating policy and updating the Duty Solicitor Arrangements (rules by which the Schemes are run).

Regional Duty Solicitor Committees (24) — are responsible for ensuring that local schemes are run according to the Duty Solicitor Arrangements.

Local Duty Solicitor Committees (300) — are responsible for running schemes covering all courts and police stations in the area and for helping the Board to provide a quality service to the public. They are also responsible for the selection, reselection and discipline of duty solicitors, drawing up rotas and publicising the schemes.

The Court Duty Solicitor Scheme was introduced in the Legal Aid Act, 1982 and the 24 Hour Duty Solicitor Scheme was introduced through the Police and Criminal Evidence Act, 1984 (PACE).

The purpose of the Court Scheme is to ensure that almost anyone who appears before a magistrates or juvenile court for the first time in connection with a criminal charge and has no- one to represent him/her can receive advice and representation free of charge from an experienced solicitor. The 24 Hour Scheme is designed to provide a service which ensures that suspects being questioned by the police have access to free legal advice at all hours of the day or night.

All magistrates courts in England and Wales are provided with duty solicitor cover and there are between 400 and 500 such courts. The total number of duty solicitors is just under 6,000.

19 Criminal Legal Aid Review Committee — Final Report

Selection All Duty Solicitors must— have comprehensive experience of magistrates’ court work throughout the previous 12 months,

be competent to work as a Duty Solicitor, and

have attended training.

A Court Duty Solicitor must have an office which is either within the area covered by the court or reasonably accessible to the court for the convenience of defendants who may wish to instruct him or her. A 24 Hour Duty Solicitor must have a home or office within 45 minutes travel time of the relevant police stations.

Duty Solicitors are subject to reselection every five years.

The Court Scheme — Duties The Court Scheme provides for Duty Solicitors to both advise and represent defendants making their first appearance in connection with a particular offence before a magistrates or juvenile court and who have not already instructed a solicitor to represent them. The Duty Solicitor can apply for an adjournment and bail and can undertake a guilty plea. Where the defendant has decided to plead not guilty the Duty Solicitor can assist in applying for a legal aid order. Duty Solicitors are also available to assist defendants who appear before the court for not having paid a fine or who have disobeyed an order of the court. Representation is not normally provided in connection with non-imprisonable offences. The service is free; there is no means test nor does the client have to pay any contribution for help from the Court Duty Solicitor.

The Court Duty Solicitor Schemes operate differently depending on the number of cases heard and the demand for assistance at particular courts. Where a court is designated as ‘busy’, it is usual for the court to have a Duty Solicitor in attendance until it is established that s/he is no longer required that day. Where a court is designated as ‘less busy’, a Duty Solicitor is usually not in attendance but can be called in if required. Solicitors who attend court are paid an hourly attendance rate but those called in are only paid when actually required.

The 24 Hour Scheme — Duties The 24 Hour Scheme ensures that suspects being questioned by the police have access to free legal advice at all hours of the day or night. The Scheme is advertised in all police stations. A suspect may choose his/her own solicitor, the Duty Solicitor or a solicitor from a list of local solicitors. This advice is free and without a means test for either the Duty Solicitor or own solicitor.

24 Hour Duty Solicitors are organised in two ways. The first is by rota whereby an identifiable solicitor is on duty at a particular time and is paid a standby fee. The second method is a panel arrangement whereby the first available solicitor on a panel advises the suspect and is paid accordingly.

20 Duty Solicitor Scheme

Cost (i) The fees payable to a duty solicitor representing accused persons in the magistrate’s court are:

(a) £50.75 per hour for work actually and reasonably done, in accordance with the scheme, including attendance and waiting, and

(b) £25.00 per hour travelling time to and from his/her place of work.

(ii) The fees payable to a 24 hour duty solicitor representing accused persons are:

(a) £45.50 per hour for advice and assistance given to a person arrested and held in custody. This fee is increased to £60.00 per hour where such advice and assistance is given during unsocial hours,

(b) £45.50 per hour travelling and waiting time. This fee is increased to £60.00 per hour during unsocial hours,

(d) £3.50 per item for routine telephone calls, and

(e) £3.65 per hour served up to a maximum of £87.60 for availability during duty period.

In 1998/99 the cost of the Court Duty Solicitor Scheme was £16.177m. 266,727 accused persons were represented under the Scheme giving an average cost of £60.65 per accused person. The cost of the 24 Hour Duty Solicitor Scheme was £35.037m. 254,957 accused persons were represented under the Scheme giving an average cost of £137.42 per accused person. The overall average cost of the Duty Solicitor Schemes was £99.03 per accused person.

3.5.3 Northern Ireland There is no Duty Solicitor Scheme in operation in Northern Ireland. However, there is a scheme which provides free advice and assistance to persons detained in police stations or holding centres.

3.6 The Duty Solicitor — where would it operate and what would it involve 3.6.1 Criminal jurisdiction of the District Court Before commencing the analysis of the merits of implementing a Duty Solicitor Scheme, the Committee considers it useful to profile the criminal jurisdiction of the District Court, it being the Court in which such a Scheme would mainly operate, should it be implemented.

Every criminal prosecution whether indictable or summary is initiated in the District Court except for a small number of cases where the accused is charged initially before the Special Criminal Court.

In criminal matters, the District Court deals with cases involving:

21 Criminal Legal Aid Review Committee — Final Report

(i) Minor offences triable in a summary way before the District Court. This makes up the bulk of the work of the District Court; (ii) Indictable offences specified in the relevant legislation as triable summarily on the basis that in the view of the judge, the facts alleged constitute a minor offence, that the accused, on being informed of his/her right to be tried by a jury, does not object to being tried summarily, and that, in the case of certain offences, the Director of Public Prosecutions has consented to a summary trial; (iii) Indictable offences (other than certain offences including rape, aggravated sexual assault, murder, treason and piracy) where the accused, when before the District Court, pleads guilty and the Judge is satisfied that he understands the charge. With the consent of the Director of Public Prosecutions the Judge may deal with the cases summarily. Otherwise, the accused is sent forward to the Circuit Court for sentence. When before the Circuit Court he may withdraw his/her plea and alter it to ‘not guilty’ in which case a trial takes place; (iv) Indictable offences not triable summarily. In such case, there is a preliminary examination by the Judge. The accused is served with a statement of the charge and of the evidence intended to be adduced, with a list of witnesses and exhibits. Evidence may be taken on deposition if either side so requires. The Judge considers the material before him/her and any submissions on behalf of prosecution or accused. If s/he thinks there is a sufficient case, s/he sends the accused forward to the Circuit Court, Central Criminal Court or Special Criminal Court for trial. Otherwise, s/he discharges him/her.

(Part III of the Criminal Justice Act, 1999 provides for the abolition of preliminary examinations and this part of the Act was brought into force in October, 2000. The net effect of the change is that the District Court will no longer have a role in deciding whether there is ‘‘a case to answer’’ before sending a person forward for trial to the court in which s/he is to stand trial).

3.6.2 Operation of a Compulsory Court Duty Solicitor Scheme As stated in section 3.2, the essence of a Duty Solicitor Scheme is that solicitors in private practice would be available on a rota basis to give assistance to defendants, who have insufficient means to represent themselves, on their first appearance in the District Court. This assistance may include such as: (a) advising the defendant before the hearing, (b) applying for bail, (c) applying for legal aid, (d) applying for an adjournment, (e) making a plea in mitigation.

The difference between the Criminal Legal Aid Scheme and a Duty Solicitor Scheme is that the former provides for the assignment by the court of a solicitor from a legal aid panel to an accused (of insufficient means) — the court having taken account of any views expressed by the accused in relation to their choice of solicitor. The ‘Duty’ Scheme on the other hand would operate on the basis that all accused persons on their first appearance before the court, who

22 Duty Solicitor Scheme had insufficient means to consult their own solicitor, would be represented by the solicitor ‘on duty’ that day. If the Duty Solicitor was to, inter alia, make an application for a legal aid certificate on behalf of the accused which was granted, the accused could either request the Duty Solicitor or a solicitor of his/her choice from the panel to represent him/her in subsequent hearings.

The implementation of a ‘Duty’ Scheme would require the establishment of an administrative corps to, inter alia, (i) put a panel of duty solicitors in place, (ii) set up a rota of solicitors for duty, (iii) monitor the courts to ensure that there was a duty solicitor available in each court, and (iv) perhaps also, administer the application of means testing, if it were introduced.

The purpose of this exercise is to examine the operation of the Duty Solicitor Scheme in other common law jurisdictions and assess whether there is any merit in introducing a similar scheme here. In this regard, we have profiled the systems in operation in Scotland and England/Wales, under which the Duty Solicitor represents all persons brought before the court on the first day charges are preferred against them (unless they have their own solicitor), and under which they have the option of retaining the services of said solicitor if their case continues beyond the first day or nominating a solicitor of their choice.

Thus, we intend to discuss the possible implementation of a Duty Solicitor Scheme in Ireland, vis-a`-vis, what might be described as the ‘classical’ Duty Solicitor Scheme which operates in the above jurisdictions.

The Committee also identified a form of legal aid/advice service whereby a person who did not have a private solicitor, and who did not make prior contact with a legal aid panel solicitor, would be able to avail of the services of a Duty Solicitor. However, after some consideration, this option was ruled out on two grounds as follows: (i) there is no evidence to suggest that there is a critical lacuna in the provision of representation to accused persons on the day a person is initially charged before the court, and (ii) the considerable cost which would arise if solicitors were paid for being on call for the possibility, however slight, that their service might be required.

3.7 Analysis of implementation of a Duty Solicitor Scheme in Ireland 3.7.1 Issues which would arise should Duty Solicitor Scheme be introduced. We note that the ‘Tormey’ Committee was in favour of introducing a Duty Solicitor system on an experimental basis in the Dublin District Court or the Children’s Court. In their submission to the Committee, the Benches of the High Court and the District Court made the same proposal as Tormey, with the District Court also suggesting that a Duty Solicitor could also be introduced in the City Courts in Cork and Limerick.

23 Criminal Legal Aid Review Committee — Final Report

3.7.2 In analysing the merit of introducing a ‘Duty’ scheme, we will firstly profile the positive or neutral aspects to its introduction vis-a`-vis the existing system. (i) Delivery of Service — uniformity The Criminal Legal Aid Scheme operates in a uniform way throughout the country in that each county has a panel of solicitors in private practice who are willing to be assigned to persons who have been granted legal aid. The implementation of a national Duty Solicitor Scheme would ensure a continuation of the uniform delivery of the criminal legal aid service. (ii) Independence As any Duty Solicitor Scheme which might be implemented would be provided by practitioners in private practice, as is the position with the existing scheme, the level of independence which it would provide would equate to that which is currently provided. (iii) Flexibility The capacity of the existing system to respond effectively to significant increases or decreases in the volume of cases prosecuted in the courts would not be undermined by the introduction of a Duty Solicitor Scheme. The introduction of such a scheme would not, accordingly, give rise to concerns in this respect.

3.7.3 Following our analysis, we consider that the following factors render the implementation of a ‘Duty’ Scheme to be less attractive. The Committee considers it pertinent to mention in this context that two important issues mentioned in paragraphs (ii) and (iii) below have arisen subsequent to the Tormey Committee report. (i) Quality of Representation While it is difficult to assess the quality of service provided in the existing system without an independent evaluation, it is accepted that under the Scheme, persons who are granted legal aid would generally receive a high standard of representation. One of the perceived strengths of the existing system is that it provides representation on a ‘vertical’ rather than ‘horizontal’ basis. ‘Horizontal’ representation involves the defendant being represented by a different lawyer on each court appearance, as distinct from the ‘vertical’ system of representation — which operates in this jurisdiction — whereby the lawyer assigned to the case on ‘day one’ almost invariably continues to represent the accused to the point when the case or appeal is completed. (ii) Consultations by solicitors with persons detained in Garda stations The first issue relates to this Committee’s understanding that our Interim Report on the payment of fees to solicitors in respect of Garda Station visits has been adopted by the Department and that a Scheme has been put in place by the Department, following consultation with the Law Society, which provides for the payment of a fee to solicitors for consultations with persons detained in Garda stations. Given that such persons will have access to a solicitor during the time of their detention it would seem preferable, from the point of view of the accused person (where charges have been preferred against the person following their detention) and, indeed, the court, that such persons have immediate access to the solicitor who advised him/her during the period of detention in the Garda station, rather than be represented by a solicitor who happened to be ‘on duty’ on the day the person was first brought before the court. If a Duty Solicitor Scheme was to

24 Duty Solicitor Scheme be implemented, it would lead, almost inevitably, to a situation where the continuity of ‘representation’ from the time the person is detained in a Garda station to the time the case is completed being broken. This would, therefore, give rise to a situation where there is a certain duplication in the provision of representation.

(iii) Choice In relation to the issue of choice of representation, we are on record as holding the view that the element of choice which exists under the existing Scheme and all that it entails is one of its greatest strengths as it creates conditions for independence and client confidence. Moreover, importantly and subsequent to the finalisation of the ‘Tormey’ Report, the High Court in the State (Freeman) v. Connellan [No. 656 SS] case has effectively interpreted the 1965 Criminal Legal Aid Regulations as meaning that a poor person, once granted a legal aid certificate, has the right to choose the legal aid solicitor s/he wishes to represent him/her. If a Duty Solicitor Scheme is to work properly, it would be necessary for accused persons to avail of the services of the solicitor on ‘duty’ each day. To this end, it would be necessary to limit an accused person’s choice on his/her first appearance to the Duty Solicitor. Accused persons who would be represented by a Duty Solicitor on their first appearance would, of course, have the option of requesting that their own solicitor be assigned to represent them during subsequent appearances. However, this could lead to duplication of representation and may, in itself, give rise to adjournments and delays in the prosecution procedure.

It is also arguable that the changes in representation which would be likely to be brought about by the introduction of a ‘Duty’ scheme for the reasons set out in this paragraph and the previous one would undermine, at least to some extent, the level of client confidence which exists within the system. If this were to materialise, the Committee would view it as a serious negative factor.

(iv) Summons/Charge Sheets Offences prosecuted in the District Court, referred to in paragraph 3.6.1, are initiated by way of summons or charge sheet. Given that 89% of cases are prosecuted by way of summons and defendants in such cases would have prior notice of the hearing of a case — typically in excess of a month — the likelihood is that most defendants who require the assistance of a solicitor will have had ample opportunity to have contacted a solicitor in advance of their court appearance, thus reducing the full benefit of the ‘Duty’ scheme.

(v) Protection of the rights of the accused The Tormey Report stated that the attraction of a Duty Solicitor Scheme from the point of view of accused persons is that everybody has the opportunity of seeing a solicitor before he goes into Court. While it would no doubt be helpful to both the accused and the court if all persons had the benefit of legal representation at the first hearing of their case, the Committee has no evidence to suggest that there is a critical lacuna in the provision of representation to accused persons on the day a person is initially charged before the court.

Because of the Supreme Court ruling in the State (Healy) v Donoghue [1976] I.R. 325 case which has, effectively, determined that the right to criminal legal aid is, in circumstances which are quite wide in practice, a constitutional right, it is understood that the courts would grant a legal aid certificate and appoint a solicitor to an accused, if they

25 Criminal Legal Aid Review Committee — Final Report

were not represented, before proceeding with their case where, of course, other relevant criteria relating to means and the interests of justice were satisfied. (vi) Accused’s entitlement to Copies of Witnesses’ Statements Pleas of guilty in the District Court are infrequent unless the accused person has obtained some prior disclosure of evidence (DPP v. Gary Doyle, SC No. 199/93, 9 March, 1994) such as a copy of statements or a summary of the evidence to be adduced and an indication of the identity of the witnesses. Invariably, there would be at least one adjournment to allow that person consult with a solicitor to deal with these matters unless disclosure is given by the prosecution on a voluntary basis before the first appearance. The ‘Tormey’ Report stated that the attraction of implementing a ‘duty’ scheme from the State’s viewpoint is that it could reasonably be expected that a large number of cases could be dealt with on the first appearance at a much lower cost than under the present system. It is arguable, in view of the points made in the foregoing paragraphs, that the contention that cases would be disposed of on the first appearance would actually arise in practice. (vii) Administration and cost Solicitors are remunerated according to a predetermined fee structure under the Criminal Legal Aid Scheme. There is very little bureaucracy attached to the Scheme and it is administratively inexpensive. However, the Committee considers that a Duty Solicitor Scheme has the potential to be bureaucratic and administratively expensive as there would be a need to (a) put a panel of duty solicitors in place, (b) set up a rota of solicitors for duty, and (c) monitor the courts to ensure that there was a duty solicitor available in each court.

In regard to the question of cost, it is considered that the absolute minimum staff cost for the operation of a ‘Duty’ Scheme would be £363,000 (\460,915) (one full-time EO to maintain a national register of solicitors willing to operate as Duty Solicitors, liaise with the Law Society and Courts Service, as required, deal with the question of fees/conditions, etc. = £18,000 (\22,855) and a CO in each District Court District to manage the day to day operation of the Scheme in each court area, e.g. set up and monitor the rota, etc. 23 x £15,000 (\19,046) = £345,000 (\438,060)).

The cost of paying solicitors for being on call, whether or not their service was required, would also have to be considered.

(viii) Means Testing Under the Criminal Justice (Legal Aid) Act, 1962 the courts are responsible for the granting of legal aid. An applicant for legal aid must establish to the satisfaction of the court that his/her means are insufficient to enable him/her to pay for legal aid him/herself. This is purely a discretionary matter for each court and is not governed by any financial eligibility guidelines. When granting legal aid, 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. An applicant may be required by the court to complete a statement of means.

26 Duty Solicitor Scheme

With regard to the operation of the Duty Solicitor Scheme, it would also be necessary to introduce some form of means test to decide whether an accused person was entitled to see a Duty Solicitor. This would be extremely difficult given the short time available between a person arriving in the court and the commencement of that court. The importance of representation to a criminal defendant is set out in the State (Healy) v Donoghue [1976] I.R. 325 case which made it clear that the accused is entitled to be informed by the Court in which s/he is appearing of his/her possible right to legal aid. This leads to the very important question as to how means testing should apply in relation to one’s right to be represented by the Duty Solicitor. One option is that such applications could be decided by the District Court Clerk. The second option is that the court would decide on all applications. Neither option is entirely satisfactory. Option 1 could lead to a person being denied Duty Solicitor representation by the District Court Clerk and, as a result of same, not receiving legal aid. This may run contrary to the constitutional position, as it is understood following the State (Healy) v Donoghue case, that an accused person who faces serious charges and who cannot afford to pay for legal representation has a constitutional right to legal aid. If the court were to determine applications for the provision of legal aid by the Duty Solicitor, it would place the Duty Solicitor in a position where s/he might consult/advise a defendant pre court whose application for legal aid would subsequently be refused by the court. This would be unsatisfactory.

3.8 Recommendation Having given serious consideration to the recommendations contained in the Tormey Report and the submissions received in this matter, the Committee considers that the implementation of a Duty Solicitor Scheme would not complement or improve the current Criminal Legal Aid Scheme, at this time.

In the circumstances, the Committee does not recommend the introduction of a Duty Solicitor Scheme. Our rationale for same is as follows: (i) the representation and service provided under the existing Criminal Legal Aid Scheme vindicates the constitutional rights of persons charged before the Courts, (ii) the existing Scheme operates with a minimum of bureaucracy, (iii) we have found no evidence that the introduction of a Duty Solicitor Scheme would provide the same level of service in a more cost effective manner, and (iv) the introduction of the Scheme of providing legal advice to persons detained in Garda Stations further safeguards the rights of persons who are charged before the courts following detention in Garda custody for the investigation of an offence.

Chapter 4

Contracting

4.1 Terms of Reference As stated at the outset of Chapter 3, the terms of reference of the Committee require us to, inter alia, conduct an examination of the possibility of introducing an alternative system for providing criminal legal aid. In this section we will examine the merits of Contracting for the provision of criminal representation in court.

4.2 Contracting and the core issue for the Committee The central issue which faces the Committee in advising Government in this matter is whether the provision of criminal representation by way of contracting would result in a similar quality of representation being provided at a lower cost or an improved quality of representation being provided at a similar cost taking account, of course, of the cost of administration of a system of contracting.

4.3 What is Contracting The Committee considers it useful at the outset to define what contracting means. We, accordingly, define contracting as a system whereby the purchaser of the legal aid service enters into contracts with firms or individual lawyers for the provision of an agreed amount of work at a fixed price, the work and price both usually being agreed on the basis of an accepted tender. The provision of criminal legal aid services by way of contracting is particularly prevalent in the United States of America.

4.4 Contracting Models There are several different types of contracting models, such as,

(i) Fixed price contracts which specify a pre-established total amount that a lawyer will receive for work on all cases he or she is assigned during a specified contract period. The number of cases to which the lawyer will be assigned is not pre-established; he or she is expected to accept all assignments, except those in which there is a conflict of interest. The terms of the fixed price contract may require a contractor to provide representation in all types of cases handled in one or more courts or all cases of a specified type in one or more courts.

