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Final Report Criminal Legal Aid Review Committee Final Report February, 2002 BAILE A´ THA CLIATH ARNA FHOILSIU´ AG OIFIG AN tSOLA´ THAIR Le ceannach dı´reach o´ n OIFIG DHI´OLTA FOILSEACHA´ N RIALTAIS, TEACH SUN ALLIANCE, SRA´ ID THEACH LAIGHEAN, BAILE A´ THA CLIATH 2, no´ trı´d an bpost o´ FOILSEACHA´ IN RIALTAIS, AN RANNO´ G POST-TRA´ CHTA, 51 FAICHE STIABHNA, BAILE A´ THA CLIATH 2, (Teil: 01 - 6476834/35/36/37; Fax: 01 - 6476843) no´ trı´ aon dı´olto´ ir leabhar. —————— DUBLIN PUBLISHED BY THE STATIONERY OFFICE To be purchased directly from the GOVERNMENT PUBLICATIONS SALE OFFICE, SUN ALLIANCE HOUSE, MOLESWORTH STREET, DUBLIN 2, or by mail order from GOVERNMENT PUBLICATIONS, POSTAL TRADE SECTION, 51 ST. STEPHEN’S GREEN, DUBLIN 2, (Tel: 01 - 6476834/35/36/37; Fax: 01 - 6476843) or through any bookseller. —————— \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 3 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 5 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
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