New legal aid scheme could mean ‘sea change’ for criminal justice system

Minister for Justice Jim O’Callaghan is claiming a victory in securing a new criminal legal aid payment model for the district courts while solicitors feel vindicated by achieving enhanced fees after resisting elements of that.

Whether or not the new scheme will achieve its purpose – a more efficient criminal justice system – remains to be seen, but early indicators suggest a speedier disposal of cases and fewer adjournments under it.

Courts Service sources suggest the scheme may effect “a sea change” by reducing adjournments, with benefits for the entire system, including gardaí and the prison service.

The scheme will also reduce the burden of administration, a senior source said.

Because there will be no more multiple legal aid certificates, solicitors are likely to be pushing to have cases heard more quickly, putting pressure on the State, the DPP and gardaí “to get their act together”, the source added. “Delay sometimes suited everyone.”

The scheme, and promised appointment of additional judges, should help tackle the backlogs of cases across the criminal courts, worsened by solicitors withdrawing their services over the past four months.

The new scheme of one flat €520 fee per accused (based on an average five court appearances) replaced the previous one of €240 for the first appearance and €60 for each subsequent appearance.

Under this week’s agreement, solicitors are eligible for an enhanced €780 fee for elongated domestic violence and children’s cases, and remands in custody.

They are also eligible for €780 for two separate and distinct cases brought on the same day against one accused, and €1,040 for three or more.

The new scheme was devised following the department’s internal review of Courts Service data on about 350,000 District Court cases in 2022 and 2023.

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Triggered by a rise in criminal legal aid spending from €19 million in 2015 to a projected €41 million last year, the review found criminal legal aid cases took longer to complete.

The review also noted “misuse” of a regulation concerning multiple legal aid certificates, or invoices.

It cited some examples, including a €14,000 bill from a law firm for a court appearance relating to 63 certificates, divided between a number of solicitors, for an individual facing 63 brothel-keeping charges.

Solicitors complained the review was based on partial data and the new scheme failed to take into account their work in complex and elongated cases.

When the Minister, Jim O’Callaghan, pressed ahead, and the scheme became operational on July 1st, solicitors began a widespread withdrawal of services.

Unhappy with the lack of “meaningful” engagement, and the Minister’s insistence that he was “not for turning”, many solicitors, particularly in Dublin, persisted in the withdrawal up to this week. Financial pressures contributed to others resuming work.

The escalation of the withdrawal in October to include custody cases led to strong criticism of solicitors by senior judges. Pressure also mounted on O’Callaghan, whose claim on October 20th that rape cases were “deliberately” affected by the escalation inflamed the situation.

Amid increasing pressure, the Minister and the Law Society agreed in late October to embark on “focused” engagement.

While talks continued, the High Court delivered a scathing judgment on November 3rd upholding a challenge by solicitor John Quinn to key elements of the new scheme.

The talks and the judgment buoyed solicitors and many resumed work in anticipation of the deal that was finalised on Tuesday, leading to a full return to work on Wednesday.

Many are left scratching their heads over why the “meaningful” engagement that led to a deal after five days was not embarked on five months ago, avoiding significant disruption of the courts.

Loose ends remain. The High Court will on November 24th consider what final orders to make arising from its judgment and two separate challenges on behalf of legal aid defendants to aspects of the scheme are pending.

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