(ii) Fixed price contracts where the amount paid to the contracting lawyer is pre- established by the number of cases the lawyer will accept during the contract period. In such a system, once the contract lawyer reaches the quota of cases for the contract period, additional cases are not assigned without some form of remuneration — per case or per hour — for additional cases.

(iii) Fee per case contracts, under which a lawyer agrees to take all cases that arise in a jurisdiction or case category for a set fee per case during the contract period.

29 Criminal Legal Aid Review Committee — Final Report

4.5 Contracting — the experience in the United States of America.

4.5.1 Right to counsel and development of various forms of legal aid provision

Prior to the mid-1960’s, the provision of counsel to indigent defendants in State courts became, in the main, the responsibility of individual private attorneys who represented defendants on a pro bono or reduced fee basis. The landmark decisions of the United States Supreme Court, Gideon v Wainwright 372 US 335 (1963) and Argersinger v Hamlin 407 US 25 (1972), which are referred to in paragraph 5.3 of our (Criminal Legal Aid Review Committee) First Report on the feasibility of introducing a Public Defender System for Ireland, paved the way for the appointment of counsel to represent indigent defendants in State courts. Following these decisions individual States became responsible for determining how to establish and fund systems to provide representation to indigent defendants.

In the case of Gideon v. Wainwright, the Supreme Court held that an accused person’s Sixth Amendment right to the assistance of counsel applies to federal and State prosecutions. The guarantee of appointed counsel, which as a result of Gideon was held to attach in felony cases at every critical prosecutorial stage was extended in Argersinger v. Hamlin to all prosecutions which resulted in imprisonment for any term. The Supreme Court stated that no person may be imprisoned for any offence, whether classified as petty, misdemeanour or felony unless he is represented by counsel at his trial. The Court further stated that assistance of counsel is often a requisite to the very existence of a fair trial.

Following the Argersinger case, the clear trend in metropolitan areas was to continue to utilitize public defender systems to provide the majority of representation with assigned counsel handling conflict and overflow cases. In smaller jurisdictions, the system of choice remained and the representation was provided by individual court-appointed counsel. However, with cost containment as the main catalyst, beginning in the late 1970’s, a third system for providing indigent defence services emerged: the private bar contract system.

4.5.2 Research on Contract Systems — Spangenberg Group Report

In its Special Report to the US Department of Justice in April, 2000, entitled ‘Contracting for Indigent Defense Services’ the Spangenberg Group detailed the evolution of contracting as a means of providing Criminal Legal Aid in the USA and examined the key issues which arise regarding same. (The Spangenberg Group is a nationally recognised criminal justice research Group which has worked to improve the delivery of indigent defence services. The Group has provided research and technical assistance for justice organisations in every state in the USA).

4.5.3 Rationale for contracting

On the basis of it’s extensive research, the Spangenberg Group considered that the driving force for the implementation of contracting systems was not court efficiency, quality of services, improving client satisfaction or improving performance but the need to contain or reduce costs. Another reason was an increase in the number of defendants in criminal cases receiving court appointed counsel. In some jurisdictions with a primary defender organisation, conflict cases and case overloads were increasingly handled by contractors rather than assigned counsel.

30 Contracting

4.5.4 Types of Contracts

A number of different types of contracts are in operation in the USA. Contracts are entered into between a funding source (State) and a private lawyer, group of private lawyers or law firm for the purposes of representing indigent defendants entitled to counsel under State law. The following is a brief description of each type.

Fixed Fee All Cases — specifies the total amount of compensation a lawyer will receive for work on all cases he or she is assigned during a specified contract period. The number of cases to which the lawyer is assigned is not capped; he or she is expected to accept all appointments that arise in the jurisdiction except those in which there is a conflict of interest.

Fixed Fee Specific Type of Case — establishes the total amount of compensation a lawyer will receive but it specifies a particular type of case also (e.g. misdemeanours). There is no limit to the number of cases the lawyer is assigned during the contract period.

Flat Fee Specific Number of Cases — pays a flat fee for all work completed on a specific number of cases the lawyer agrees to accept during the contract period.

Flat Fee Per Case — establishes a fee by case type (e.g. $150 per Misdemeanour) and the lawyer agrees to accept all cases of that type that arise in the jurisdiction during the contract period.

Hourly Fee With Caps — pays the lawyer an hourly fee established in the contract but includes a cap on the total amount of compensation a lawyer can receive. Once the ceiling is reached, the lawyer may be required to perform additional work without compensation.

Hourly Fee Without Caps — pays the lawyer an hourly fee established in the contract but also covers the actual expenses of each case.

The ‘‘Fixed Fee All Cases’’ contract, which is awarded on either a competitive or sole source basis, is the most common form of contract arrangement in the US.

It is uncommon, but not unheard of, for a contract programme to be the exclusive provider of representation to all indigent defendants in one jurisdiction. More often contracts are developed to handle cases that the public defender cannot represent due to a conflict of interest or because of case overload.

4.5.5 Concern with contracting Critics of contract programs raise two primary concerns. The first is that contract programs inevitably lead to low cost and low quality representation through a bidding system, which emphasises cost without reference to quality. The second concern is that the private bar will, over time, play a minimal role in indigent defence. Contract programs which replace appointed counsel systems generally require fewer private attorneys.

With the advent of contracting in the US, there is considered to be a danger that the practice of criminal law, with a few exceptions, will be conducted by lawyers on the public payroll — prosecutors, public defenders and large private bar contractors. In some jurisdictions where assigned counsel has given way to contracting and multiple defender offices, it has not been

31 Criminal Legal Aid Review Committee — Final Report uncommon to find only a handful of private lawyers whose practice consists primarily of criminal defence work, either retained or appointed.

Furthermore, initial savings achieved in transferring from an assigned counsel to a contract system can vanish in subsequent years if, as experience has shown, experienced attorneys drop out of the bidding process as the contracts prove to be more time consuming than anticipated. In some jurisdictions contracts do not even cover average hourly overheads leaving the jurisdiction to face the dilemma as to whether to accept the attrition of experienced attorneys and contract with inexperienced attorneys, risking court delays, inefficiencies and potential ineffectiveness claims or whether to increase the contract payments in order to maintain system efficiency and stability. Jurisdictions with particularly strong Bar Associations often find they must keep increasing contract rates in order to continue to attract competent attorneys.

The American Bar Association (ABA), while acknowledging the fact that contract programmes are ‘‘here to stay’’, opposes the awarding of governmental contracts for criminal defence services on the basis of cost alone, or through competitive bidding without reference to quality or representation. It furthers considers that the awarding of governmental contracts for criminal defence services should, in addition to cost, be based on qualitative criteria such as attorney workload maximums, staffing ratios, criminal law practice expertise and training, supervision and compensation guidelines. The National Legal Aid and Defenders Association (NLADA) has expressed similar reservations about the contract model.

Guidelines issued by both the ABA and the NLADA envisage similar, comprehensive safeguards to ensure that quality legal representation is provided. If followed, these guidelines can serve to greatly improve the chances of high quality legal representation being rendered in a type of system that is particularly vulnerable to low quality legal representation because of inadequate safety mechanisms.

4.5.6 Judicial Response to Contracting Legal challenges to contract systems have provided important insights into how they developed. In State v Joe U Smith 681 P.2d 1374 (Arizona 1984), the Arizona Supreme Court struck down Mohave County’s contract defence system which for several years solicited sealed bids from private bar members. In each instance, but one, contracts were awarded to the lowest bidders. The Court’s opinion established a widely cited standard for assessing the constitutionality of a low-bid contract system — that of the National Legal Aid and Defenders Association (NLADA) Guidelines for Negotiating and Awarding Indigent Defence Contracts and the American Bar Association’s (ABA) Standards for Criminal Justice — and concluded that the contracting system was not in conformance with the standards and guidelines for four reasons:

(i) it did not take into account the time the attorney was expected to spend in representing his or her share of indigent defendants;

(ii) it did not provide for support costs for the attorney, such as investigators, paralegals and law clerks;

(iii) it failed to take into account the complexity of each case; and

(iv) it did not take into account the competency of the attorney.

32 Contracting

The Arizona Supreme Court found the Mohave County contract system ‘‘militates against adequate assistance of counsel for indigent defendants’’ and further, ‘‘violates the right of a defendant to due process and right to counsel as guaranteed by the Arizona and United States constitutions.’’ The Court effectively banished the low-bid contract system from Arizona, declaring that ‘‘as to trials commenced after the issuance of the mandate, if the same procedure for selection and compensation of counsel is followed in this case, there will be an inference that the procedure resulted in ineffective assistance of counsel, which inference the State will have the burden of rebutting.’’

As a result of State v. Joe U Smith, contract systems in Arizona now contain specific caseload limitations, attorney qualifications, and provide for contracting attorneys’ support costs. In Maricopa County (Phoenix), experienced attorneys contract to handle various types of public defender conflict cases as well as dependency cases. While quality of representation provided is substantially better than under the old Mohave County system, the cost of the Maricopa County contract system has escalated steadily.

Some funding authorities have switched to contracting systems in response to legal challenges to inadequate compensation to court appointed lawyers. Extensive litigation has been brought in State courts challenging the compensation rates for private court-appointed counsel in criminal cases. In 1992, compensation rates as low as $10 per hour for out of court work and $15 per hour for work in court were overturned by the South Carolina Supreme Court in Bailey v State of South Carolina and, in other States, maximum allowable compensation for individual cases has been found unconstitutional.

Despite these and other court decisions, State legislatures, to contain Government spending, increasingly seek to require contracting and bidding as one component of providing indigent defence services.

4.5.7 Empirical Studies of Contracting Systems Very few empirical studies have examined the quality of representation and cost effectiveness of systems that contract for indigent defence services. The first such study by Norman Lefstein entitled ‘‘Criminal Defense Services for the Poor: Methods and Programs for providing Legal Representation and the Need for Adequate Financing’’, which assessed Clark County, Washington, was released in 1982 and found that costs rose when the county moved from a public defender office to a contract system. In part, the increase resulted from an unforeseen rise in the number of felony cases. The study also noted, however, a decline in the quality of representation, including a decline in the number of cases taken to jury trial, an increase in guilty pleas at first appearance hearings, a decline in the filing of motions to suppress, a decline in requests for expert assistance and an increase in complaints received by the court from defendants.

A second study entitled ‘‘Quality and Cost Comparisons of Private Bar Indigent Defense Systems: Contract v Ordered Assigned Counsel’’, conducted by Pauline Houlden and Steven Balkin in 1985, compared the contract counsel system used in one county with an ordered assigned counsel system used in a second county with similar geographics. In the contract system they examined, one firm had held the contract for 8 years. A second firm that submitted a bid to do the work for less money was awarded the contract. There was no solicitation or bidding process for either contract; both were awarded after the law firms approached the

33 Criminal Legal Aid Review Committee — Final Report county with a proposal. The study found that the contract system cost less than the assigned counsel system for non trial cases because the contract attorneys spent less time on each case and made fewer appearances. The researchers questioned the quality of representation provided under the contracting system and concluded that over time the costs for contracting would exceed the costs for assigned counsel systems.

In 1993, Alissa Poflitz Worden in a study entitled ‘‘Counsel for the Poor: An Evaluation of Contracting for Indigent Criminal Defense’’ compared costs associated with different indigent defence systems in Michigan, but did not compare quality. In describing why her study could not fully address issues of quality, Worden noted: ‘‘Lawyers’ performance is not evaluated easily, in part because standards for effective counsel are vague and in part because thorough and systematic evaluation of performance in individual cases would conflict with professional ethics regarding client confidentiality.’’ Worden found that contracting with competitive bidding saved money, whereas contracting without competitive bidding significantly increased costs. (On average Worden found that competitive bid contracts cost $244 per case compared with $689 per case for no-bid contracts). Worden also compared public defender costs to assigned counsel costs using the combined average of no-bid and competitive-bid contracts and found that contracts were slightly more expensive.

4.5.8 Advantages and Disadvantages of introducing Contracting The theoretical advantages and shortcomings of providing legal aid services by way of contracting which is based on a bidding system, are as follows:

Advantages of Contracting (i) Control over cost The primary attraction of a fixed price contract system is the ability of the service purchaser to more accurately control and contain costs. The goal is to ‘‘cap’’ the annual appropriation so costs can be accurately projected without concern for a supplemental appropriation if funds run out before the end of the fiscal year. In contrast, under a typical judicare system similar to that which operates in Ireland, it is not possible to predict total costs as the number of defendants, the number of cases and the length of cases cannot be predicted with accuracy.

Agreed prices would be set covering all necessary services including the provider’s own costs, barristers’ fees and expert witness fees, so the purchaser of the service would know how much should be budgeted annually.

Contracting might make it possible to predict in advance how much a case would cost based on other similar cases. (ii) Quality It is difficult to assess the quality of service provided under judicare Schemes. With contracting, providers would have to meet quality standards to win contracts and their work would be monitored.

An effective management infrastructure, which included, inter alia, staff training and development, file and case management, client care, complaints procedures and supervision, would need to be in place. There would also need to be a way of monitoring

34 Contracting

the outcomes and other key features of cases to ensure that providers were generally providing a satisfactory service. (iii) Efficiency Contracting would promote value for money through encouraging efficiency. By excluding those who are less efficient or competent, contracting offers efficient and effective providers opportunities to increase the amount of legal aid work they do. It would also provide solicitors with a steady stream of income and, as costs are set out in advance, the potential for unnecessary work being carried out is reduced. (iv) Method of Delivery The method of delivery would not change since the existing private practice structure for the provision of these services could be retained. (v) Targeting Contracts could be for defined services in specified types of case reflecting certain priorities. (vi) Choice Because there would be a number of firms working under contract, allowing the accused choice of legal representative would not be eliminated, as would be the position in a Public Defender System.

Disadvantages of Contracting (i) Reduction in Quality The greatest risk is potentially sacrificing the quality of representation provided to clients. Some fixed price contract systems operate on a competitive, low-bid basis where little regard is given to the qualifications of the lawyers bidding or to the quality of defence provided. Low-bid contracts usually require participating lawyers to accept an unlimited number of cases during a contract period with no mechanism for relief.

Cost savings may be achieved at the direct expense of quality. The problem experienced by some judicare models with the potential for unnecessary work being undertaken is effectively reversed with the danger of too little being carried out and a very poor service being provided as a consequence.

Fixed price contracts can present serious ethical and logistical dilemmas when cost is the only consideration. This can arise for the contractor in circumstances where s/he must determine whether it is possible to fully advocate for each of his or her clients in accordance with ethical requirements when insufficient funds are provided in the contract. There may be no provision for support staff or expert witnesses. (ii) Minimum Service As with any type of forecast or projection, there is uncertainty in predicting the number and type of cases that will be filed in a jurisdiction in the following year. Thus, a contractor who agrees to do ‘‘all criminal cases’’ for one year at a fixed price gambles that there will be no significant aberration in the number of cases from the previous year. This can lead to contracts being obtained by lawyers tendering at prices which are unrealistically low and, consequently, the contract can only be fulfilled by doing as little work as possible.

35 Criminal Legal Aid Review Committee — Final Report

(iii) Restriction of Choice While the provision of legal aid services by way of contracting would not, of necessity, eliminate choice of representation, it would almost certainly curtail the choice which a legally aided person would otherwise enjoy. Allowing a defendant choice of lawyer is helpful in ensuring the independence of defence lawyers and enhances the client’s confidence in his or her representative. Choice can also promote quality because lawyers who rely for future business on being chosen are likely to pursue their clients’ interests robustly.

(iv) Difficulty of meaningful evaluation of quality While the evaluation of quality by reference to management systems may sound fine in theory, measuring/monitoring quality by reference to the ‘‘result of a case’’/‘‘client satisfaction’’ raises difficult questions, not least the issue of lawyer/client confidentiality and whether lawyers should be required to disclose sensitive material during audits. There also may be a lack of independent monitoring of the performance of individuals.

(v) Difficulty of providing service in rural areas There may be a perceived difficulty in that, in rural areas, it might not be possible to entice solicitors to partake in contracting due to the limited volume and specialised nature of the work.

(vi) Administration The implementation of contracting would require a significant level of administration as there would be a tendering process, an evaluation process and a monitoring process.

4.5.9 Can Contracting work effectively?

The experiences of indigent defence systems support the conclusion that contracts can deliver a quality service when appropriate safeguards are developed and implemented. However, contract systems that do not jeopardise the quality of representation provided to indigent clients often do not produce the cost savings sought by the funder.

Good contract systems — which include minimum attorney qualifications; provisions for support costs such as paralegals, investigators or social workers; independent oversight and monitoring; workload caps; limitations on the practice of law outside of the contract and provision for completing the cases if the contract is completed but not renewed, or breached — typically cost more per case than public defender or assigned counsel programs. The costs of administering the contracts and the costs of overseeing and evaluating the contractors add to the cost of the provision of the service.

Cost is usually the primary factor driving jurisdictions to replace assigned counsel systems with contract systems, thus the likelihood that they incorporate all of the above-mentioned elements is slim. Consequently, certain types of contract models, often established in the hope of saving money, pose significant threats to the quality of representation. It is not uncommon for participating attorneys to receive nothing but the minimum in the way of support services: investigators, secretaries, expert witnesses, etc., while being expected to represent an unlimited number of clients.

36 Contracting

4.5.10 Critical Success Factors to good contract systems

On the basis of our (Criminal Legal Aid Review Committee) examination of the delivery of the criminal legal aid service by way of contracting, it would appear that a number of factors are critical to ensuring that a system of contracting provides quality legal representation.

Contracts should be structured and evaluated carefully to ensure that they do not force participating attorneys into ethical dilemmas and to ensure that clients’ constitutional rights are not compromised. In this regard we consider that the ABA and NLADA standards serve as a measure from which States can gauge whether the systems the operate are fundamentally sound.

Factors which would be critical to the success of any contract systems would include the following;

Cost

(i) contracts should ensure quality of representation — it would be essential in order to ensure same that contracts should not be awarded primarily on the basis of cost,

(ii) fixed price contracts which are not based on a pre-determined number of cases should be absolutely avoided,

(iii) contracts may be structured so as to reward providers for being efficient while still providing a good quality service, for example, a lawyer or firm could be contracted for a block of cases at an agreed price per case. This price would cover a wide range of cases in terms of the amount of work involved, but not cover entirely exceptional cases, which would be more expensive (referred to below). During the contract, providers would be able to take on cases up to a maximum volume and be paid in regular instalments, with a final payment when the last case had been completed. During the contract period, these would be calculated on the assumption that providers would handle the maximum number of cases. Later instalments could be adjusted to reflect the actual number of cases taken if it was less than the maximum.

(iv) Contract prices should generally include all the elements that make up the cost of a case, i.e. counsel, expert witnesses. However, the service supplier should be allowed to renegotiate the contract for an entirely exceptional case where the maximum prescribed fee was agreed to be inadequate.

(v) When negotiating contracts to meet the requirements of quality, choice and access, it would be important that the purchaser of the service gets the best value for money available. For that reason there would need to be an element of competition in contracting arrangements. Contracts would not necessarily be awarded to the lowest bidders but to the providers who could deliver quality services at competitive prices. It would be important to develop long-term relationships with providers who could deliver good quality services at competitive prices. There would be a need to encourage providers to focus on the quality of their services rather than short-term profits.

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(vi) contracts should include a designated method of payment and reasonable remuneration.

Independence (i) the professional independence of the contractor should be maintained by creating an independent organisation to administer and award contracts, (ii) contracts should not contain provisions that create conflicts of interest between the contractor and clients such as contracts which do not separately fund expert witnesses or other such services, so that the contractor must choose between paying for these services him/herself or forgoing these services.

Caseloads (i) contracts should specify a maximum allowable caseload for individual lawyers and caseloads should allow each lawyer to give every client the time and effort necessary to provide effective representation.

Quality (i) so as to avoid situations where lawyers or law firms are awarded contracts and delegate responsibility to inexperienced associates, contracts should include identification of lawyers who will perform legal representation under the contract, (ii) the professional training and discipline of lawyers, complaints procedures and liability for negligence all help to ensure that work carried out under contracting is of the right quality. However, when awarding contracts the body awarding them should satisfy itself that the lawyer selected is competent i.e. (a) has an adequate educational background, (b) has demonstrated ability to perform competent trial work as effective representation can only be provided by lawyers experienced in the type of case in which they appear, (c) conducts their professional work in an ethical manner, and (d) is a member in good standing of their representative body. (iii) while acknowledging that it is difficult to measure quality in a criminal legal aid context, the purchaser of the service should, insofar as is possible, develop a range of complementary mechanisms to ensure quality, with the two main elements being: (a) the assurance that there is an efficient and effective management infrastructure and system in place — effective management standards include requirements for training and recruitment, file and case management, client care, complaints procedures and supervision. Effective supervision and review within firms would be especially important in assuring the quality of the work done, and (b) the monitoring of the infrastructure and system and the work itself — in order that a system of contracting operates successfully there would need

38 Contracting

to be a way of monitoring the outcomes and other key features of cases to test whether providers were generally achieving satisfactory results and of identifying providers who may be ‘cutting corners’ to increase profits. Key indicators would need to be developed to conduct such monitoring. (iv) it may be prudent on the part of the purchaser of legal aid services to award short- term contracts initially and allow only those providers who fully meet the required standards to qualify for long-term contracts. Providers who can satisfy some minimum requirements on a preliminary audit could win short-term contracts while they develop their systems, thus ensuring that new providers would not be prevented from entering a contracting scheme because they could not meet the required standards immediately. (v) providers should have the prospect of a long-term contract as there would be a strong disincentive against increasing short-term profits by undercutting quality. (vi) contractors should not let their non-contract work interfere with adequate representation of clients under the contract.

