Three strikes and you’re out: A look at the proposed changes to the legal aid system

Reducing access to criminal legal aid could give criminals grounds for appeal.

“€35,000 in legal aid but no compensation for Corcoran family” the Independent proclaimed in the aftermath of the Tipperary raid case last October.

The case involved seven Dublin men driving to Tipperary, breaking into the Corcoran family home, and brutally beating father Mark Corcoran in front of his children. The ring leader, Dean Byrne, had 120 previous convictions.

The case came to be the symbol of a new type of crime; gangs using motorways to rob country homes and farms. Many were also shocked by the cruelty of the robbers in this case. The fact that the men were out of prison to begin with, having over 315 previous convictions between them, only added to the outrage.

The Corcoran family lost everything. Under the weight of medical expenses and post-traumatic stress disorder, the family were forced to close their once successful business.

Meanwhile, the criminals responsible were afforded free legal aid, including two barristers and a solicitor.

Victim’s rights NGO ‘Support After Crime’ criticised this award of legal aid and called on the Government to put a cap on the amount of legal aid that can be given.

More recently, TDs expressed outrage that their colleague Paul Murphy was able to qualify for free legal aid on a €87,000 a year salary. Fine Gael TD Alan Farrell described it as a “crime against the taxpayer”.

Deputy Murphy is being charged with false imprisonment after Joan Burton was trapped in her car for two hours during protests in Jobstown.

As a result, substantial questions have been raised about the criminal legal aid system. Are public funds being abused by criminals who can apply for legal representation for free, something most ordinary people could never dream of? Is our system too permissive?

How Criminal Legal Aid Works

When we talk about free legal aid, we’re talking specifically of criminal legal aid. We also have a civil legal aid system, but it is not free, requiring a minimum upfront payment of €130 for legal representation.

The courts are responsible for granting legal aid. The person must show that they cannot afford to pay for legal representation themselves. The judge will consider any evidence from prosecutors, including the Criminal Assets Bureau, when deciding if the applicant has the means to pay for their own lawyers.

The judge has discretion in all cases, and there are no specific financial eligibility guidelines. However, the court must be satisfied that because of the ‘gravity of the charge’ or ‘exceptional circumstances’ that it’s essential in the interests of justice to grant legal aid, including danger to your liberty or livelihood.

When a person is given criminal legal aid, they can choose from a panel of lawyers. Most criminal lawyers are on that panel.

Criminal legal aid is completely free and applies at any court level. It allows for up to two counsel, depending on the circumstances of the case, as well as a solicitor. There is also the Garda Legal Advice Scheme for people who are in custody, although this is means tested.

The Irish Courts have established that the right to a fair trial under the Constitution includes the right to a lawyer.

Trying to cut costs

No one would argue that we currently have a perfect system. Spending on criminal legal aid is demand driven and despite efforts made to rein in costs, such as a 10% cut to lawyers’ fees under the legal aid scheme, we still spent nearly €50m providing criminal legal aid in 2014 (down from over €60m).

One way of saving money would be to continue with the previous Government’s plan to put criminal legal aid under the Legal Aid Board.

The draft Programme for Government leaked in May stated:

We will transfer responsibility for Criminal Legal Aid to the Legal Aid Board who will have new powers to compel criminals to pay a contribution. We will also introduce a more rigorous and objective means testing process for such applications, as well as increasing the sanction for false declarations and improving prosecution in cases of abuse.

They don’t clarify if this just means that the Legal Aid Board will provide the lawyers instead of the current panel system, or if the Legal Aid Board will now be responsible for deciding who receives legal aid instead of judges.

It’s also unclear how many criminal lawyers will want to move from working on a per case basis to a yearly salary under the Legal Aid Board. They would undoubtedly stand to lose money if they did.

The cost of justice

Alternatively, we need to find a way to reduce legal fees throughout the system. One of the problems is that law firms and barristers do not advertise their fees so it is hard to find an average hourly rate. They can vary from €100 to well over €1,000 for every hour worked on the case, depending on whether the law firm is big or small, or how senior the barrister or solicitor is.

FLAC Chairperson and Senior Counsel Peter Ward says:

Certainly if you’re talking about getting junior counsel and senior counsel and a solicitor in a High Court action then you’re talking about thousands of euro per day. So you could easily a run up a bill over a couple of days into the tens of thousands to run that case.

This does not include the pre-trial work done in advance of the case.

Given this, it is not surprising that even someone on a TD’s salary might not be able to afford their legal costs.

Victims’ rights

One of the main complaints about our current criminal legal aid system is that it favours the accused over the victim.

Currently there are two ways to get compensation; through a court order requiring the offender to pay the victim, or through the Scheme of Compensation for Personal Injuries Criminally Inflicted. The Scheme is not comprehensive as it does not include punitive damages for the pain of suffering caused, and it doesn’t cover stolen or damaged property except for medically necessary items.

There is a need to improve the system so that victims aren’t the ones who are shortchanged by the system.

The Victims’ Rights Alliance have suggested introducing a ‘victim’s surcharge’ to be paid by convicted offenders, as is done in Canada.

Limiting criminal legal aid

Some suggest that people accessing criminal legal aid pay a contribution either up front or after the court case, to be paid to the State.. Former Fine Gael TD, Michelle Mulherin, argued: “I do not think it is excessive to deduct between €10 and €50 from their social welfare over a period of time… It might mean they have to do without a packet of cigarettes, or stay out of the bookies, for a week.”

Ward argues:

If it is the case that you’re dealing with someone who can be shown to have access to very significant resources, that person can be refused legal aid by that Court. That’s more an operational matter really… But you know in reality the vast majority of the defendants in the criminal courts will not be in a position to make a contribution. That’s just going to be the reality.

Others have suggested more radical changes. Former Fine Gael TD Tom Sheahan consistently called for a “three strikes and you are out” policy, where a defendant could not qualify for legal aid more than three times.

Fundamental rights

Cutting legal aid could save some money in the short term, but we would end up costing far more in appeals, retrials and possible false imprisonment cases if they turn out to be innocent.

For example, in 2011, David Joyce managed to overturn his sentence because, although the crime he was accused of was small, the Supreme Court held that the damage to his reputation from being convicted of a crime meant that legal aid should not have been refused. Being refused legal aid is a fairly common grounds for appealing a conviction.

The idea that you would not provide someone with a lawyer because they had committed three previous offences is in breach of one of our most fundamental legal principles: innocent until proven guilty.

Ward argues:

Debates at the moment tend just to focus on an immediate assumption of guilt of the individual who has been charged, the immediate assumption they can afford to pay for the lawyers and the system in fact is just being abused. Whereas, that’s not the starting point. The starting point is why do you have it in the first place? How do you protect in terms of its fundamentals?

It would be illegal to introduce such a law under our Constitution and the European Convention on Human Rights.

Justice must be seen to be done for us to believe in the fairness of our courts. That’s why we provide safeguards like legal aid to ensure that at the end of the day, a defendant cannot say the case was rigged, that they had a shoddy defence. We provide them with whatever lawyer they want, and when they are convicted, it’s because we proved beyond reasonable doubt that they were guilty.

When we lock people up it should be because they’ve been found guilty after a fair and open process, and not because they couldn’t afford to organise a competent defence.

This is the first in a four-part series on legal aid in Ireland.


Author: Liz O'Malley

Freelance journalist, sometime law student, political junkie, pasta addict.

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