Choice (i) a sufficient number of contracts would need to be in place so as to give clients some freedom of choice. Large firms, as well as small firms and sole practitioners, could all compete for contracts provided they meet the criteria in terms of quality and cost.

Sanctions

(i) a range of sanctions would need to be in place which could be applied to firms whose performance was assessed and determined to be unsatisfactory. Depending on the nature and severity of the problem, the body awarding the contracts could:

— allow the provider time to put things right,

— temporarily stop the provider from taking on new contracts or allow it to get only short-term contracts,

— reduce the amount of work the provider is contracted to do, or

— suspend or withdraw an existing contract.

(ii) contracts should include the grounds for the termination of a contract.

Contracts which do not address the issues raised above cannot be expected to deliver effective representation.

4.6 Contracting — the experience in the United Kingdom. 4.6.1 Northern Ireland In a Decisions Paper published in September 2000 by the Northern Ireland Court Service entitled ‘‘The Way Ahead — Legal Reform in Northern Ireland’’, the Northern Ireland Court Service examined the possibility of introducing contracting.

39 Criminal Legal Aid Review Committee — Final Report

The Decisions Paper proposes that the responsibility for the management of the delivery of publicly funded legal aid and advice services should be reformed and that a Legal Services Commission be established as a new, independent body which will be responsible for administering all aspects of publicly funded legal services in Northern Ireland.

The Decisions Paper followed the publication of a Consultation Paper in June, 1999 which sought and received a number of submissions concerning, inter alia, contracting. There was no support for the introduction of contracting for criminal legal aid services. The main concerns raised were that contracting would diminish the solicitor network thereby reducing access to justice and impose an unacceptable restriction on the choice of solicitor for defendants which, it was argued, was contrary to international obligations. Other objections related to the rural nature of Northern Ireland and solicitors’ dependence on a wide range of work within the community, the fragmented and polarised nature of society within Northern Ireland and the limited volume of work throughout the jurisdiction which would not make specialisation feasible.

The Decisions Paper proposes that the Commission be given a reserve power to purchase legal services by contract, whereby the categories of work which could be bought in this way would be determined by the Lord Chancellor. Though the Paper proposed to provide the Legal Services Commission with powers to contract for specialist services, it was considered that the large number of small solicitors’ practices and the Bar Library system would make whole scale contracting at this stage unsuitable.

4.6.2 Scotland The Scottish Legal Aid Board have advised that it has no plans for contracting to be introduced as a method of delivering criminal legal aid in Scotland.

4.6.3 England and Wales Major reforms of the provision of Criminal Legal Aid services are currently taking place in England and Wales. In essence, the intention is to replace the Legal Aid Board with a new Criminal Defence Service (CDS) which will cover all the main services currently provided by criminal legal aid, including representation in court when this is in the interests of justice and advice and assistance for suspects being questioned by the police. Change will focus on securing better quality and value for money by developing more efficient ways of procuring services — contracting and directly employed lawyers — and by streamlining the arrangements for granting representation.

Of particular interest to our Committee, the authorities in England and Wales have decided that, in future, most publicly-funded criminal defence services will be provided by lawyers in private practice, under contracts which would be designed to include quality standards. The rationale for implementing the new contracting system and the nature of the system will be discussed in detail below. It should be noted, however, that the ‘contract’ system which is being implemented in England and Wales differs substantially from contract systems in operation in the US. The key difference is that the contracts are not based on competitive bidding. Solicitors who wish to provide criminal legal aid services will effectively enter into agreements with the newly established Criminal Defence Service to provide legal services on the basis of a prescribed fee structure and subject to a quality assurance assessment being carried out on

40 Contracting their work. The possibility of introducing contracts and quality standards for counsel will be considered by the Criminal Defence Service.

In order to analyse the developments taking place in England/Wales and the relevance of same in the context of our own review, it is necessary to describe the Criminal Legal Schemes which have been in operation in England/Wales over the last decade, the rationale for change and the new structures which will apply.

4.6.3.1 Criminal Legal Aid Schemes in England and Wales Responsibility for the delivery of the criminal legal aid service in England and Wales rests with the Lord Chancellor’s Department.

Until the implementation of the reforms now underway, there were basically two Criminal Legal Aid Schemes in operation. One scheme is operated by the recently established Legal Services Commission (which replaced the Legal Aid Board) and covers pre-court work (i.e. Green form advice, police station advice, the Duty Solicitor Scheme) and representation in the Magistrates Court. A second scheme covering representation in the Crown and higher courts is the responsibility of the Court Service.

4.6.3.2 The Legal Aid Board The Legal Aid Board was set up under the Legal Aid Act, 1988. It took over statutory responsibility for the civil legal aid scheme from the Law Society in April 1989 along with those aspects of the criminal legal aid scheme for which the Law Society had been responsible.

The Board’s core business covered the management of all the advice and assistance services, civil legal aid schemes and some elements of criminal legal aid. The criminal legal aid work consisted of: • considering applications to review refusals of legal aid, • assessing bills for magistrates’ court work, • paying bills for magistrates’ court work, • all aspects of the duty solicitor schemes, and • granting prior authority for items of expenditure in criminal cases.

The Schemes operated by the Board were as follows: • Assistance By Way of Representation (ABWOR), • Criminal green form advice and assistance, • The Court Duty Solicitor Scheme, • Police Station Duty Solicitor Scheme, and • Magistrates’ Courts cases.

Expenditure on Legal Aid Board Schemes The total net expenditure of the Legal Aid Board in 1999-2000 was £1,242.5m, of which, the cost of criminal legal aid was £411.6m (£233m was spent on Magistrates Court cases). The

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Board spent a total of £62.4m on administration, which if extrapolated, would give rise to an approximate cost of £20.6m for the administration of criminal legal aid. These figures do not include criminal cases in the Crown Court and higher courts (referred to below).

The Legal Aid Board has been replaced by the recently established Legal Services Commission (LSC) (discussed hereunder).

4.6.3.3 Court Service Legal Aid Scheme. The Lord Chancellor’s Department (LCD) is responsible for policy development and for setting the level of rates payable for criminal legal aid work. Implementation of policy and day to day administration of the scheme is the responsibility of the Court Service, an executive agency of the LCD.

Grant of Legal Aid The courts grant criminal legal aid; a small number are granted by the LSC on appeal against magistrates’ refusal to grant. In most instances it is the magistrates’ court that decides, including whether legal aid should be extended for representation in the Crown Court. In the magistrates’ court it is usually the Justice’s Clerk, although it can be the court itself, who grants legal aid and determines the level of representation — and usually the order is for the solicitor only. All defendants in the Crown Court qualifying for legal aid are entitled to representation by solicitor and advocate. It is for a judge of the Crown Court to decide whether more than one advocate should be appointed, and at what level (e.g. QC and junior). Under the scheme any qualified solicitor can undertake criminal legal aid work.

Criteria for granting legal aid Under the scheme legal aid is granted where it is in the interest of justice to do so and where the defendant needs help in meeting the cost of his/her defence. The ‘‘interest of justice’’ criteria are generally met where the defendant is charged with an offence serious enough to merit imprisonment if convicted. Legal aid can also be granted where a defendant is at serious risk of losing his job or livelihood, or exceptionally, when at risk of losing his reputation.

Contributions towards the cost of legal aid All applicants are means tested and, subject to their financial circumstances, may be ordered to pay a contribution. The level of contribution, payable throughout the life of a case, cannot exceed the total cost of the case. In practice, very little is paid by way of contributions in criminal cases (£8m out of a total of £611m spent in the magistrates’ and higher criminal courts in 1999/2000, roughly equivalent to the cost of administering the means test). Means testing also results in delay while applications are being considered.

Fee structures applicable A mixture of prescribed hourly rates, standard fees and non-standard fees apply — all on a case by case basis. Solicitors are paid either prescribed hourly rates or a standard fee for appeals against conviction or sentence imposed in the magistrates’ court. For most cases of up to 10 days trial advocates are paid a graduated fee (i.e. a standard fee which is enhanced according to the number of defendants, number of trial days etc). [It is planned that the graduated fee scheme will be extended to cover trials of up to 25 days]. Claims in cases not covered by standard fee regimes are assessed by Court Service determination officers. These are known

42 Contracting as ex post facto determinations. The determination officer will allow what s/he considers is fair and reasonable.

Expenditure on Court Service Legal Aid Schemes In 1999-2000, the cost of the higher criminal court Schemes operated by the Court Service was £370.6m.

Per capita cost of Criminal Legal Aid Services 1999-2000 In 1999-2000, the cost of the Legal Aid Board Criminal Legal Aid Schemes was £411.6m and the higher criminal court Schemes operated by the Court Service was £370.6m — a total £782.2m. The population of England and Wales was 52.428m, giving a per capita cost for all publicly funded criminal legal aid services of £14.90.

4.6.3.4 Reform Proposals contained in White Paper ‘Modernising Justice’, December, 1998 Requirements of Criminal Justice System In December, 1998, the British Government published its plans for reforming legal services and the courts in the White Paper, Modernising Justice. The White Paper stated that the criminal justice system must be fair and efficient and command people’s confidence. It should be sensitive to the needs of victims and witnesses, and to the public interest in the speedy and effective administration of justice. For a criminal justice system to be fair, as well as efficient, people accused of crimes must receive appropriate legal representation and a robust and competent defence, when the interests of justice require it. The Paper proposed that this would be achieved by the establishment of the Criminal Defence Service (CDS).

Perceived weaknesses with existing Criminal Legal Aid provision The Paper stated that the Government did not believe that the existing legal aid scheme met the above objectives as the cost of criminal legal aid had risen substantially over the previous years. In 1992-93, the taxpayer spent a total of £507 million on all forms of criminal legal aid; by 1997-98, the figure was £733 million. This is an increase of 44%, compared to general inflation of 13%. Over the same period, the number of criminal legal aid orders (for representation at court) rose by only 10%, from 563,788 in 1992-93 to 618,621 in 1997-98. The position is worse in relation to the Crown and higher criminal courts which is the single most expensive element of the criminal legal aid system. Here, spending had risen from £221 million in 1992-93 to £349 million in 1997-98 (an increase of 58%), while the number of cases remained constant at 124,000. In 1999-2000, the cost of the Legal Aid Board Schemes rose to £411.6m and the higher criminal court Schemes rose to £370.6m.

In addition, the Government considered that the framework for determining lawyers’ rates of pay was inflexible and outdated and the current criminal legal aid scheme was highly fragmented. Assistance was being given under five different parts of the scheme in a single case which could lead to duplication and delay.

Government objectives for Criminal Legal Aid Service The Paper set out the Government’s determination that the system for funding criminal defence services, for people who cannot afford to pay themselves, should meet the following fundamental objectives:

43 Criminal Legal Aid Review Committee — Final Report

• help ensure that suspects and defendants receive a fair hearing at each stage in the criminal justice process; and in particular that they can state their case on an equal footing with the prosecution.

• protect the interests of the suspect or defendant, for example by making the prosecution prove its case; or advising the defendant to enter an early guilty plea, if that is appropriate. To do this without fear or favour, the defence must be free from influence by the prosecution or the courts.

• maintain the suspect’s or defendant’s confidence in the system, and ensure his or her effective participation in the process.

The Government also indicated that the above should be achieved at an affordable cost to the taxpayer and, in a way that secures services of the right quality, for the best possible value for money.

Development of a New Structure for delivering Criminal Legal Aid A new Criminal Defence Service (CDS) has been established which will cover all the main services currently provided by criminal legal aid, including representation in court when this is in the interests of justice, and advice and assistance for suspects being questioned by the police. The purpose of the reform structure is to secure better quality and value for money, by developing more efficient ways of procuring services — contracting and directly employed lawyers — and by streamlining the arrangements for granting representation.

Provision of services by way of contracting The Paper set out the policy that in future, most publicly-funded criminal defence services will be provided by lawyers in private practice, under contracts which would be designed to include the quality standards and financial incentives that best suit the type of case concerned.

Where possible, contract prices should be fixed in advance. It was considered that fixed prices create an incentive to keep delay to a minimum. They reward efficient practitioners and allow quick and certain payment. In addition, and insofar as is possible, contracts with solicitors’ firms should cover the full range of criminal defence services, from advice at the police station to representation in the magistrates’ court and, if necessary, the Crown Court so as to eliminate the fragmentation that bedevils the current scheme.

Very expensive cases — those where the trial is expected to last 25 days or more — will fall outside the scope of contracts designed to cover ordinary cases. Instead, a separate contract will be negotiated for each individual case so as to keep a tight rein on cost. A defendant’s choice of solicitor will be restricted to firms on a specialist panel.

Perceived benefits of provision of services under contract Contracting is the key to meeting the Government’s objectives:

(i) Cost

• by purchasing specified services in specified categories of case, contracts give effect to priorities on the ground.

44 Contracting

• contracts will enable the LSC to control its budgets, because they will usually determine expenditure in advance. • contracting will help to ensure the quality of service consumers receive; only those lawyers who meet prescribed quality standards will be able to obtain contracts and their performance will be monitored. • contracting will promote better value for money by providing the basis for competition and by fixing prices in a way that encourages greater efficiency. • by fixing the price and the timing of payments, contracts can provide greater certainty about cost and cash flow. This is good for providers because it lets them plan and manage their businesses more efficiently.

(ii) Developing quality standards • all contracts for criminal defence services will include quality requirements which will require solicitors to be accredited under a Scheme developed by the Law Society or the CDS. The work that providers do will be monitored by reference to quality standards.

Contracting and client choice Allowing choice was seen as being helpful in ensuring the independence of defence lawyers and enhancing the client’s confidence in his or her representative. It can also promote quality because lawyers who rely for future business on being chosen are likely to pursue their clients’ interests robustly.

It was, however, acknowledged that contracting inevitably involves some restriction on the unfettered choice of lawyer that clients have under the current legal aid system but this was considered necessary and desirable in order to secure quality and value for money. In most cases, however, suspects and defendants will still be able to choose their representative from among those with a current contract with the CDS.

Continuity of representation, under which the same lawyer would represent a client at all stages of the process, was seen as important for the client and as a means of preventing the delays that can occur when a defendant changes lawyer during a case.

In order to maintain an element of choice the Government intends to ensure that most firms which undertake a significant amount of criminal work and which meet quality standards should remain part of the CDS scheme, but that they should have to compete for work under the scheme.

In very expensive cases, where special skills, experience and technology are often needed, and a great deal of public money is at stake, the Government decided that it was necessary that a defendant’s choice of lawyer is restricted to those legal representatives who have demonstrated their ability to handle cases of this type.

4.6.3.5 Implementation of reforms in the delivery of legal aid Establishment of new statutory bodies As referred to in the White Paper, the creation of the Criminal Defence Service was part of the Government’s fundamental reform of the legal system. The Legal Services Commission

45 Criminal Legal Aid Review Committee — Final Report was created by the Access to Justice Act 1999, as the successor body to the Legal Aid Board. The Criminal Defence Service was also created by the Act, under the auspices of the Legal Services Commission and was given responsibility for the management of the various criminal legal aid schemes in operation.

Objective of Criminal Defence Service The purpose of the Criminal Defence Service is to ensure access for individuals involved in criminal investigations or criminal proceedings to such advice, assistance and representation as the interests of justice require.

Within the legal framework under which it is established, the Criminal Defence Service will: (a) ensure that the Government meets its statutory and international obligations which provide that, (i) people arrested and held in custody have the right to consult a solicitor privately at any time, and (ii) defendants have a right to defend themselves in person, or through legal assistance of their choosing, or, if they have insufficient means to pay for legal assistance, to be given it free when the interests of justice so require, (b) help ensure that suspects and defendants receive a fair hearing at each stage in the criminal justice process and, in particular, that they can state their case on an equal footing with the prosecution, (c) protect the interests of the suspect or defendant, and (d) maintain the suspects or defendants confidence in the system and facilitate their effective participation in the process. As a key element of the CDS, the Commission will contract with private practice lawyers for the provision of services.

Towards implementation of new structures In August, 1999, the Commission published the consultation paper Introducing Contracts for Criminal Defence Services with Lawyers in Private Practice, which set out initial proposals for developing contracts with lawyers for the delivery of publicly funded criminal defence services. The paper contained proposals in respect of: • contracts for advice and assistance (including the duty solicitor schemes) and magistrates’ court representation; • individual case contracts for very high cost cases; and • contracts for Crown Court representation.

The paper also detailed plans to introduce a general CDS contract covering: • advice and assistance; • assistance by way of representation (ABWOR); • police station advice; and • magistrates’ court representation.

46 Contracting

It was considered that the work undertaken by defence solicitors in respect of the above services is so closely linked and intermixed that it is desirable to encompass it in a single contract rather than perpetuating the structural splits in the work in the current criminal legal aid system, caused by the different schemes under which this work is provided.

In developing this contract, and the management framework within which it will operate, the CDS has focused on three particular areas: • contract work specification and pricing arrangements; • contract quality standards; and • the operation of the duty solicitor schemes within the contracted environment.

The General CDS Contract being implemented will contain additional contract quality standards which will add to, or amend, the current Legal Aid Franchise Quality Assurance Standards (LAFQAS) to address the particular characteristics of criminal defence work which the Commission have piloted and researched in the criminal contract pilot. The main areas that will be addressed in this way will be: • case management; • personal competence and people management; and • service standards.

The Commission also published a second consultation paper in August 1999, Ensuring Quality and Controlling Cost in Very High Cost Criminal Cases, which addressed in greater detail proposals for introducing contracts for the most expensive Crown Court cases.

The consultation paper set out proposals for managing these cases under individual case contracts (ICCS) between the Legal Aid Board and defence teams, comprising solicitors, barristers and experts.

The Commission have developed arrangements for managing ICC’s for the Serious Fraud Panel and a fee structure for use with solicitors and counsel in the contracts.

The Commission has also established a central high cost criminal cases contracting unit to develop and concentrate experience and expertise in managing very expensive criminal cases. This unit will manage the ICC’s with defence teams and administer the Serious Fraud Panel.

It is planned that the Commission will enter into contracts for Crown Court work generally by 2003 and assume, from the Court Service, responsibility for managing payments for this work. The Legal Aid Board began to work more closely with the Lord Chancellor’s Department in their management and development of the current arrangements and it is anticipated that the Commission will continue this in order to develop greater understanding of this area of work. The Legal Aid Board also initiated a major research project on Crown Court cases which will inform the Commission’s approach to contracting in due course.

Current Position The Criminal Defence Service, which was created by the Access to Justice Act, 1999, was implemented on 2 April, 2001. The Criminal Defence Service contract was introduced on 2

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April for pre-court work and representation in the Magistrates’ Court. From that date, only solicitors with such contracts are able to undertake new criminal cases funded by the Legal Services Commission.

Prior to the introduction of contracting, 3,300 solicitors’ offices provided criminal legal aid services throughout England and Wales. 3,000 solicitors’ offices have signed the Criminal Defence Service contract maintaining the comprehensive network of representation, advice and assistance services. The contracts also introduced additional quality standards and provide an assurance of value for money for the taxpayer.

Contracting — England and Wales vis-a-vis the USA As will be observed from the foregoing, the ‘contract’ system which has recently been implemented in England and Wales differs substantially from contract systems in operation in the US because it is not based on competitive bidding. In the above regard, we consider that the ‘contract’ system being implemented in England/Wales does not come within the scope of what we have defined as ‘contracting’ (para 4.3).

In England and Wales, therefore, the two most important aspects of the reforms being implemented from the public policy perspective centre on the move to rationalise the delivery of publicly funded pre court services up to and including Magistrates Court work and the implementation of prescribed fee structures for the Crown and higher court work, including the implementation of special arrangements for what are categorised as ‘very high cost cases’. This will enable the Criminal Defence Service to move away from paying for legal aid work on the basis of ex-post facto determinations, which were regarded as being expensive.

4.7 Contracting of Legal Services in Ireland by the State 4.7.1 Office of the Chief Prosecution Solicitor The Report of the Public Prosecution Study Group (June 1999) (the Nally Report) recommended that ‘‘... the criminal division of the [Chief State Solicitor’s Office] should be transferred to the Director of Public Prosecution’s Office (DPP) to form a unit headed by a solicitor to the DPP with statutory clarification that its professional staff would be professional staff of the DPP within the meaning of the [Prosecution of Offences Act] 1974.’’ (paragraph 5.10.6). The Nally Report also recommended that ‘‘... responsibility for the State Solicitors should be transferred from the Attorney General to the DPP, with legislative provision to enable the DPP to delegate to them’’ (paragraph 5.10.4.).

Following the above recommendations, a new Office of Solicitor to the Director was established on 3 December, 2001. The new office, which is known as the Office of the Chief Prosecution Solicitor has now assumed the role of the Chief State Solicitor in representing the Director in Court.

The Chief Prosecution Solicitor acts as solicitor to the Director in criminal cases requiring a solicitor service. In Dublin City and County this work will be carried out directly from the Office by professional civil servants in the full time employment of the State. The Chief Prosecution Solicitor also acts as solicitor to the Director in other counties in Ireland through the network of ‘‘County’’ State Solicitors who are employed on contract by the Attorney General. The conditions of appointment of a ‘‘County’’ State Solicitor depend on the terms of

48 Contracting each individual’s contract. In recent times these contracts tend to be for a period of ten years duration. Prior to these term contracts coming into operation State Solicitors were employed on contract until retirement age of 65 years — some contracts provided for extensions of this period on an annual basis, subject to conditions, for up to a maximum of an additional five years.

The ‘‘County’’ State Solicitors provide a solicitor service in criminal matters to the Director of Public Prosecutions. There are 32 ‘‘County’’ State Solicitors outside Dublin, with at least one solicitor for each county. Cork has four and Galway, Kildare, Limerick and Tipperary each have two. As previously indicated, County State Solicitors are appointed on contract to the Attorney General from a list drawn up following a competitive interview of suitable applicants. In addition to the criminal work which they carry out on behalf of the Director of Public Prosecutions, County State Solicitors handle civil litigation and other legal work on behalf of the Attorney General.

4.8 Contracting — a viable option for providing criminal legal aid in Ireland? The central issue which faces the Committee in advising Government in this matter is whether the provision of criminal representation by way of contracting would result in a similar quality of representation being provided at a lower cost or an improved quality of representation being provided at a similar cost taking account, of course, of the cost of the administration of a system of contracting.

In identifying the key issues which require analysis in the above context, we find ourselves revisiting some of the core issues which we addressed in the our examination of the ‘Public Defender’ matter.

4.8.1 Cost Cost control features of Irish Criminal Legal Aid Scheme Before analysing the merits of implementing contracting in Ireland, particularly from a cost- effectiveness viewpoint, we consider it useful, at this juncture, to briefly outline the cost control features which are inherent in our Scheme.

Our Criminal Legal Aid Scheme is operated by solicitors and barristers in private practice who apply to go on a panel maintained by a County Registrar(s) (for solicitors) and the Minister for Justice, Equality and Law Reform (for barristers). The Courts grant a certificate for free legal aid on foot of an application made to it for same. (Incidentally, whereas the Court grants legal aid for Crown and higher Court cases in England/Wales and the Criminal Defence Service grants it for Magistrates Court cases, the grant of legal aid is solely a function of the Courts in this jurisdiction). In Ireland, when the court grants legal aid to a defendant, it will then assign a solicitor of the defendant’s own choosing, who will, in respect of an indictable case, instruct a member of the Bar whose name is on the barrister’s panel.

With regard to the fees payable under the Scheme, the position is that solicitors are paid on a fixed scale of fees (prescribed by Statutory Instrument) in respect of cases heard in the District Court. They are paid an initial brief fee for the first appearance in court and a refresher fee for each subsequent day in court.

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As mentioned above, for indictable cases in the Circuit Court and higher Courts, counsel is assigned in addition to a solicitor. Legal aid certificates for cases which are heard in the Central and Special Criminal Courts almost invariably provide for the engagement of two counsel — one senior and one junior. The fees paid to counsel in the Circuit and higher Courts in respect of indictable offences are determined by the fees which the Director of Public Prosecutions (DPP) pays to prosecution counsel, through parity arrangements introduced by Regulations made under the Criminal Justice (Legal Aid) Act, 1962, in 1976 and 1978. The fees paid to solicitors in respect of their services in the higher Courts are related to the fees payable to the defence counsel, which are in turn based on the fees paid to the prosecution counsel as determined by the DPP.

Therefore, insofar as the cost of our Scheme is concerned, there is a strong inbuilt control. There are, of course, some variables which have a bearing on cost, from year to year, viz.:

— the number of cases prosecuted,

— the number of free legal aid certificates granted by the courts,

— the number of counsel assigned by the courts,

— the length of a case (this variable would be more relevant for Circuit and higher court matters).

However, while the variables mentioned above have an impact on the cost, there would not be a significant variation in those variables from year to year, such as would cause a significant deviation from the predicted cost of the Scheme. The key variable in this regard is the unit cost of the fees payable under the Scheme and, as will be observed, there is a larger degree of control over same. It can be said, therefore, that we have what the US authorities would describe as a ‘predictable cost projection system’ for Criminal Legal Aid in this jurisdiction.

Contracting — classical model In analysing the merit of introducing contracting in this jurisdiction, we will firstly assess the merit of introducing a contracting system, as defined in paragraph 4.3, which is the contracting system which operates in USA. We will also assess the merit of introducing the entirely different form of contract system which is being implemented in England/Wales.

It appears to us, on the basis of the information we have available in respect of the provision of criminal legal aid services by way of contracting in the United States, that the overriding reason for the development of contract systems is the desire to control costs. It further appears that while it may be possible to operate contract systems which provide an acceptable level of service, we have found no evidence to indicate that this can be achieved at a lesser cost than that which prevailed for assigned counsel and/or public defender systems. The evidence for the US indicates that cost savings are achieved in certain situations where competitive bidding operates but this has a direct adverse effect on the quality of representation provided. We consider, therefore, that the US experience in providing criminal legal aid services by way of contract does not make a sound case for the implementation of such a system in Ireland.

50 Contracting

Contract system being implemented in England/Wales (i) Cost In looking at the rationale for the implementation of the form of contracting being introduced in England and Wales, it ought be noted that the starting point for considering reform in England/Wales compared to that of Ireland is fundamentally different, i.e. the per capita cost of criminal legal aid in England/Wales was stg. £14.90 in 1999/2000 whereas the comparable cost in Ireland for 2000 was IR £5.50.

The per capita costs referred to above should be put in context, however, and it must be acknowledged that a broader range of services are provided in England/Wales to those in Ireland, particularly on the pre-court side. [Our pre-court provision has been expanded during the life of this Committee on foot of the Government’s acceptance of the recommendation contained in our Interim Report that a Garda Station Legal Advice Scheme be implemented. We also considered the merit of implementing a Duty Solicitor Scheme and recommended against the implementation of same. England/Wales also provides a Scheme for advice and assistance which we do not have an equivalent of in Ireland].

Given that our per capita cost of IR £5.50 (£19.776m cost of criminal legal aid in 2000/3.6m population) is in respect of legal aid for representation in court, it is interesting to compare that cost with the net per capita cost of providing legal aid in court in England/Wales, i.e. the cost of the Crown and higher Court Scheme (administered by the Courts Service) and the cost of the Magistrates Scheme administered by the Legal Services Commission — Stg. £370.6m + Stg. £233m = Stg. £603.6m / 52.428m population, gives a net per capita cost of Stg. £11.50. Therefore, for representation in court, the cost of criminal legal aid in England/Wales is over double that of Ireland, this despite the fact that the cost of our Scheme has increased over three fold from 1993 to 2000 (IR£5.9m to IR£19.7m).

[The above comparison of per capita cost is on a ‘like for like’ basis. As referred to above, a Garda Station Legal Advice Scheme was introduced in Ireland on 14 February, 2001. Given that the Scheme has only commenced, we do not have a full year costing and it is not therefore possible to include the cost of this scheme and its counterpart in England/Wales in the above comparison].

We readily acknowledge that the above comparison is made in purely economic terms. It cannot be said on the basis of the above, for instance, that our Scheme provides better value for money than that of England/Wales as we are not aware of the underlying reasons (such as whether there is a higher number of prosecutions per capita or a higher rate of grant of free legal aid) for the cost difference between our respective schemes. We can simply make the observation, on the basis of this comparison, that our Scheme is less expensive. We also consider, and in this respect we are conscious of the need to be cautious, that there has been little or no evidence to suggest that the quality of representation of our scheme is anything other than satisfactory.

One of the supposed advantages of providing criminal legal aid services by way of contract is the ability of the service purchaser to more accurately control and contain costs. This ‘attraction’ appears to be more relevant in the case of our neighbouring jurisdictions of England/Wales and indeed Scotland where fees are determined on the basis of work done, often ex-post facto. However, the Committee considers that the achievement of the objective

51 Criminal Legal Aid Review Committee — Final Report of controlling costs is achieved more through the introduction of a prescribed fee structure that the implementation of ‘contracting’ itself.

Achieving more control over costs is to be derived from establishing standardised rates and, as a consequence, eliminating ex-post facto determinations — this approach will be taken for Crown and higher court cases over the next two to three years. In many ways, therefore, the contracting system being implemented in England/Wales can be seen as being analogous to our system in that our lawyers enrol on a panel to provide criminal legal aid services in the context of a predetermined fee structure and, henceforth, practitioners in England/Wales will do likewise. Critically, there is no competitive bidding aspect to the contracting system which has been implemented as will be evidenced by the fact that prior to the introduction of contracting, 3,300 solicitors’ offices provided criminal legal aid services and no less than 3,000 solicitors’ offices have signed the Criminal Defence Service contract implemented with effect from April 2001. This will allow for the maintenance of the comprehensive network of representation, advice and assistance services. The contract system implemented also introduced additional quality standards as a means of providing an assurance to the recipient of the legal aid service and of value for money for the taxpayer. We will address the ‘quality’ issue below.

The other significant cost saving measure — being introduced as part of the reform package, which, it is expected will also bring about more efficiency — is the consolidation of the legal aid provisions on the pre court side, whereby solicitors will sign up to provide services at a predetermined rate.

In regard to whether the contracting system being introduced in England/Wales makes the case for the introduction of such a system here on cost grounds, the Committee considers that the underlying structure of our Scheme makes it a predictable cost projection system. Our fee structures do not create an incentive to do unnecessary work. District Court fees are set by Ministerial Regulation and Circuit and higher Court fees determined on the basis of parity with those paid by the Director of Public Prosecutions. For the reason alluded to above, the England/Wales system of contracting is in some respects analogous to our panel system and the benefits it aspires to achieving in terms of cost containment are already in place in our system. Therefore, though we appreciate the rationale for the introduction of contracting in England/Wales, the benefits for that jurisdiction from the form of contracting being introduced would not be transferable to Ireland and we see no merit, from a cost perspective, of recommending the introduction of such a system here.

However, the Committee considers the fundamental reforms which are taking place in England/Wales to be interesting, particularly in respect of the delivery of criminal legal aid services by way of contract and the quality assurance procedures which are an integral part of the contracting scheme being implemented. The merits, if any, of such a system will, we believe, become much clearer in three to five years time when the system has been well established. In this regard, the Committee considers that the Department of Justice, Equality and Law Reform should assess the operation of the contracting system in England/Wales, having regard to the cost and quality aspects of our Scheme, in due course.

(ii) Quality of representation The Committee has acknowledged in our First Report that the Criminal Legal Aid Scheme has been the subject of little or no criticism in either the submissions made to it or from any

52 Contracting other quarter and that, it has, since its inception, served accused persons who would otherwise have been unable to retain their own legal representation well. We would, ideally, like to be in a position to rely on certain agreed mechanisms to evaluate quality so that we could be satisfied on objective grounds that the quality of representation provided under our system is of an acceptable standard but there is no independent and transparent means of so doing. Equally, however, there is no evidence to suggest that the quality of representation provided under our Scheme is anything other than satisfactory and we consider that any change in the structure of the delivery of our legal aid services should have due regard to safeguarding standards.

In addressing the question of quality, we recognise that the evaluation of quality is a difficult task. As we have alluded to previously, the greatest risk in introducing contracting on a competitive bidding basis is the danger of sacrificing the quality of representation provided to clients. Some fixed price contract systems operate on a competitive, low-bid basis where little regard is given to the qualifications of the lawyers bidding or to the quality of defence provided. Low-bid contracts usually require participating lawyers to accept an unlimited number of cases during a contract period with no mechanism for relief. In such situations, cost savings may be achieved at the direct expense of quality. The problem experienced by some ‘assigned counsel’ models with the potential for unnecessary work being undertaken is effectively reversed, with the danger of too little being carried out and a very poor service being provided as a consequence.

The Committee considers that fixed price contracts can present serious ethical and logistical dilemmas when cost is the only, or primary, consideration. This can arise for the contractor in circumstances where s/he must determine whether it is possible to fully advocate for each of his or her clients in accordance with ethical requirements when insufficient funds are provided in the contract. There may be no provision for support staff or expert witnesses. In addition, the Committee considers that there is an equality of arms inherent in our Criminal Legal Aid Scheme in that parity of fees applies between the prosecution and the defence. Many barristers appear for both the prosecution and the defence which means that the same expertise is available to the defendant and the State and the system can be seen to have integrity and independence. In Ireland, a solicitor is not placed in a position where s/he has to decide whether the engagement of an expert witness can be afforded — the practice is that if it is considered necessary for the proper defence of the client, the solicitor has autonomy to engage an expert as required and that expert will be paid on a parity basis with similar experts retained by the Office of the Chief Prosecution Solicitor.

On the basis of the information available to the Committee on the quality of representation provided under contract in the USA, it seems clear that good contract systems, which would meet the criteria we have identified as being critical success factors in section 4.5.10, typically cost more than assigned counsel systems. Therefore, where a contract system may be regarded as being acceptable on quality grounds, there is no cost incentive to implement contracting. The opposite is also true in that what is acceptable on cost grounds is unlikely to provide an acceptable level of quality. The Committee is not convinced that the cost/quality matrix of the contracting systems in operation in the USA provide a basis for recommending the introduction of competitive bidding contracting in this jurisdiction.

The Committee notes, with much interest, the steps that are being taken in England/Wales to ensure that a major element of the fundamental reforms which are taking place in the delivery

53 Criminal Legal Aid Review Committee — Final Report of criminal legal aid services is the development of quality standards and the evaluation of same. By way of general observation, the Committee would regard any reasonable steps to assure the quality of provision of criminal legal aid services as being a positive step.

In a document entitled ‘‘Striking the Balance’’, which was published by the Lord Chancellor’s Office in 1996, the following key indicators are listed as being suitable for monitoring the effectiveness of representation: — the result of the case, — length of case, — client satisfaction, — appropriate use of barristers and expert witnesses, and — comparison of the cost of a case vis-a`-vis predicted cost.

The Committee has considered the above criteria as regards their suitability for assessing the issue of quality. The criteria of ‘the result of a case’ and ‘client satisfaction’ would appear to be subjective criteria and it is difficult to see what they really tell us about the quality of service provided. The client’s primary interest is whether or not the case had a successful outcome for them. The fact that, for example, the outcome for the client was not successful may not lead to much satisfaction on the client’s part but it does not mean that their representation was not made in the most robust, assiduous and professional manner possible. A case may run longer than the average case for very good reasons which relate to the particular circumstances of the case and may not even have anything to do with the defence. It is again difficult to see what definitive conclusions can be drawn from this criteria. We would also be cautious about drawing definite inferences from an assessment of the appropriate use of barristers, without first hand knowledge of the case. The only parties who can have first hand knowledge of a case are the prosecution, the defence and the court and we consider, that, perhaps, it may be preferable for the court to make the determination about the necessity to have a barrister assigned to a case and, if so, the level and number so assigned.

One of the most fraught aspects of evaluating quality of representation in a meaningful way centres around the question of lawyer/client confidentiality. Whether lawyers should be required to disclose sensitive material during audits is a core point. The Committee would hold that the nature of the lawyer/client relationship is such that it makes it very difficult in practice to have quality assessment. This is seen as a particular difficulty in the context of criminal matters, where the State is a party in every criminal matter as prosecutor and the question arises as to whether it is appropriate that a different ‘office’ of the State should review/assess how a lawyer is representing a client in proceedings involving the State.

It is noted that other evaluation criteria which may be used to assess quality relate to management systems and the file and case management procedures of a lawyers office (usually solicitor’s office). Again it would appear difficult for the purchaser of the legal aid service to draw definitive conclusions about the quality of service a lawyer provides to his/her client on the basis of this criteria.

In making the above points we do not wish to appear unfavourably disposed to any progressive attempts to bring about a more transparent and scientific evaluation of quality. As we have

54 Contracting mentioned, we would like to be in a position to rely on certain agreed mechanisms to evaluate quality so that we could be satisfied on objective grounds that the quality of representation provided under our system was of an acceptable standard. We make the above observation to show how difficult it is, in our view, to implement such a transparent and objective set of criteria to evaluate the quality of representation provided in criminal matters.

The Committee considers it important to make a final point in relation to structure of the English/Welsh Legal Aid Scheme which requires the Legal Aid Authorities to monitor quality which does not arise for the Department of Justice, Equality and Law Reform. A core difference between our Scheme and that of England/Wales is that in our case the contract to provide a service, such as it is, is between the client and the individual practitioners who have been assigned to represent the client by the court. In England/Wales lawyers enter into a contract arrangement with the Legal Services Commission to provide services under certain agreed conditions, including, inter alia, acceptance that they will provide a certain standard of work, which will be evaluated to ensure compliance. Thus the nature of the contract system now in operation in England/Wales places an onus on the State agency awarding the contract to monitor the level of service provided under it. In our Scheme, because the contract is between the client and his/her lawyer, which the client chooses of his/her own free will, it is the clients of the Scheme who, in effect, assure the quality of the service provided under it, with the Department of Justice, Equality and Law Reform paying the fees which apply.

(iii) Choice We are conscious of the dangers of accepting, without question, the contention that our system, which allows choice of lawyer, effectively guarantees quality of representation. Having regard to what we have stated previously regarding the lack of evidence to suggest a deficiency in the quality of service and representation provided to accused persons under the Criminal Legal Aid Scheme, we do believe that allowing the accused have choice of representation does create the conditions for bringing about a reasonable level of quality as a lawyer depends on his/her reputation for providing effective service to ensure that s/he continues to be chosen under the Scheme. In effect, we consider that the argument that market forces provide a good quality of representation holds some merit.

Contracting would inevitably involve some restriction on the unfettered choice of lawyer which a client currently enjoys under our Scheme. Allowing choice enhances client confidence in the system and ensures independence. We have stated previously that choice is desirable, and should, if at all possible, be maintained.

(iv) Administration A significant advantage of our existing Criminal Legal Aid System is that it not bureaucratic. It is administratively inexpensive for the reasons which we have set out in our First Report.

The provision of criminal legal aid by way of contracting, and all that it would entail, would give rise to the need for a significant increase in the level of administration. Different contracting models exist, for example: — to solicitors only where the cost would include all the elements that make up the cost of a case i.e. counsel, expert witness, — to solicitors and barristers separately,

55 Criminal Legal Aid Review Committee — Final Report

— to solicitors in respect of District Court cases only, — to solicitors in the Circuit and higher Courts, and — for particular counties only.

If any form of contracting was introduced, an ‘organisation’ would have to draw up the specification of what was to be provided, conduct the tendering process, award the contract, evaluate the service provided, take appropriate action where standards were not being met and handle all financial and other matters pertaining to such service provision.

While acknowledging that there may be a need for some more active management of the existing Criminal Legal Aid Scheme, the Committee is of the view that the cost of administering contracting, while difficult to cost, would be significantly higher than the current cost of administering the Scheme. All the functions which are currently discharged in respect of the Scheme would continue to be carried out — in the Courts and in the Courts Policy and Finance Divisions of the Department of Justice, Equality and Law Reform — but a whole new and substantial area of work would need to be undertaken.

4.9 Recommendation On the basis of our investigation of the merit of providing criminal legal aid services by way of contracting, the Committee does not recommend the implementation of contracting, be it the US model or the England/Wales model, for providing criminal legal aid in Ireland.

56 Chapter 5

Payment of Fees to Solicitors in respect of Garda Station Visits

5.1 Terms of Reference The Terms of Reference of the Committee include, inter alia, a review of the levels of fees paid to solicitors and barristers, including any claims for changes to the Scheme made by the Law Society and the Bar Council in relation to the fees payable under the Scheme.

5.2 Background In its submission to the Criminal Legal Aid Review Committee, the Law Society drew attention to the fact that there was no arrangement for the payment of a fee to solicitors for consultations with persons detained in Garda stations. The Society’s submission also drew the Committee’s attention to Recommendation 10 of the ‘Tormey’ Committee Report, which had previously examined this issue.

Following an invitation to the Irish Government by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) to review the situation whereby Criminal Legal Aid is not available for consultations between detained persons and solicitors in Garda stations, the Department of Justice, Equality and Law Reform by letter of 1 September, 1998, requested the Criminal Legal Aid Review Committee to consider the above matter. The Committee Chairperson, in his letter of 3 September, 1998 to the Department, indicated that he would raise this matter with the Committee and the Committee agreed to include an examination of the payment of fees to solicitors for Garda station visits in its programme of work.

On 4 February, 2000, the Department requested the Committee to consider giving priority to its examination as to whether a fee should be paid to solicitors for consultations with persons detained in Garda stations and to make an Interim Report to the Department on same. In this connection, the Committee was requested by the Department to consider whether payment of fees to solicitors in respect of Garda station visits should come within the ambit of the Criminal Legal Aid Scheme and, if so, whether a fee in respect of such visits should be made.

The entitlements of a person who is detained in a Garda station to consult a solicitor are set out in law.

5.3 Issues which were considered by the Committee Special meetings of the Committee were convened to address the issue at which the following matters were considered:— • whether the State should pay for legal advice services provided to persons detained in Garda stations, whose means are insufficient to enable them to pay for a solicitor themselves,

57 Criminal Legal Aid Review Committee — Final Report

• whether, if the State was to pay solicitors for advising persons in Garda stations, it should pay fees in respect of all cases where the Gardai exercise a power of arrest or whether it should only pay fees to those who are detained under the provisions of the Offences against the State Act, 1939 as amended by the Offences against the State (Amendment) Act, 1998 or the Criminal Justice Act, 1984 or the Criminal Justice (Drug Trafficking) Act, 1996, • whether the remuneration of solicitors for services under discussion should come within the ambit of the Criminal Legal Aid Scheme, • whether a scheme to provide for payment to solicitors for a consultation service provided to persons detained in custody at a Garda station should be placed on a statutory footing, and • whether, pending the implementation of such a scheme on a statutory footing, a scheme should be introduced on an administrative basis, the details of which would be agreed between the Department of Justice, Equality and Law Reform and the Law Society.

5.4 Analysis There was consensus that the State should pay for legal advice services provided to persons detained in Garda stations, in certain circumstances where the persons means were insufficient to enable them to pay for a solicitor themselves.

The Committee considered whether: (i) the State should only pay for consultations with persons in Garda stations in circumstances where the person is detained under the provisions of the Offences against the State Act, 1939 as amended by the Offences against the State (Amendment) Act, 1998 or the Criminal Justice Act, 1984 or the Criminal Justice (Drug Trafficking) Act, 1996, or (ii) the State should pay for consultations in cases where a person is detained in a Garda station for the purpose of the investigation of an offence and the person has a legal entitlement to consult with a solicitor, or (iii) the State should pay for consultations with all persons who are brought to a Garda station for whatever purpose, e.g. preferring of charges.

There was consensus that the right of persons referred to in category (i) to have access to a solicitor which would be paid for by the State, subject to their means, was warranted. Cases in category (ii) included persons detained in Garda stations in compliance with S.49 of the Road Traffic Act, 1961 and the Committee considered that, on balance, cases in this category should also be legally aided, subject again, to the issue of means. With regard to the cases referred to in category (iii), there was consensus that legal aid should not apply.

It was considered that the remuneration of solicitors for services under discussion should not come within the ambit of the Criminal Legal Aid Scheme. The fact that criminal legal aid is initiated when a person is charged before the Court is considered important in this context as

58 Payment of Fees to Solicitors in respect of Garda Station Visits the matter at issue precedes the judicial phase of the criminal process. The Committee also draws an important distinction between legal aid (representation) and legal advice.

There was consensus that a scheme to provide for payment to solicitors for a legal advice service provided to persons detained in custody at a Garda station should be placed on a statutory footing, and that, pending the implementation of such a scheme on a statutory footing, a scheme should be introduced on an administrative basis, the details of which would be agreed between the Department of Justice, Equality and Law Reform and the Law Society.

5.5 Recommendation The Committee recommended that in circumstances where: • a person is detained in a Garda station for the purpose of the investigation of an offence, and • s/he has a legal entitlement to consult with a solicitor, and • the person’s means are insufficient to enable him/her to pay for such consultation (i) consultations with solicitors should be paid for by the State, (ii) the remuneration of solicitors for consultations with detained persons should not come within the ambit of the Criminal Legal Aid Scheme because they precede the judicial phase of the criminal process, and (iii) pending the introduction of legislation to provide for the payment to solicitors for services referred to above, an administrative scheme should be introduced as a matter of urgency.

Chapter 6

The Attorney General’s Scheme

In this chapter, we examine the merit of broadening the scope of the Criminal Legal Aid Scheme to include the ‘criminal’ provisions of the non-statutory Attorney General’s Scheme.

6.1 Background to the establishment of the Attorney General’s Scheme Towards the end of 1967 an undertaking was given in the Supreme Court on behalf of the Attorney General and the Minister for Finance to the effect that in respect of an application for habeas corpus then before the Court [application of Woods (1970 I.R. 154)] and in respect of every application for habeas corpus made from that time onwards, the State would defray the cost of solicitor and counsel where applicants were not in a financial position to engage such professional representation. This facility would be made available whenever the High Court or the Supreme Court, as the case may be, considered it proper that solicitor and counsel should be assigned to make submissions in support of the application.

This non-statutory arrangement was extended in 1976 to include all State-side Orders and bail motions.

6.2 Provisions of the Scheme The provisions of the Attorney General’s Scheme in the Supreme Court, the High Court and the District Court are as follows:

1. The Scheme applies to the following forms of litigation (which are not covered by Civil or Criminal Legal Aid): (i) Habeas corpus applications. (ii) Bail Motions. (iii) Such Judicial Reviews as consist of or include Certiorari, Mandamus or Prohibition and are concerned with criminal matters or matters where the liberty of the applicant is at issue. (iv) Applications under section 50 of the Extradition Act, 1965 and extradition applications before the District Court.

2. The purpose of the Scheme is to provide legal representation for persons who need it but cannot afford it. It is not an alternative to costs. Accordingly, a person wishing to obtain from the court a recommendation to the Attorney General that the Scheme be applied must make his or her application (personally or through his or her lawyer) at the commencement of the proceedings and must obtain the recommendation at the commencement of the proceedings.

3. The applicant must satisfy the court that he or she is not in a position to retain a solicitor (or, where appropriate, counsel) unless he or she receives the benefit of the Scheme. To

61 Criminal Legal Aid Review Committee — Final Report

this end the applicant must provide such information about his or her means as the court deems appropriate.

4. The court must be satisfied that the case warrants the assignment of counsel and/or solicitor.

5. If the court considers that the complexity or importance of the case requires it, the recommendation for counsel may also include one senior counsel.

6. The costs payable to the solicitor, and the fees payable to counsel, under the Scheme are at most those which would be payable in a case governed by the Criminal Justice (Legal Aid) Regulations current for the time being, applied mutatis mutandis.

Generally speaking, the basis of payment is one of parity with the State legal team. Where there is no State team, e.g. in habeas corpus in family law matters, an equivalent fee is found in a habeas corpus matter where there was a State team.

7. Where there is more than one applicant, but only one matter is at issue before the court, the solicitor and counsel assigned shall represent all the applicants.

8. The Scheme is an administrative, non-statutory arrangement whereby payments are made out of the vote of the Office of the Attorney General in respect of certain legal costs in the types of litigation referred to in paragraph 1 of the Scheme in which, for the most part, the State is a party (although the State need not be a party to proceedings which are eligible for the Attorney General’s Scheme). The Attorney General is not bound by the recommendation of the Court.

For the most part the Attorney General does act on the recommendation of the Court. In a minority of cases the Court recommends the Scheme in circumstances which are not covered by the Scheme or, for instance, where an application is not made at the commencement of the proceedings in a given Court. If it is considered that the case does not come within the Scheme, the solicitor for the applicant is given an opportunity to explain why he or she considered it was within the Scheme and the matter is resolved ultimately by the Attorney General.

9. The Scheme only applies to proceedings of the type referred to in paragraph 1 of the Scheme conducted in the High Court and the Supreme Court and (in relation to extradition cases) the District Court. Where the proceedings are of a type which fall outside the scope of the Scheme, as in for example family law cases, the Scheme cannot be applied to those proceedings because public funds may only be applied for the purpose for which they have been provided by the Oireachtas. It is not within the discretion of the Attorney General to apply public funds to other purposes.

10. The term ‘‘the commencement of these proceedings’’ in section 2 of the provisions of the Scheme refers to the commencement of proceedings in a particular court. In other words, an applicant would not be prejudiced from seeking the benefit of the Attorney General’s Scheme to be applied to him or her in respect of Supreme Court proceedings by reason of the fact that he or she had not made such an application in relation to the

62 The Attorney General’s Scheme

High Court proceedings. However in these circumstances, the Scheme does not have effect retrospectively to entitle him or her to costs under the Attorney General’s Scheme in respect of the High Court proceedings.

11. These are the main conditions relating to the Attorney General’s Scheme. The Attorney General and the staff of the Office of the Attorney General are unable to give legal advice to members of the public. Members of the public should obtain their own legal advice as to their entitlement (if any) under the Attorney General’s Scheme.

The cost of the Attorney General’s Scheme in 1997, 1998 and 1999 was as follows:

Expenditure Breakdown

1997 1998 1999 £’000 £’000 £’000

Bail 202 249 263

State-side 122 112 472

Extradition 23 40 18

Total 347 401 753

There have been 4,352 bail applications from January 1997 to October 2000.

6.3 Expansion of the Criminal Legal Aid Scheme — the ‘Tormey’ Report The Tormey Committee, in it’s Report dated 9 April, 1981, considered suggestions to the effect that the scope of the Criminal Legal Aid Scheme should be expanded to include certain types of proceedings which were not covered by it.

Paragraph 10.1.2 of the Report stated that

‘‘The assistance of lawyers may be provided, at State expense, in respect of all ‘‘State- side’’ proceedings and bail motions under a non-statutory arrangement which is operated by the Attorney General’s Office. These are not, strictly speaking, criminal proceedings but they frequently arise in connection with criminal cases. There is a strong case for bringing the existing arrangement within the scope of the Criminal Legal Aid Scheme and we recommend accordingly’’.

Paragraph 10.1.3 of the Report stated that

‘‘Extradition proceedings do not come within the scope of the Criminal Legal Aid Scheme — the person whose extradition is sought is not ‘charged before’ the Court — (see Section 2(1) of the Act). It is clear, however, that the person concerned would need to be legally represented in proceedings of this kind and we recommend that extradition proceedings be brought within the Criminal Legal Aid Scheme. It would be necessary for the person

63 Criminal Legal Aid Review Committee — Final Report

who is the subject of the proceedings to satisfy the eligibility criteria specified in the Scheme’’.

In the Tormey Committee’s summary of recommendations, paragraph 16 of the Report stated that

‘‘The non-statutory arrangement under which legal aid is provided in certain cases by the Attorney General’s Office should be brought within the scope of the Criminal Legal Aid Scheme’’.

Paragraph 17 of the Report stated that

‘‘Extradition Proceedings should be brought within the scope of the Criminal Legal Aid Scheme subject to the conditions specified in Paragraph 10.1.3’’.

6.4 Submissions Received A number of submissions suggested that consideration should be given to including the Attorney General’s Scheme within the scope of the Criminal Legal Aid Scheme.

The Attorney General’s Office stated in it’s submission that

‘‘The (Attorney General’s) Scheme has no legislative basis. In the Attorney General’s opinion it is inappropriate that such an ad hoc system of legal aid should exist. The Attorney General would ask that your Review Committee recommend that this Scheme in so far as it relates to matters connected with criminal cases be incorporated into the Criminal Legal Aid Regulations’’.

The Law Society stated in it’s submission that

‘‘The present system is unnecessarily complicated and uncertain and should be incorporated into any new Legal Aid System. In this we echo recommendations 16, 17, (18 and 19) of the Tormey Report’’.

The Bar Council stated in it’s submission that

‘‘In respect of matters such as Bail Motions, habeas corpus applications and Judicial Review applications, the Criminal Legal Aid Scheme does not provide legal representation to persons who cannot afford to pay for it. In such cases representation is provided to impecunious persons by means of what is known as the Attorney General’s Scheme.

The present practice is that once a recommendation is made by the presiding Judge for the application of the Attorney General’s Scheme, an Order is drawn up by the Registrar of the High Court. This Order is recovered by the Solicitor for the Applicant and then furnished to the Chief State Solicitor’s Office with a note of fees.

The Bar Council proposes that the provisions of the Criminal Legal Aid Scheme be extended to cover such Bail applications. It is the view of the Council that it would make

64 The Attorney General’s Scheme

for greater efficiency if the processing of fee payment claims currently made under the Attorney General’s Scheme were part of the normal claims processing system for Criminal Legal Aid cases’’.

6.5 Provisions of the Criminal Legal Aid Scheme 1. Under the Criminal Justice (Legal Aid) Act, l962 and the Regulations made under it, free legal aid may be granted, in certain circumstances, for the defence of persons of insufficient means in criminal proceedings. The grant of legal aid entitles the applicant to the services of a solicitor and, in certain circumstances, counsel, in the preparation and conduct of his/her defence or appeal.

2. The Scheme came under scrutiny in the State (Healy) .v. Donoghue (1976). In that case the Supreme Court decided that (a) the granting of legal aid is, in certain circumstances, [generally cases of a more serious nature] a constitutional right; (b) there is an obligation on the Court in such cases to inform the accused of his right to legal aid; (c) once legal aid is granted the case cannot proceed unless the accused is legally represented.

3. Under the Act, the Courts are responsible for the granting of legal aid. An application for legal aid is made to the court, either, in person, by the applicant’s legal representative or by letter. An applicant for legal aid must establish to the satisfaction of the court that his/her means are insufficient to enable him/her to pay for legal aid him/herself. This is purely a discretionary matter for each court and is not governed by any financial eligibility guidelines. However, an applicant may be required by the court to complete a statement of means.

When granting legal aid, 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. However, it is almost invariably granted to persons charged with indictable offences whose means are considered by the courts to be insufficient. Where the charge is one of murder or where an appeal is one from the Court of Criminal Appeal to the Supreme Court, free legal aid is granted merely on the grounds of insufficient means.

6.6 Analysis of merit of broadening the scope of the Criminal Legal Aid Scheme to include the ‘criminal’ provisions of the Attorney General’s Scheme In considering the merit of the above, the following points may be made in favour of the ‘proposal’. (i) the existence of the Attorney General’s Scheme, in addition to the existing schemes of criminal and civil legal aid, is an anomaly. It exists solely because the proceedings covered by the Scheme fall outside either the Criminal Legal Aid Scheme or the Civil Legal Aid Scheme as they are presently constituted. Criminally related matters represent the bulk of applications under the Attorney General’s Scheme, and

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applications for bail represent more than 90% of those. It is anomalous that in one criminal case two separate legal aid schemes can apply. Solicitors and barristers are currently paid fees under the Criminal Legal Aid Scheme in respect of each contested bail application to the Circuit Court or Special Criminal Court. It would thus appear preferable to consolidate the provision of all legal aid for all criminal matters in the one Scheme. (ii) there are no legal or constitutional reasons why the aspects of the Attorney General’s Scheme which relate to criminal proceedings could not be brought within the ambit of the Criminal Legal Aid Scheme. (iii) from a purely operational viewpoint, staff of Department of Justice, Equality and Law Reform are conversant with the operation of the Criminal Legal Aid Scheme and it may be that the implementation of the proposal would generate potential savings to the Exchequer through a more economic use of resources. (iv) whereas the types of case comprehended by the Attorney General’s Scheme have been well known to the Courts and the legal profession, the new system of Judicial Review instituted in the High Court has produced confusion as to the extent to which the Attorney General’s Scheme comprehends applications for Judicial Review. Such confusion could be eliminated if the provisions of the Scheme were placed on a statutory footing. (v) the ‘Tormey’ Committee recommended that the Attorney General’s Scheme (in relation to State-side proceedings and bail motions) should be brought within the scope of the Criminal Legal Aid Scheme.

6.7 Should the Attorney General’s Scheme come within the scope of the Criminal Legal Aid Scheme 6.7.1 Recommendation On the basis of the analysis set out in section 6.6 the Committee recommends that the elements of the Attorney General’s Scheme specifically referred to in section 6.2.1, viz. (i) Habeas corpus applications, (ii) Bail Motions, (iii) Such Judicial Reviews as consist of or include Certiorari, Mandamus or Prohibition and are concerned with criminal matters or matters where the liberty of the applicant is at issue, (iv) Applications under section 50 of the Extradition Act, 1965 and extradition applications before the District Court, should be placed on a statutory footing and brought within the scope of the Criminal Legal Aid Scheme.

66 Chapter 7

Means Testing

7.1 Introduction As will have been observed in Chapter 1 of this Report, one of the main terms of reference of the Review Committee is the question of means and the assessment of eligibility.

The Committee was specifically required to conduct ‘‘a review of the current practices within the Public Service for determining a person’s means with particular reference to proposals being drawn up by the Department of Social Welfare Committee examining the development of an Integrated Social Service System’’.

The question of means also arose in the context of a separate term of reference set for the Committee, viz. an assessment of the Civil Legal Aid means testing regime as part of ‘‘an examination of the experience of the Legal Aid Board in relation to the delivery of the Civil Legal Aid Scheme’’, and generally in the context of the Committee’s remit to review the operation of the Scheme and the ‘‘making of recommendations as to the manner in which the Scheme might be improved so that it operates effectively and provides value for money’’.

This Committee has been charged with assessing how means testing should apply to the grant of criminal legal aid, specifically in regard to whether practices for determining a person’s means which are applied in the wider public service may be applicable in a criminal legal aid context so that only those entitled to criminal legal aid receive it. The recommendations of the ‘Tormey’ Committee, which examined the Criminal Legal Aid System in 1975-1981, in relation to means were also examined and the extent to which those recommendations were implemented or not implemented was discussed. On the question of legal aid criteria, the recommendation given in the Tormey report is that the interpretation put on the criteria for legal aid by the Supreme Court in the Healy case should stand and that it should be a matter for the trial judge in each case to decide whether the statutory requirements, as well as the considerations specified in the Healy case, are met. The ‘‘gravity of charge’’/‘‘exceptional circumstances’’ aspect of the assessment of eligibility was not addressed by the Tormey Committee.

7.2 The State (Healy) v. Donoghue [1976] I.R. 325 Prior to 1976, it was considered that there was no absolute right to legal aid for a poor person. The term ‘poor person’ is understood to refer to a person whose means are insufficient to enable him/her to pay for their legal representation in criminal cases. However, a very significant Supreme Court ruling in 1976 had a dramatic impact on the operation, and cost to the exchequer, of the Criminal Legal Aid Scheme. In State (Healy) v. Donoghue, O’Higgins C

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J stated that if a person is ignorant of his right to legal aid and fails to apply on that account and is not given legal aid then his constitutional right is violated. If the person does not know of his right, he cannot exercise his right. If he cannot exercise his right, his right is violated. The Court also stated that the Criminal Justice (Legal Aid) Act, 1962 imposes a constitutional duty on the State, i.e. to provide legal aid to poor persons accused of a serious crime: ‘‘If the right to be represented is now an acknowledged right of an accused person justice requires something more when, because of a lack of means, a person facing a serious criminal charge cannot provide for a lawyer for his own defence. In my view the concept of justice under the Constitution ... requires that in such circumstances the person charged must be afforded the opportunity of being represented’’.

Furthermore, the Court stated that the Act was a recognition of what is the Constitutional right of a poor person facing a serious criminal charge.

The case had an enormous bearing on legal aid because it substantially altered what appeared to be the widely held understanding of the rights of an accused person in regard to legal aid. The general understanding was that these rights were defined by the Act and the various Regulations made under it. However, the understanding following the Healy case was that an accused person who faces serious charges and who cannot afford to pay for legal representation has a constitutional right to legal aid and that it was necessary, in defining the extent of his/her rights, to have regard to the provisions of the Constitution. Furthermore, the Healy case made it clear that the accused is entitled to be informed by the Court in which s/he is appearing of his/her possible right to legal aid and the case also made it clear that if legal aid is granted, the case cannot proceed unless the accused is actually represented.

7.3 The Statutory Position 7.3.1 Legal Aid (District Court) Certificate: Eligibility for a legal aid (District Court) certificate is set out in section 2 of the Criminal Justice (Legal Aid) Act, 1962:—

‘‘if it appears to the District Court—

(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and

(b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it,

the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.’’

7.3.2 Legal aid (trial on indictment) certificate: Eligibility for a legal aid (trial on indictment) certificate is set out in section 3(2) of the 1962 Act — the District Judge again determines if

68 Means Testing the means of the applicant are insufficient to enable him to obtain legal aid. The merit criterion is satisfied if the return for trial is on a charge of murder or if:—

‘‘it appears to the District Judge or the judge of the court before which the person is to be or is being tried having regard to all the circumstances of the case including the nature of the defence it is essential in the interests of justice that the person should have legal aid in the preparation and conduct of his defence at the trial’’.

With regard to appeals to the Court of Criminal Appeal, section 4(2)(c)(ii) of the 1962 Act provides again that the Court must be satisfied that the means of the applicant are insufficient before embarking on an examination of the merits test.

7.3.3 Statement of Means: Section 9 (1) of the Criminal Justice (Legal Aid) Act, 1962 provides that:— ‘‘before a person is granted a legal aid certificate he may be required by the court or judge, as the case may be, granting the certificate to furnish a written statement in such form as may be prescribed by the Minister by regulations under Section 10 of this Act about matters relevant for determining whether his means are insufficient to enable him to obtain legal aid’’.

Section 11 (1) of the Act provides that:— ‘‘a person who, for the purposes of obtaining free legal aid under this Act, whether for himself or some other person, knowingly makes a false statement or false representation either verbally or in writing or knowingly conceals any material fact shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months or to both the fine and the imprisonment’’.

Section 11 (2) of the Act provides that:—

‘‘Upon conviction of a person of an offence under this section, the court by which the person is convicted may, if in the circumstances of the case the court so thinks fit, order the person to pay to the Minister the whole or part (as the court considers appropriate) of any sum paid under section 7 of this Act in respect of the free legal aid in relation to which the offence was committed, and any sum paid to the Minister pursuant to this section shall be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance’’.

There is no appeal procedure provided in the 1962 Act or Regulations thereunder against refusals to grant legal aid. Section 8(2) of the Principal Regulations provides that:—

‘‘Where an application by a person under subsection (2) of section 4, 5 or 6 of the Act for a certificate for free legal aid is refused, the registrar of the court to which the person may then apply for a certificate shall be notified of such refusal by the court officer concerned’’.

However, an accused can apply to each court jurisdiction for a legal aid certificate for that court. This avenue is not available to those accused of a summary offence in the District Court.

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7.4 The Irish System in Practice Legal aid may be granted only if the Court is satisfied that the means of the person applying for it are insufficient to enable him/her to obtain legal aid at his/her own expense. The applicant for legal aid may be required under Section 9 of the Criminal Justice (Legal Aid) Act, 1962 to complete a statement of means as provided for in the 1965 Regulations. The statement of means consists of a single page document listing the applicant’s sources of income and assets. The legislation does not prescribe eligibility standards. In practice, the statement of means provided for under the Regulations is rarely required of accused persons by the court although practice varies from court to court. In light of the judgement in State (Healy) v. Donoghue, refusal to grant legal aid could give a convicted defendant a very likely avenue for appeal. Commonly, an assertion by an accused that s/he is in receipt of unemployment benefit or assistance is accepted as sufficient evidence of lack of means. In general, there is little or no verification of claims and the only sanction for including false information on the statement is a summary conviction. These are rarely, if ever, prosecuted.

For summary criminal matters, there are 2 tests: merits and means (i.e. the conditions for the granting of a certificate involve a means element). The first assessment is based on means. If an applicant fails on this front s/he cannot receive legal aid. If the means test is satisfied then the judge will look into the merits of this application and will grant legal aid if the interests of justice demand.

A fixed application of this means test may exclude many individuals who although have income and assets of a certain level couldn’t afford adequate representation for a trial of some complexity. Therefore, although since the case of State (Healy) v. Donoghue the interests of justice test has operated very flexibly and has allowed the circumstances of every case to dictate eligibility, the prima facie position of the means test may in theory mitigate against this (i.e. should the test take trial length and complexity into account). In theory, only the merits test should involve the use of discretion. In practice, in the Irish courts the means test is also applied in a discretionary manner.

7.5 What is Means Testing? Before embarking on any discussion of the necessity in principle for any form of ‘‘means testing’’ it is necessary to define what exactly we mean by the term. It is appropriate to distinguish at this stage between a ‘‘Statement of Means’’ on the one hand and ‘‘means testing’’ on the other.

The statement of means is a statement made by an applicant for legal aid which sets out details of the applicant’s sources of income and assets. It is not subject to verification except for a criminal sanction for giving false information which, as already outlined, is rarely prosecuted.

Means Testing is a more rigid system of assessment and verification such as is operated by the Department of Social, Community and Family Affairs and the Legal Aid Board. More detailed information is usually required along with the provision of formal proofs of matters therein such as social welfare records, bank statements, etc. Furthermore, the verification of such information requires a bureaucracy, procedures, rule-bound decision-making, income limits and guidelines etc. as opposed to the flexibility of judicial discretion on a case by case basis. Where

70 Means Testing means testing applies, it is customary to withhold the benefit and assistance until the means testing is completed and requirements fulfilled.

The central thesis of means testing is to exclude from a particular scheme those individuals who are not entitled to receive it or to grant a particular service only to those who can not afford it.

7.6 Means Testing in Practice — the Experience of the Legal Aid Board. 7.6.1 Example of a Means Testing System To clarify what means testing entails in practice, the Committee looked to the experience of the Legal Aid Board to establish how their system operates. (a) Application: Applications for civil legal aid are made in writing to a Law Centre. Eligibility is provisionally determined by a solicitor who then forwards the application to the Legal Aid Board (for determination on the merits and where financial eligibility is unclear). A meeting is usually arranged with the applicant to complete the application/means test form. This may take upwards of 10 to 15 minutes and in the context of a large number of applicants is extremely time-consuming and expensive to operate. The client is asked to bring with him/her certain documentation including information as to his or her means (e.g. payslip, social welfare book, bank statements etc.) and arising from this and from answers to the questions posed by the staff of the Law Centre, the application form is completed. (b) Eligibility: Eligibility is calculated by reference to an applicant’s ‘‘disposable income’’ (i.e. total income minus allowed outgoings) and, where appropriate, ‘‘disposable capital’’. If an applicant’s disposable income or capital exceeds a certain amount, i.e. the amount prescribed by the Minister for Justice (Equality and Law Reform) in the Civil Legal Aid Regulations, 1996 (£7,350 per annum/£200,000 capital) s/he shall not be eligible for legal aid. Civil legal aid is not ‘‘free’’ and contributions may be required depending on the level of disposable income or capital. Individuals on social welfare pay the minimum specified contribution. Contributions may be waived in whole or in part in the case of severe hardship. Assessment of eligibility is a matter for the Board but this can be and is commonly delegated to the solicitor-in-charge at a Law Centre who then issues the certificate (Regulation 5 of the 1996 Regulations). Proposed refusals of legal aid, however, in practice are finally decided at Legal Aid Board level. Law Centre staff rely very much on the word of applicants with regard to their stated income and outgoings as they do not have the facilities to assess means on all applications. The legal aid certificate is offered to the client in writing with details of conditions (if any) and contribution payable. S/he then has one month to accept or reject it and must undertake to abide by the conditions therein and pay to the Board any contribution (including costs or damages). (c) Verification: The verification of the information from the interview and the application form is not carried out by the Law Centres or the Legal Aid Board but by ‘‘any person or body who is, in the opinion of the Board, likely to be in a position to provide assistance’’. The Department of Social, Community and Family Affairs (DSCFA) is the body usually relied on to provide investigatory resources. That Department has

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moved away from means testing everyone — they now rely on the experience of the individuals working in the system to direct investigations towards the most likely sources of abuse, and couple this ad hoc scrutiny with a system of random sampling from the total number of cases. This system was established at the time of the setting up of the Legal Aid Board in 1980. Due to its resources and information the DSCFA is in a better position to determine the eligibility of individuals for legal aid. It would be too expensive in terms of time and money to check all legal aid applications and experience shows that the level of abuse is low. In general, the Law Centre staff take an individual’s word with regard to their stated income or outgoings.

There are a number of ways information is verified and cross-checked:

(1) Some 4% of applications taken at random are sent to the Department of Social, Community and Family Affairs for verification — these are rarely if ever overturned. These are taken after legal aid has been granted. The Department has moved away from means testing everyone for the purposes of benefit. Now investigations are targeted or control samples are taken.1

(2) Law Centre staff sometimes suspect that false information is being supplied. In such a situation they notify the Legal Aid Board and withhold granting of legal aid. Such applications are then sent to the Department of Social, Community and Family Affairs who invesigate the case in the normal way (investigation by inspectors etc.). Of these cases, numbering perhaps 60 in every 10,000, only 30-50% are ever proved to have been ineligible.

(3) In the case of family disputes (judicial separation, divorce etc.) allegations are often made against the opposing side that there are concealed assets or bank accounts etc. If it is suspected by the Law Centre staff that there is truth in these allegations they may further investigate the claim or forward it to the Department of Social, Community and Family Affairs.

The turnover time taken by the Department of Social, Community and Family Affairs to process a request for assessment would be a minimum of 2 to 3 weeks. Difficulties can arise in situations where the DSCFA is not aware of assets which are held by certain persons in respect of whom checks are carried out, e.g. persons whose affairs are being examined by the Criminal Assets Bureau.

Means testing, as applied by the Legal Aid Board, therefore involves

(a) the compilation of information on the applicant’s means,

(b) assessment and determination of eligibility based on that information according to objective criteria, and

1This suggests the possibility of a similar ex post facto sampling system being used to determine the level of abuse in the criminal legal aid system. There would be no risk of interference with the right to a fair trial by denying representation, yet it could be established if defendants were receiving something to which they are not entitled by law.

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This system entails a number of elements — time, bureaucracy, administrative as opposed to judicial decision-making and principles of public service provision, i.e. objective application of criteria.

7.7 The Integrated Social Service System In examining the issue of means the Committee was requested to take account of contemporary and future developments which may be relevant to means testing in the context of Criminal Legal Aid. Specifically, one of the terms of reference of the Committee was to review the current practices within the Public Service for determining a person’s means with particular reference to proposals being drawn up by the Department of Social, Community and Family Affairs (DSCFA) Committee which was examining the development of an Integrated Social Service System (ISSS).

The ISSS Committee was established to put forward proposals which would lead to the development of a system with a view to providing a more integrated approach to the administration, delivery, management and control of statutory income support services and comprised representatives of a wide range of Government Departments and Local Authorities. On the basis of its research, the ISSS Committee established that some 40% of applicants for income support services under statutory schemes had their means assessed by more than one State agency. Indeed, in many cases applicants for different income support services which were administered by different branches of the same State Agency had undergone separate means assessments which used different criteria. In keeping with the aims of the Strategic Management Initiative in the Civil Service, which, inter alia, promotes the introduction of measures to streamline procedures with a view to providing a more integrated and efficient delivery of all services, it was recommended that data should only be captured and stored at one point, such that it would then be accessible to all Government Departments/Local Authorities who might have a requirement for it.

The ISSS Committee identified that a wide degree of uniformity and consensus had emerged in terms of identifying the criteria which ought to be used as the means factors, i.e. property, capital and earnings etc. but that the treatment of the means factors differed, often quite considerably, between the various service providers, principally to achieve different policy objectives. For example, where a person was deemed ineligible to receive a DSCFA grant, that would not mean that they would be automatically able to pay for their own legal representation in a criminal trial or civil trial. Many of the DSCFA assessments were designed to determine whether somebody had a basic level of income on which they could subsist. 40% of all Social Welfare recipients had no assessable income.

The principle recommendations of the (ISSS) Committee were as follows:

• Simplify means assessment across all providers for all schemes to remove discrepancies as to what constitutes the means factors and move towards a single means assessment.

• Share means data by establishing a central means database. The Social Community and Family Affairs Means Recording System stores in excess of 300,000 assessments which could be shared by other service providers, subject, of course, to there being no legal impediments involved. The ISSS Committee considered whether there was merit in setting up an independent Means Assessment Agency but this idea was rejected as it

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did not appear to provide any added value given that there was already a DSCFA Means Recording System in operation which would need to be continued, having regard to the multitude of schemes operated by that Department. • Customers should undergo one means test in any period of 12 months, whereby the assessment would have a shelf life for that period, which would be accessible and used by all service providers.

• Changes in means should trigger a review of all claims made by the applicant for all services.

Developments in the above regard were included in the Social Welfare Act, 1998 which allows for the implementation of a public service identifier which would be used beyond the Revenue/DSCFA area and extend into the Health and Education sectors by providing for the sharing of data between different agencies. The Legal Aid Board is also included among the bodies which may use the public service identifier when this is operational. The 1998 Act did not cover criminal legal aid pending consideration as to whether there were issues which needed to be addressed, e.g. data protection, prior to its inclusion.

On 21 July 1999, the Government decided (decision S27850) to relaunch the Integrated Social Services Strategy as a wider public service initiative known as REACH. The main deliverables of REACH are to — promote takeup of the Personal Public Service Number as a common identifier, — develop and promote the Public Service Card as the key to accessing public services, — establish a shared database of individuals means information to be used by public service bodies in determining eligibility for means tested schemes, and — foster initiatives across the public service to integrate services using the shared data platform and to act in an advisory capacity for agencies considering such initiatives.

The timescale for the delivery of these objectives is January 2000 to December 2002 at which time the Government will review the initiative.

The Government also approved additional dedicated staffing and funding resources for REACH. A cross Departmental REACH structure has been established to deliver these objectives. This will consist of a high level consultative committee comprising representatives of public bodies and from the private sector and a full time REACH Unit with staff seconded from the public service. The unit has been established under the cross departmental provisions of the Public Service Management Act, 1997.

7.8 Proposals contained in Submissions in relation to Means Testing and Related Issues The Committee is grateful to those who submitted opinions and proposals which were very helpful in consideration of the issue of means.

With regard to the Statement of Means, many of the submissions favour the compulsory completion of such a statement.

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One submission pointed to ‘‘the bizarre situation where defendants on serious drug charges, for example, apply for and are granted Legal Aid and then ask the court to fix cash bail in lieu of surety’’.

Another submission considered that: ‘‘The current free legal aid scheme is framed in such a way that it is open to abuse, although it is not possible to quantify the extent to which this may be prevalent...... while section 9 of the Criminal Justice (Legal Aid) Act, 1962 provides for the completion of a written declaration on the part of the accused seeking free legal aid, the form would not appear to be in everyday use. The thrust of this declaration is to place the onus on the accused to provide information relevant to determining whether his/her means are insufficient to enable him/her to obtain legal aid. A significant improvement which would be made to the system, would be to make the use of such form mandatory for all applicants for legal aid ...... while members of An Garda Siochana are, on occasion, asked their views on the financial means of the accused seeking free legal aid, this invariably occurs on the first appearance in court when little may be known about the accused...... there is often difficulty in determining the financial means of an accused person seeking to benefit from the scheme. It is suggested that greater latitude be permitted — possibly by legislation — to permit reasonable inquiries to be made to ascertain the means of persons seeking to obtain the services of the scheme’’.

Judicial submissions included proposals that: ‘‘a new form of application for legal aid in Criminal cases is necessary. The existing form is inadequate. It is submitted that a more comprehensive form be introduced’’...... ‘‘the Legal Aid form is now out of date and should be revised to bring it into line with modern circumstances. It should for instance ask if the applicant owns a car, if his/her spouse is working. It is felt that questions relating to the ground rents, rates and monthly mortgage repayments for the applicant’s house are of little relevance nowadays. Moreover question 11 (which deals with the responsibility of parents or guardians to pay legal aid) should relate to the age of 18 and not 21’’. ‘‘the penalties for making a false declaration should be increased. It is submitted that a fine of one thousand pounds and/or imprisonment for up to twelve months be substituted’’. ‘‘a Court should be empowered to requisition enquiries by any Government departments and agencies concerning the means of an applicant at any stage even subsequent to a decision to grant legal aid’’. ‘‘...... favour an alteration of the Scheme which would include a provision that applications for Legal Aid be dealt with prior to the appearance of the accused in Court. Clear cut cases could be decided by District Court Clerks or County Registrars. In the event of a refusal, the matter could go before the Judge by way of ‘‘appeal’’. These applications could be dealt with in Chambers prior to the appearance of the accused before the Court’’. ‘‘there is no provision at present for the payment for partial Legal Aid. Circumstances can arise where an accused person can afford a Solicitor or Barrister or may be able to afford

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Lawyers but not expert witnesses. Provision should be made in the Scheme for providing for some but not all of the costs of the defence.

...... For example a working man with a reasonable wage but not enough to pay for a full jury trial, could however, afford to pay a contribution’’.

‘‘there is at present no jurisdiction to revoke a certificate once granted. There should be, if information comes to light showing that the accused did in fact have means which he did not disclose’’......

‘‘a Court should be empowered to withdraw legal aid: (a) in the event of a false declaration, (b) should the persons means alter subsequent to the declaration or the granting of legal aid in such manner as to disqualify him’’.

7.9 The Tormey Committee and Means Testing The Tormey Report recommended that completion of a Statement of Means should no longer be discretionary and machinery should be introduced whereby the statement could be verified. The Court could decide in each case whether verification was necessary and the Department of Social Welfare (now the Department of Social, Community and Family Affairs) could carry this out, and then report to the Department of Justice (Equality and Law Reform). Means should only be verified in cases of doubt.

Paragraph 9.2.6 of the Tormey Committee Report stated that

‘‘We consider that the completion of a statement of means by the applicant should no longer be discretionary (as it is under Section 9 of the Act) — the statement should be completed in all cases. In addition there should be machinery through which statements of means could be verified. The Court should, in each case, decide whether verification was necessary. The statement of means signed by the accused should authorise the Department of Social Welfare, at the request of the Court, to take any steps necessary in order to verify the statement. That Department should, if the trial was over, report its findings to the Department of Justice who would decide what action, if any, was required’’.

Paragraph 9.2.7 stated that

‘‘The number of cases in which the Court would find it necessary to resort to the means verification process should be small. In the vast majority of cases the Courts would be able to assess whether the statement was accurate or near accurate (the issue being whether the means of the accused are ‘‘insufficient’’) without any detailed investigations. If the means verification processes were resorted to in a significant number of cases it could result in unnecessary delay and would thereby give rise to cost which would not be justified having regard to the likely savings. Ideally, the Courts would have means statements verified only in cases of doubt’’.

This suggested modification of the system while more stringent than the system presently in operation did not entail the bureaucratic structures that would be necessary to sustain a Legal Aid Board type system. Judicial assessment of eligibility would remain the norm with reference to more formal verification procedures only in cases of doubt.

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7.10 Means and Criminal Legal Aid — Analysis and Recommendations. 7.10.1 Means testing and Criminal Legal Aid — the issue in principle. In our assessment of how means testing should apply to the grant of criminal legal aid as is required of us in accordance with our terms of reference, a view did emerge among some members of the Committee to the effect that it was questionable as to whether any means test should apply to the grant of criminal legal aid, i.e. that all persons who are charged with a criminal offence should be entitled to free legal aid.

The rationale for the view that free legal aid should be granted to all includes the following:

— criminal legal aid is in the unique position of involving particular rights (due process) which are at the core of the rule of law and limitation of the arbitrary power of the State and the application of the principle that such a service should only be provided to those who comply with a means testing procedure may result in injustice even if such injustice was brought upon an individual by his own actions.

— in equity, as persons who are acquitted of charges preferred against them by the State who are not legally aided expend their own money, sometimes substantial money, to secure their acquittal. Such persons are out of pocket and have no mechanism to have such funds which have been expended by them in securing their acquittal, reimbursed.

— on grounds of cost, in that very substantial costs have been awarded against the State in cases where convictions are overturned in the Court of Criminal Appeal. For example, £1.035m (\1.31m) was paid out by the State in costs between 1996 and 1999, which is an average of £206,000 (\261,566) per year. If the persons involved in such cases were legally aided such costs would not have arisen and a financial ‘saving’ would accrue to the State. The monies saved in this context could, it is argued, pay for the provision of legal assistance to those who currently do not receive legal aid. In this regard, there were 1,171 Bills of Indictment lodged in the Dublin Circuit Office in 1999 and legal aid was granted in all but 40 of those Bills. This means that all bar approximately 3.4% of persons who appeared before the Dublin Circuit Court in 1999 were legally aided. The cost of legal aid fees for all the Circuit and higher Courts (i.e. Central and Special Criminal Courts and the Court of Criminal Appeal) in 1999 was £12m (\15.24m). Extrapolating from the Dublin Circuit Court figure suggests that approximately £408,000 (\518,053) additional funding would be required for the provision of free legal aid to all in 1999. This, however, would be offset by the approximate saving of an average of £206,000 (\261,566) per year, referred to above, since no legal costs would be awarded against the State in these cases.

— the chief cost associated with means testing, the verification of the information supplied by the applicant, would be eliminated. The cost of the bureaucratic procedures used to enforce the principles of means testing may well outweigh the savings that might be made from rooting out possible abuse. The contention that public services should only be provided to those who cannot afford them be applied in the context of criminal legal aid is a moot point, given that it may lead to an increase in the cost of the Scheme, particularly when there is a lack of evidence as to whether there is a sufficient level of abuse in the Scheme to justify the costs that would be associated with large-scale verification of claims. In terms of cost it is also argued that there would be savings in

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court time as means testing could give rise to delays in the processing of criminal business.

Other members of the Committee, while recognising the merit of the above arguments believe that means testing should apply to the grant of criminal legal aid, for the following reasons:

— the constitutional position as it is understood following the Supreme Court ruling in the State (Healy) V Donoghue [1976], I.R. 325, is that an accused person who faces serious charges — for example, charges which could result in his imprisonment — and who cannot afford to pay for legal representation (emphasis added) has a Constitutional right to legal aid.

— the law in the matter, which is the Criminal Justice (Legal Aid) Act, 1962, provides that the Court must be satisfied before granting free legal aid that, inter alia, the means of a person who appears before the Court must be insufficient to enable him/her to obtain legal aid.

— the Government decision which set up the Committee, specifically required the Committee to conduct ‘‘a review of the current practices within the Public Service for determining a person’s means with particular reference to proposals being drawn up by the Department of Social Welfare Committee examining the development of an Integrated Social Service System’’. Implicit in this term of reference is that the Government requested the Committee to examine how means testing should apply in a criminal legal aid context rather than whether it should apply.

— the cost of the Criminal Legal Aid Scheme in 1999 was £17.7m (\22.47m) and it is considered imperative that a publicly funded Scheme with expenditure of that order should be subject to best practice financial control and accountability procedures in accordance with guidelines set down by the Comptroller and Auditor General. In addition, means testing should apply to the Scheme as it does to all other income support Schemes provided by the State.

— there is a lack of evidence to suggest that the rights of citizens who face criminal charges are in any way infringed for reasons that they are not provided with legal representation for their trial or appeal as the case may be.

The Committee could not achieve consensus on whether means testing should apply to the grant of criminal legal aid. However, the Committee decided, having regard to its terms of reference as determined by the Government that it would examine how best to apply means testing to the grant of criminal legal aid.

7.10.2 Assessment of eligibility — what constitutes ‘‘insufficient means’’? Under the 1962 Act, determination of financial eligibility for criminal legal aid is a necessary prerequisite to the appointment of a solicitor by the courts. There are no financial guidelines to which the court can refer. The absence of financial guidelines allows the court the flexibility to determine applications for legal aid for each case on its own merits, having regard to the means of the individual accused, the seriousness of the charges which are preferred against him/her and the complexity and anticipated length of the case. With regard to assessment, the question arises as to whether criteria may be set down in the form of appropriate financial

78 Means Testing guidelines which the Court should have regard to in assessing the eligibility of an applicant for Criminal Legal Aid, i.e. what standard of indigency is required before legal aid may be granted?

The Tormey Report rejected the idea of eligibility ceilings or a means test. This would involve inflexibility not appropriate to a scheme of criminal legal aid. Furthermore, means testing could be expensive and there was no evidence that the introduction of this expensive machinery for criminal legal aid would be matched by any worthwhile benefit to the Exchequer. The Tormey Report recommended the retention of the present system which leaves discretion with the Courts.

The relationship between means and merit is important in the context of the flexibility of the means test. While the ‘‘interests of justice’’ test is a test of merit rather than means, the complexity of the case has a significant bearing on the ability of defendants to afford private representation and has a relevance to the means test also. In the US there has been much debate as to whether the standard should be ‘‘indigency’’ or ‘‘inability to retain a counsel’’. Many people accused of crimes are not indigent but are nonetheless without sufficient means to retain a counsel. Therefore, in assessing eligibility based on means, the court must look into the relationship between the cost, length and complexity of the case and the level of income of the accused person and take into account what a private practitioner would cost. The Committee considers that the application of strict financial guidelines is crude and inappropriate having regard to the above.

It would appear, therefore, that eligibility must be looked at on a case-by-case basis. Factors to be taken into account include: (a) income (b) assets and debts — assets (liquid and non-liquid) — ability to post bail — parental assets of minor defendants — the personal nature of the right to counsel suggests that the income of relatives or friends should not be taken into account in determining eligibility for legal aid.(cf judicial submission). (c) the seriousness of the charge (d) the complexity of the case (e) the length of the case (f) the cost of retaining private representation.

The Committee considered whether persons who are in receipt of income supports from a Scheme administered by the Department of Social, Community and Family Affairs should be entitled to legal aid. We examined the principal supports administered by that Department and would draw an important distinction between unemployment assistance and unemployment benefit. The latter is a weekly payment made by the Department of Social, Community and Family Affairs to insured people who are out of work. To qualify for unemployment benefit,

79 Criminal Legal Aid Review Committee — Final Report you must, inter alia, have sustained a substantial loss of employment which results in a loss of earnings. Unemployment assistance is a weekly payment made to unemployed people who do not qualify for unemployment benefit or who have used up their entitlement to that benefit. It is paid subject to a means test conducted by the Department of Social, Community and Family Affairs.

7.10.3 Should there be a formal means testing system? The Committee considers a core issue which arises in the context of our examination of means is whether it would be preferable to apply a formal means testing system to the Criminal Legal Aid Scheme or to continue with the present system, possibly with some refinements to strengthen same. By a formal system we mean a system which involves compilation of information, assessment of eligibility and verification of the information provided in the context of the application.

1. Context in which Criminal Legal Aid Scheme operates. In assessing this matter, it is important to have regard to the context in which the Criminal Legal Aid Scheme operates. While acknowledging the merit of the principle of applying means testing in respect of the provision of public income support services generally, the Committee is of the view that criminal legal aid is in the unique position of involving particular rights (due process) which are at the core of the rule of law. In the case of income supports generally, an individual’s rights are not infringed pending the completion of the means test process. Criminal legal aid is different in that the liberty of the accused may be at stake. In addition, the reasonable entitlement of the alleged victim of the offence and the witnesses, if any, to having the matter disposed of expeditiously is a factor which must be borne in mind.

The arguments in favour of means testing in civil legal aid are stronger both in terms of cost and principle. Civil legal aid is available on the basis that the civil legally aided plaintiff or defendant would pursue the case if they had sufficient means.

The Legal Aid Board made the following points in relation to the civil legal aid means testing system:

(i) it is quite complex and may require simplification.

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(ii) Although means testing proper occurs external to the Legal Aid Board (i.e. Department of Social, Community and Family Affairs), the completion of forms, etc. can be time consuming in Legal Aid Board offices. (iii) As with the criminal legal aid system the majority of clients of the civil legal aid system are clearly eligible (e.g. persons on social welfare account for 75%). (iv) Hidden criminal and other assets remain a major problem but it is extremely difficult to deny legal aid without hard evidence of the existence of such assets.

Certain features distinguish the two forms of legal aid: (i) immediacy — in light of the serious consequences of conviction, the constitutional right to personal liberty, representation etc., criminal cases must be dealt with quickly. Applications should be dealt with swiftly with the minimum time lag between application and granting of legal aid for representation. For this reason a complex pre- court ‘‘disposable income’’ type means test comparable to that used by the Legal Aid Board is unlikely to be suitable in the criminal legal aid context. (ii) State (Healy) v. Donoghue stressed strongly the importance of representation to an accused person and has ensured that judges are loathe to refuse legal aid as the likelihood of successful appeals based on denial of representation is considerable. (iii) Applications in court: — It is incumbent on the judge to ensure that fair procedures are followed in proceedings before the Court. It is likely that Judges would be reluctant to relinquish their role in deciding on legal aid applications. This applies both to the merits test and the means test. The distinguishing feature of criminal legal aid is that it is dealt with at the court stage and not by an independent Board. This increases the difficulties in setting up any kind of a means testing mechanism without causing delays in the courts system. (iv) Civil legal aid assists plaintiffs as well as defendants and this factor contributes to the necessity to test means.

2. Components of a formal means assessment system. None of the submissions suggested that a rigorous means-testing scheme such as that applied by the Legal Aid Board should be applied to the Criminal Legal Aid Scheme. In order to determine the merit of applying a formal means test system to the Criminal Legal Aid Scheme, the Committee considers it useful to describe the features of the components of formal means test systems. There are three elements to any means assessment system — (a) compilation of information, (b) assessment of eligibility and (c) verification. (a) Compilation of Information Collection of data is essential for a thorough means-testing system to ensure that there is a proper basis for denying the provision of legal representation and that decision- making on applications for legal aid is fair, consistent and accurate. However, delays in completion of the application forms may arise which would be unwelcome having regard to the immediacy required for the criminal courts. (b) Assessment of Eligibility Section 7.10.2 above discussed the issue of assessment of eligibility for criminal legal aid. The Committee considers that this is a matter which should be assessed by the

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authority which decides on an application for legal aid having regard to the particulars of each individual case. (c) The Method of Assessment or Verification For a system such as criminal legal aid, it would appear that verification has two major drawbacks — cost and delay.

The chief cost associated with means testing is the verification of the information supplied by the applicant and the information supplied by some accused persons may prove very difficult to verify. Following the establishment of the Scottish Legal Aid Board in 1987, the Board was given responsibility for awarding legal aid in summary cases as a mechanism to ensure that there was greater consistency in awarding legal aid. The courts were left with responsibility for awarding legal aid in solemn (indictable) cases and in summary cases where the accused has a previous conviction and could be facing a sentence of imprisonment or detention for the first time. Following the assumption of the function to decide on legal aid applications in respect of summary matters by the Scottish Legal Aid Board, the actual number of cases where legal aid was granted increased.

In 1986/87, the last year in which the grant of legal aid in summary procedure was made by the Scottish Courts, 60,057 certificates were granted. In 1990/91, 60,273 certificates were granted (58,833 by the Scottish Legal Aid Board and 1,440 by the Courts) and in 1994/95, 74,204 certificates were granted (71,401 and 2,803 respectively). In 1999/00, 66,290 certificates were granted (64,818 and 1,472 respectively). The experience of the Scottish Legal Aid Board in changing the system, from a judicial assessment of means to a system involving Legal Aid Board assessment of means for summary matters, demonstrates that the judiciary granted legal aid on a consistent basis and that changing the system of means assessment to one carried out by the Legal Aid Board could result in greater expense, and increase rather than reduce the number of legal aid certificates granted.

The question as to whether verification would utilise scarce resources and cause unnecessary delay in the court proceedings is considered very pertinent by the Committee. In this regard, it would appear that any attempt to verify all or a substantial number of applications would be costly. Similarly, pre-trial verification of claims would give rise to delay and possibly prejudice an accused person awaiting trial.

It is arguable whether a formal rigid system would ever be suited to the immediacy of criminal courts. What is less often addressed is whether the cost of the bureaucratic procedures to enforce these principles outweighs the savings that are made from rooting out possible abuse. The question then arises as to whether the principle, that public services are only provided to those who are entitled to them, is worth the cost that is required to enforce that principle and, consequently, whether there is a less expensive alternative to means testing everybody, e.g. sampling. The Committee makes this point because of lack of evidence of whether there is sufficient abuse in the legal aid system to justify the huge costs that would be associated with large-scale verification of claims. We are mindful in this regard of the potential cost of appeals from convictions without representation.

The absence of particular statistics inhibits the Committee from being able to determine accurately the level of possible abuse but anecdotal evidence suggests that it is low. A high proportion of individuals who appear in court charged with offences are in receipt of social

82 Means Testing welfare. The possible effect of the introduction of the ISSS on this cost-benefit analysis will be dealt with later.

7.10.4 Who should decide on eligibility for legal aid? The Committee has considered the various options which exist in relation to who should decide on an application for legal aid. Such options include: (a) the court (retain present system) (b) Court staff (or registrars etc.) (c) independent board or agency

One submission proposed that ‘‘applications for Legal Aid be dealt with prior to the appearance of the accused in Court. Clear cut cases could be decided by District Court Clerks or County Registrars. In the event of a refusal, the matter could go before the Judge by way of ‘‘appeal’’. These applications could be dealt with in Chambers prior to the appearance of the accused before the Court’’. The perceived advantage in this system is that at no stage will the accused appear before the Court without legal representation. Moreover, it might avoid the need to grant the applicant an adjournment for the purposes of getting legal aid.

The Tormey Report did not recommend that Court Officers have authority to grant certificates because of the judicial nature of the determination of the interests of justice.

The Scottish Legal Aid Board was established in 1987 and was given responsibility for awarding legal aid in summary cases as a mechanism to ensure that there was greater consistency in awarding legal aid. The courts were left with responsibility for awarding legal aid in solemn (indictable) cases and in summary cases where the accused has a previous conviction and could be facing a sentence of imprisonment or detention for the first time. It may be of interest that following the assumption of the function to decide on legal aid applications in respect of summary matters by the Scottish Legal Aid Board, the actual number of cases where legal aid was granted increased.

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7.10.5 Strengthening Procedures to reduce potential for abuse. Though we have concluded that the application of a universal means testing system is not suitable for the Criminal Legal Aid Scheme, we believe that certain improvements might be made.

The Committee believes that the Statement of Means form is an important element of the system. We first considered whether its completion should be compulsory or whether it should be left to the discretion of the court as is the position at present. In this regard, it is accepted by the Committee that the mandatory completion of the form would act as a deterrent to possible abuse and that it would be seen as an important facet of the system which cost over £17m (\21.59m) in 1999 from a financial control/audit perspective. However, we consider that compulsory completion of forms would give rise to an additional cost for the State and to delays in the processing of criminal business. We would, accordingly, consider it preferable that the status quo be maintained in relation to the completion of the Statement of Means form.

With regard to reducing the potential for abuse, it is necessary to examine to what extent and in what circumstances some system of verification of Statements of Means may be applied to the Criminal Legal Aid Scheme. Central questions which arise in this regard are — how many applications should be examined to ensure that the level of abuse of the system is at its lowest and the cost of verification is proportionate to that saving; — when should this verification take place and how should it be conducted?

It would appear reasonable to conclude, as the ‘Tormey’ Committee did, that applications should only be automatically verified where financial data is missing or when there are grounds to suspect it is inaccurate.

Many of the submissions have suggested that An Garda Siochana be given a role in investigating means pre-trial. We believe that such investigations pre-trial would cause delays in the court system and give rise to additional cost, etc. Another option is that applicants for legal aid would complete the Statement of Means pre-trial and, following the grant of legal aid, a random selection of Statements (say one in fifty) could be sent by the Court Office to the Department of Justice, Equality and Law Reform which would in turn transmit the Statements to the Department of Social, Community and Family Affairs for verification. That Department could then send details of the outcome of claims sent for verification to the Department of Justice, Equality and Law Reform to take whatever action it deemed appropriate.

Section 11 (1) of the 1962 Act provides that where a person, for the purpose of obtaining free legal aid under the Act, whether for himself or some other person, knowingly makes a false statement or false representation either verbally or in writing or knowingly conceals any material fact shall be guilty of an offence and be liable on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months or to both the fine and the imprisonment. In addition, section 11 (2) of the Act provides that upon conviction of the above offence, the court may order the person to pay to the Minister any sum paid under section 7 of this Act in respect of the free legal aid in relation to which the offence was committed. An action could never be brought against a person in this regard without the Statement of Means having been completed which was subsequently found to be

84 Means Testing false. Therefore the conditions and procedures under which the Scheme operates must allow for the the completion of the Statement of Means Form in certain circumstances. Unless the Statement of Means form is completed and a mechanism for verification is in operation along the lines set out above, it is extremely difficult to envisage how the proceedings could be taken as provided for in Sections 11 (1) and (2) of the Criminal Justice (Legal Aid) Act, 1962.

Recommendation 4 The Statement of Means form is an important part of the system and its completion should be left to the discretion of the court.

To strengthen procedures, we also recommend that Court Offices should send a random sample of Statements to the Department of Justice, Equality and Law Reform who would in turn transmit same to the Department of Justice, Social and Community Affairs for verification. The Committee regards it important to point out that the implementation of this recommendation would not delay the criminal process as the Court would be enabled to proceed with the case as happens currently. However, the Committee considers that verification process together with the appropriate penalties would reduce the potential for abuse. This would also allow for the identification of false applications and allow the Department of Justice, Equality and Law Reform to take whatever action deemed appropriate.

7.10.6 Should the Statement of Means Form be updated? The Committee regards it important to review and if necessary modernise the Statement of Means Form and considers that this is an area in which it can effect meaningful change.

In this regard, we examined the submissions received, the existing statement of means form, the Legal Aid Board form and those of Northern Ireland, Scotland and England & Wales with a view to determining the core data that should be sought from an applicant.

Judicial submissions were consistently of the view that a new, more comprehensive and modern form of application for legal aid in criminal cases is necessary.

The Committee considered such issues as: — whether looking at future income is appropriate, — whether there should be a specific requirement to declare overseas residence or assets abroad, and — whether disposable capital as well as income should be included.

The Committee also considered that the form should be framed in the context of it being an application for legal aid and devised in such a way as to elicit a reasonable amount of information as to a person’s means so as to place the court in the best possible position to assess their application for legal aid. To this end, persons in receipt of income support payments from the Department of Social, Community and Family Affairs should only be required to indicate that they are in receipt of same, and would not be required to complete the remainder of the form. The Committee recognises the possible benefits of compiling comprehensive information but considered that a simple form struck the right balance between required information and ease of completion.

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Recommendation 5 We strongly recommend that the Statement of Means Form provided for under the Scheme be updated as we have set out in the Appendix A of this Report. This would place the Court in a better position to conduct a meaningful assessment of the applicant’s means when determining an application for legal aid.

7.10.7 Contributions/partial legal aid and user fees. The Tormey Report rejected the idea of contributions — the applicant for criminal legal aid does not appear in court out of choice and ‘‘there is no question of his having an opportunity of considering whether his appearance is worthwhile having regard to the contribution payable’’. Delay would be caused and the costs of collecting contributions would probably outweigh the amounts collected.

Some submissions suggest that provision should be made in the Scheme for providing for some, but not all, of the costs of the defence.

The Committee doubts that partial payment procedures are an effective means of containing the cost of public defence representation, particularly when the administrative cost of collection is taken into account. Determination of what portion of the lawyers’ expenses or expert witness expenses (where appropriate) incurred by the defendant should be paid is seen as a difficult issue. The timing of such an order must also be considered. In situations where the Court requested that the Statement of Means be verified, it may be some time before the statement is verified, at which time lawyers and witnesses may have already been paid.

7.10.8 Withdrawal of legal aid. Under the civil legal aid scheme legal aid may be withdrawn (termination — liability for any costs afterward, or revocation — liability from the beginning) if, in particular, the person in receipt of legal advice has failed to comply with any condition imposed in connection with the granting of legal advice, is in arrears with contribution payments, is considered no longer eligible on financial grounds, is behaving unreasonably in connection with the matter in relation to which he or she is receiving advice or that it is unreasonable in the circumstances of the case that the person should continue to receive legal advice. This withdrawal of legal aid is notified

86 Means Testing in writing and a one month period given to show cause why it shouldn’t be proceeded with. There is no mechanism at present under the Criminal Legal Aid Scheme to withdraw legal aid.

There are a number of factors which warrant consideration in relation to the withdrawal of legal aid which arise in the criminal legal aid context. Firstly, the question arises as to whether the rights of the accused person, in particular his/her right to a fair trial may be prejudiced if s/he had to change lawyer during the course of proceedings. Secondly, it would appear harsh to punish the legal practitioner (in terms of unpaid work) for the default of his/her client. Thirdly, prejudice may result from any delay which arises in the context of the case.

Some submissions propose that there should be some provision for revocation of a certificate on the grounds of false information or an improvement in the financial circumstances of the accused.

The question also arises as to whether there should be an onus on a defence solicitor/counsel to disclose to the court changes in a client’s financial ability to afford representation, thereby allowing the Court to terminate assignment.

The Committee would have specific concerns that if the Court withdrew legal aid from a person who appeared before it, on the basis that that person had made a false Statement of Means or had otherwise misled the Court in some respect in regard to their application for legal aid, that this may compromise the credibility of the accused and prejudice the Judge. In view of this point and the foregoing points, the Committee does not believe that the Court should be empowered to withdraw legal aid. Where a person is convicted of knowingly making a false statement or false representation in relation to an application for free legal aid, the court may, in accordance with section 11(2) of the Criminal Justice (Legal Aid) Act, 1962, order the repayment of the legal fees involved to the Minister for Justice, Equality and Law Reform.

Recommendation 7 The Committee recommends that the Court should not have the power to revoke a legal aid certificate.

7.10.9 Appeal or Review of Refusal to Grant Legal Aid. Under the Civil Legal Aid Scheme a decision to refuse legal aid or to grant it with conditions may be initially reviewed by the individual or body which made the initial decision. If, after such a review, an applicant is still aggrieved he or she may appeal to ‘‘the Appeal Committee’’ consisting of members of the Board, none of whom made the initial decision. The Committee may affirm, reverse or otherwise alter any decision which is the subject of an appeal.

Under the Criminal Legal Aid Scheme, there is no specific provision for appeals against the refusal to issue a certificate. There is, however, a form of appeal at present in that an accused can apply to each court jurisdiction for a legal aid certificate for that court. This avenue is not available to those accused of a summary offence in the District Court. The chief rationale behind the introduction of an appeal system is that it would ensure uniformity in the system of granting legal aid.

The Tormey Report did not recommend the introduction of a provision for appeals against refusals of legal aid in all cases. The reasoning was based on the lack of need for such a system, the administrative difficulties (delays in commencement of trials) it would entail and the likelihood that it would be used frivolously.

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Recommendation 8

The Committee does not recommend the introduction of a provision for appeals against a refusal to grant a legal aid certificate.

7.10.10 The role of the Integrated Social Services System.

As mentioned in section 7.7, the Committee was requested to take account of contemporary and future developments which may be relevant to means testing in the Criminal Legal Aid context so as to ensure that there would be a more integrated approach to the administration, delivery, management and control of statutory income support services generally. On the basis of its research, the ISSS Committee recommended that data should only be captured and stored at one point, such that it would then be accessible to all Government Departments/Local Authorities who might have a requirement for it.

The principle recommendations of the (ISSS) Committee can be summarised as follows:

• Simplify means assessment across all providers for all schemes.

• Share means data by establishing a central means database.

• Customers should undergo one means test in any period of 12 months.

• Changes in means should trigger a review of all claims made by the applicant for all services.

Legislation has been introduced which allows for the implementation of a public service identifier which would be used beyond the Revenue/DSCFA area, which does not cover criminal legal aid.

The ISSS has been re-launched under the title REACH and aims to:

• promote takeup of the Personal Public Service Number as a common identifier,

• develop and promote the Public Service Card as the key to accessing public services,

• establish a shared datbase of individuals means information to be used by public service bodies in determining eligibility for means tested schemes, and

• foster initiatives across the public service to integrate services using the shared data platform and to act in an advisory capacity for agencies considering such initiatives.

The timescale for the delivery of these objectives is January 2000 to December 2002 at which time the Government will review the initiative.

Recommendation 9

The Committee recommends that the Department of Justice, Equality and Law Reform take the appropriate steps with the Department of Social, Community and Family Affairs so that the Court would have access to the Central Means Database which will be set up under the REACH initiative.

88 Means Testing

7.10.11 Penalty for providing false information on Statement of Means Form. Section 11 (1) of the Act provides that:— ‘‘a person who, for the purposes of obtaining free legal aid under this Act, whether for himself or some other person, knowingly makes a false statement or false representation either verbally or in writing or knowingly conceals any material fact shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months or to both the fine and the imprisonment’’.

The Committee considers that the penalties for making a false declaration should be increased so that a maximum fine of one thousand five hundred pounds (one thousand nine hundred euro) and/or imprisonment for up to twelve months be substituted.

Recommendation 10 The Committee recommends that the penalties for making a false declaration should be increased to a fine of up to one thousand five hundred pounds (one thousand nine hundred euro) and/or imprisonment for up to twelve months. It should be noted that Section 11 (2) of the Criminal Justice (Legal Aid) Act, 1962 provides that upon conviction of an offence, the court may order the repayment of legal fees to the Minister for Justice, Equality and Law Reform.

Chapter 8 Law Society claim for a departure from the ‘parity arrangement’ which governs the payment of fees to solicitors for Circuit and higher Court cases under the Scheme

8.1 Terms of Reference The terms of reference of the Committee included, inter alia, ‘‘a review of the level of fees paid to solicitors and barristers, including any claims for changes to the Scheme made by the Law Society or the Bar Council in relation to the fees payable under the Scheme’’.

8.2 Statutory position in relation to the payment of fees to solicitors for Circuit and higher Court cases under the Criminal Legal Aid Scheme The fees paid to counsel in the Circuit and higher Courts in respect of indictable offences are determined entirely by the level of fees which the Director of Public of Public Prosecutions pays to prosecution counsel through parity arrangements which are provided for by way of Regulations made under the Criminal Justice (Legal Aid) Act, 1962 — S.I. No. 234 of 1976.

The fees paid to solicitors in respect of their services in the higher Courts are related to the fees paid to defence counsel which are, in turn, based on the fees paid to prosecution counsel as determined by the Director of Public of Public Prosecutions — S.I. No. 33 of 1978.

8.3 The ‘Tormey’ Committee Report The 1978 Regulation, referred to above, which linked the fees paid to solicitors to those of defence counsel was introduced on foot of a recommendation made by the ‘Tormey’ Committee which considered the issue of the legal aid fees paid under the Criminal Legal Aid Scheme in its First Interim Report which was submitted to the Minister for Justice on 28 September 1977.

Paragraph 3.1.1 of the Report stated that

‘‘As we understand it, the following fees, expenses etc. have been sought by solicitors as a basis for settlement of the legal aid dispute:—

(1) in the higher courts, (i.e. Circuit Court upwards) parity with the fees payable to * leading counsel for the defence..’’. *(Leading counsel is the Senior Counsel if a Senior appears for the defence and is a Junior if one Junior or two Juniors appear).

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In paragraph 3.2.2 of the Report the Tormey Committee noted that ‘‘Up to 1975 the legal aid fees of solicitors bore a definite relationship to those of counsel (the fees provided for in the 1970 Regulations applied up to that time). In most cases the solicitor’s fee for the first day of hearing was the same as that payable to the Junior Counsel (there were some exceptions, for example murder cases in the Circuit, Central Criminal, or Court of Criminal Appeal, in which the solicitor’s fee for a one day hearing was on a par with that payable to leading counsel in the case). All refreshers payable to solicitors in the Circuit and higher Courts were lower than those payable to counsel’’.

The granting of parity to defence counsel in 1976 lead to a substantial increase in their fees. This inevitably resulted in solicitors seeking an increase in their fees once parity had been conceded to counsel — the granting of parity completely upset the relationship between the legal aid fees of solicitors and defence counsel.

In paragraph 3.2.3 the Tormey Committee considered that ‘‘The fees of solicitors should now be adjusted and that the appropriate guideline for the purpose of making this adjustment is restoration of the relationship between the pre-1975 legal aid fees of solicitors and counsel’’.

In paragraph 3.3.1 the Tormey Committee recommended that ‘‘The Schedule fees of solicitors in the higher courts should be related directly to the fees paid to counsel in each case, using the 1970 Schedule fees as the basis of the relationship’’.

Finally, paragraph 3.11.1 of the Report stated that ‘‘We understand, from our solicitor members, that solicitors will accept the recommendations put forward in this report as a basis for settlement of the legal aid dispute, provided they are implemented with effect from the date of signing of the Report’’.

The Report was accepted by the Minister and was implemented by the Criminal Justice (Legal Aid) (Amendment) Regulations, 1978 (S.I. No. 33 of 1978), which came into operation on 28 September 1977.

8.4 Law Society’s claim In its submission to the Committee in the above regard, the Law Society referred to the level of fees payable to solicitors for cases in the Circuit, Central and Special Criminal Courts and the Court of Criminal Appeal which are determined by the fee paid to defence Counsel (which in turn is dependent on the fee marked by the DPP in respect of prosecution Counsel). This system was introduced in 1978, since which, the Society contends, the functions of defence solicitor and counsel have diverged considerably.

The Law Society submission states that:— ‘‘the developing role of the solicitor in modern criminal litigation has been influenced by a number of factors, all of which require increasing degrees of knowledge, skill and time on behalf of the practitioner’’ ......

92 Law Society claim for a departure from the ‘parity arrangement’

‘‘in complex contentious cases, it will be appreciated that a great deal of work which cannot be adequately quantified here must be undertaken at the pre-trial stage. For example, advances in independent legal assessment in forensic evidence (especially DNA evidence) and the necessity to source, prepare briefs for, and secure the services of professionals outside the legal system to deal with such forensic evidence is but one issue which has created an additional workload for solicitors. Alibi evidence must also be collected, assessed, notified and briefed by defence solicitors. There is also a trend in recent legislation to increase the obligations of the accused, which in turn adds to the workload of defence solicitors. There are myriad other matters on the periphery of cases which the defence solicitor must deal with, which, strictly speaking do not form part of the legal services to the accused, nevertheless fall to the solicitor to devote time, effort and resources to (for example, dealing with family members, social workers etc.)’’ ...... ‘‘the increasing overheads incurred in running a solicitor’s practice results in a real imbalance in the comparative value of the fee paid to Counsel and that paid to solicitors. In addition, it is suggested that the present system is particularly iniquitous to solicitors in its operation as it denies the defence solicitor any fee for attendances at the Circuit, Central and Special Criminal Courts where the State is represented by the State solicitor in the absence of prosecuting Counsel’’ ...... ‘‘solicitors believe that the current system of fee determination is unfair and restrictive. They believe they should have the right to negotiate on their own behalf for services provided on foot of functions and obligations which differ so widely from the services provided by the Bar’’.

8.5 Analysis of Law Society claim In considering the claim made by the Law Society in this regard, the Committee was mindful that the relationship between the defence counsel and the defence solicitor had been recommended by the ‘Tormey’ Committee and that it had been sought and accepted by the Law Society. Moreover, having regard to the framework which exists under the parity Regulations where solicitors get paid fees based on a complex range of different relationships with both junior and senior counsel which differs by reference to court type and first and subsequent day hearings, it was clearly evident that the Law Society had actually negotiated its fees vis-a`-vis those of counsel.

The Law Society is now putting forward the view that there is no rationale for the ‘parity’ system and that it is an inappropriate way to determine solicitors fees. It considers that the system is flawed because solicitors have no input into it and the nature of their work is not properly reflected by it. The system, it is contended, is based on the time barristers spend in court and does not properly reflect the actual work done by solicitors e.g. investigative work, preparing the brief, etc. In addition, the system did not properly remunerate solicitors for hearings in the Special Criminal Court where neither prosecution counsel nor defence counsel are present but the defence solicitor is required to represent his/her client. Accordingly, solicitors feel they should have a mechanism for determining their own fees on a standalone basis. Solicitors are prepared to accept the application of standard fees to avoid bureaucracy which would be based on their actual input to cases.

The majority of the Committee considers that the submission made by the Law Society in this matter has merit for the following reasons:

93 Criminal Legal Aid Review Committee — Final Report

— the fees paid to solicitors under the Criminal Legal Aid Scheme should reflect their input to cases, — the work of solicitors has evolved since the inception of the parity system — for example, in relation to disclosure of evidence and the use of much more scientific/technical evidence — and that the fees payable to solicitors should be re- evaluated to reflect these changes, with provision made for exceptional cases, — the Law Society has no difficulty with the notion of a fixed payment system which is the anchor of the cost structure of the present system because of the cost predictability it provides.

Notwithstanding the importance of the points made above, the Committee considers that there is considerable merit in the present system and that this has been profiled in our first Report entitled ‘‘An Examination of the Feasibility of Introducing a Public Defender System for Ireland’’. In discussing the quality of representation available under the Scheme, we noted that ‘‘A valuable feature of the Scheme whereby the leading criminal lawyers and therefore, the same standard of representation, are equally available to both the prosecution and the defence, is the parity of fees arrangement which applies to all trials on indictment in the Circuit and higher Courts. This particular aspect of our Scheme was considered important by the authorities which we met on our study visits as they viewed it as strengthening the integrity of the Scheme as a number of counsel work for both the prosecution and the defence’’.

Furthermore, in recommending that the existing private practitioner system for providing criminal legal aid should be continued, we observed that ‘‘Having regard to the pertinent question of cost, which, it ought to be stated was the impetus for this investigation, we believe that the Scheme as it is currently structured and operates, is less expensive than any of the alternative models profiled and costed in this Report’’.

Moreover, in our examination of the merit of providing the criminal legal aid service by way of contracting, which is included in chapter 4 of this Report, we recommended that ‘‘On the basis of our investigation of the merit of providing criminal legal aid services by way of contracting, the Committee does not recommend the implementation of contracting ...... for providing criminal legal aid in Ireland’’.

The above recommendation was based on a number of factors including the fact that the Committee considered that the underlying fee structure of our Scheme makes it a predictable cost projection system.

One of the main strengths of the existing system is that it operates on a fixed fee basis and is non-bureaucratic as a result of same. The fixed relationship between solicitors and barristers is simple to operate and could, we believe, properly remunerate solicitors for their work if based on an appropriate relationship between the two groups of lawyers.

Notwithstanding the concern articulated by the DPP in his submission to us to the effect that the appropriateness of one party to proceedings effectively determining the fees payable to the

94 Law Society claim for a departure from the ‘parity arrangement’ lawyers for the other side is open to question, the Committee is satisfied that a significant merit of the present system is that DPP rates are agreed rates with the Bar Council and that increases paid by the DPP to prosecution counsel trigger comparable increases for solicitors on the defence side. Granting solicitors an independent fee system would, in all likelihood, lead to less certainty in relation to the cost of the Scheme and a changed financial basis for the Scheme going forward.

8.6 Conclusion The Committee accepts that the work performed by solicitors in criminal cases differs from that carried out by barristers and that solicitors should be paid fees for cases under the Criminal Legal Aid Scheme which reflect the work they do. The Committee also accepts that there are circumstances where solicitors are not paid a fee due to the non-appearance of prosecution and defence barristers and such situations should be also be addressed.

The Committee considers that, in the circumstances, it would be possible for the Department of Justice, Equality and Law Reform to renegotiate, with the Law Society, the terms of the existing relationship solicitors have with counsel within the parity framework while, at the same time, retaining the ‘parity’ framework. The Committee considers this approach to be the most suitable way of addressing the issue raised by the Law Society and that it strikes a reasonable balance between providing the Law Society with a mechanism for pursuing its legitimate entitlement to being paid fees which reflect the work it’s members carry out under the Scheme whilst at the same time allowing the State authorities to retain the framework governing the payment of fees under the Scheme, which has proved successful.

The Committee considers that the parity framework which operates under the Criminal Legal Aid Scheme, whereby solicitors are paid fees calculated by reference to those fees paid to counsel, enables solicitors to pursue any claim they might wish to make in respect of the payment of fees for cases under the Criminal Legal Aid Scheme and that this is the framework in which any such claims should be pursued.

Chapter 9

Entitlements of a Defendant under the Criminal Legal Aid Scheme

9.1 Criminal Legal Aid Scheme The Criminal Legal Aid Scheme is operated by solicitors and barristers in private practice who apply to go on a panel maintained by a County Registrar(s) (for solicitors) and the Minister for Justice, Equality and Law Reform (for barristers). The Court, when granting legal aid to a defendant, assigns a solicitor whose name is on the solicitors’ panel to the defendant taking account of the wishes of the defendant in this regard. The assigned solicitor will, in respect of an indictable case, instruct a member of the Bar whose name is on the barristers’ panel.

The Committee has acknowledged elsewhere in this Report that the Criminal Legal Aid Scheme has been the subject of little or no criticism in either the submissions made to it or from any other quarter. The Committee has also acknowledged that there is no evidence to suggest that the quality of representation provided under our Scheme is anything other than satisfactory.

It appears to the Committee that one of the most important reasons for the low level of dissatisfaction expressed in relation to the Scheme is directly linked to the fact that clients have access to the lawyer of their choice.

In order to ensure that clients of the Criminal Legal Aid service are aware of the broad range of their ‘entitlements’, under the Scheme, the Committee would like to see such entitlements published. The Committee is conscious that there is a difference between providing the recipient of a free legal aid certificate with a leaflet setting out how the Scheme works in general, on the one hand, for example, the fact that the grant of legal aid is a matter for the court and the procedures involved in applying for legal aid, etc., and the setting down of quality standards for the representation which should be provided to a legally aided person which is a matter for the representative bodies, on the other.

9.2 Tormey Committee The Committee notes the ‘Tormey’ Report recommendation that persons who are detained by the Gardai or in prison but who have not as yet appeared in Court, should be given literature about legal aid which would meet the following criteria

(a) explain in clear and simple terms that persons of insufficient means who are charged with criminal offences may be entitled to the services of a solicitor and, in certain circumstances, the services of counsel also, and that this is what is meant by the granting of legal aid.

(b) explain that legal services under the Scheme are provided free of charge.

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(d) state that anybody who knowingly makes a false or misleading statement will be guilty of an offence and will be liable to be penalised by way of fine or imprisonment or both.

9.3 Recommendation The Committee recommends that the Department of Justice, Equality and Law Reform, following consultation with the Law Society and the Bar Council, publish an information leaflet setting out the entitlements of a legally aided person under the Criminal Legal Aid Scheme on the basis of the criteria set out by the ‘Tormey’ Committee as indicated above.

98 APPENDICES

Appendix A

APPLICATION FOR FREE CRIMINAL LEGAL AID (Statement of Means of an applicant for free legal aid under the Criminal Justice (Legal Aid) Act, 1962 as amended.) 1. Application I hereby apply for free criminal legal aid under the Criminal Justice (Legal Aid) Act, 1962 as amended. 2. Declaration I hereby declare that to the best of my knowledge and belief that the information provided in this application is an accurate and complete statement of income. I am aware that if I knowingly make a statement which is false or knowingly withhold information in this application that I may be prosecuted which could lead to conviction, the penalty of which is a fine not exceeding £1,500 (\1,900) pounds or imprisonment for up to 12 months, or both. 3. Consent I hereby give my consent to the court taking whatever steps as it may consider necessary to verify the accuracy of information contained within this application. I understand that the court may ask me to clarify some information, provide further information or proof in support of this application. I understand that if my financial position changes in any way after I have submitted this application, I must inform the court.

Signed —————————————————————— Date ——————————————————

Please use BLOCK letters in black ink when completing this form below.

A — Personal Details 1. Name ————————————————————— 2. Date of Birth ————/———/19——. 3. Permanent address ——————————————————————————————————————— 4. If staying at temporary accommodation, please state this address

5. Marital Status Single Single and living together Widowed (tick one only) Married Separated Divorced 6. If you are under 17 years, are your parents or guardian(s) able and willing to provide legal aid for you or to assist you in providing yourself with legal aid. Yes ——— No ——— If yes, please provide details. ———————————————————————————————————

B — Financial Details 7. RSI No. ————————— Yes No 8. Are you in receipt of (i) Unemployment Assistance ———— ———— (please tick) (ii) Supplementary Welfare Allowance ———— ———— (iii) Family Income Support ———— ———— (iv) A medical card ———— ————

If you are receiving any other assistance (not Unemployment Benefit), please specify it below —————— ———————————————————————————————————————————————— ———————————————————————————————————————————————— Important If you are in receipt of an income support of the kind referred to in question 8, you need not complete the remaining questions on the form, but you must sign the declaration above. All other persons are required to complete the form in full (please see reverse of form).

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Questions 9 to 21 (Need only be completed by persons in receipt of Unemployment Benefit or who are in Employment)

Yes No \ 9. Are you in receipt of Unemployment Benefit ——— ———. If yes, what is weekly benefit 10. Yes No Weekly Income \ Are you Employed full-time ——— ——— \ Are you Self Employed ——— ——— \ Are you Employed part-time ——— ———

11. Occupation ———————————————————— 12. If employed, state employer’s name and address ——————————————————————————

————————————————————————————————————————————————

13. Any Other Income (Please give details) ——————————————————————————————

————————————————————————————————————————————————

C — Property/Car/Savings/Assets (please give details of your property/car/savings/assets/shares/investments)

14. Do you own the house or property which you treat as your main dwelling? Yes, sole owner ——— Yes, joint owner ——— No ——— If yes, please provide the following information: (i) What is the market value of your main dwelling? \ (ii) What is the remaining mortgage on your main dwelling? \

15. Do you own any other house(s) or property? Yes, sole owner ——— Yes, joint owner ——— No ——— If yes, please provide the following information: (i) What is the market value of the house(s)/property? \ (ii) What is the remaining mortgage on the house(s)/property? \ (iii) Enter weekly amounts of money from sub-letting/renting property \

16. Do you own a car? \ Yes ——— No ——— If yes, state Type ———————— and Value ——— 17. Please give details of your savings/assets/shares/investments \ ————————————————————————————————————————————————

————————————————————————————————————————————————

D — Allowances and Deductions

18. Enter the number of dependants who are living with you. Spouse/Partner ——— Children 18 and over ——— Children under 18 ——— Other — Parent/Relative ——— 19. If you pay maintenance to any dependant who does NOT live with you, please give details of the amounts you pay. Name(s) of Your relationship Age(s) of Amount Dependant(s) to the dependant(s) dependant(s) per week \

20. Give details of other expenses which you think the court should know about.

————————————————————————————————————————————————

21. Have you directly or indirectly transferred any resources to another person since you became aware of these proceedings? ————————

102 Appendix B

Submissions

Received by the Criminal Legal Aid Review Committee

Office of the Director of Public Prosecutions His Honour Judge Kevin Haugh, Judge of the Circuit Court Mr. Jim Woods, District Court Clerk, Limerick His Honour Judge Kieran O’Connor, Judge of the Circuit Court The Hon. Mr. Justice Frederick Morris, President of the High Court The Law Society of Ireland Mr. David Goldberg, B.L. Mr. M. H. Walsh, Solicitor Ms. Sabha Green, Free Legal Advice Centre, Dublin His Honour Judge Peter A. Smithwick, President of the District Court Mr. Timothy Crowley, Judge of the District Court Mr. Niall Browne, Solicitor Mr. Anthony Murphy, Solicitor D. H. Sheridan & Co. Solicitors An Garda Siocha´na The Bar Council Mr. Noel Brennan, District Court Clerk, Bray Mr. Michael Finucane, Solicitor Office of the Attorney General Office of the Chief State Solicitor Mr. Dermot Shanley J.J. Ivers Mr. Patrick Deely, District Court Clerk, Galway Ms. Michele O’Boyle, Chairman, Victim Support, Sligo Branch Association Of District Court Judges

103 Wt. P67135. 300. 6/02. Cahill. (M69790). G.Spl.