New criminal aid scheme ‘unfair’ and ‘illogical’ – High Court

Provisions of the new criminal legal aid payment scheme are “grossly unfair” and the justice minister has exceeded his power, a High Court has ruled.

In her judgment, Ms Justice Mary Rose Gearty said that new regulations “create a demonstrably illogical process” and fails to create a rational system.

The High Court gave its decision on Tuesday on the legality of the new criminal legal aid system for the District Courts.

It upheld submissions made by Dublin criminal defence solicitor John Quinn, who sought an order to quash the statutory instrument.

Earlier this year, Minister for Justice Jim O’Callaghan introduced a 520 euro flat fee for criminal legal aid cases, which is designed to be equivalent to five appearances, which was the average under the old scheme plus an 8% increase in fees given to all criminal lawyers.

Under the old system, solicitors were given 240 euro for a first appearance with a legal aid client and 60 euro thereafter.

It led to a withdrawal of services by criminal defence solicitors, who have rejected the new flat fee model.

Justice Gearty said that as there is no discretion for certificates to reflect a multiplicity of very complex cases, or to reflect the fact that in multiple certificates the alleged conduct may be the same, the regulation is “ultra vires”.

The judge also said that the provision fails to achieve the objective of a “rational” payment scheme under the legislation, but also fails to achieve the purported aim of the 2026 Regulations, which is to avoid the granting of multiple certificates to one accused person.

A regulation that requires that certification is dictated by the date on which cases are listed removes flexibility in respect of certification and creates the potential for abuse, the judgment added.

Justice Gearty said that the provisions are “grossly unfair”.

“Due to the requirement that qualifying cases be listed at the commencement of proceedings, the Regulations also create a demonstrably illogical process, which requires certification based on the time of listing alone,” the judgment said.

“This fails to create a rational system under the Act and fails to achieve the Respondent’s stated objective of curtailing an abuse of the previous system in respect of multiple certificates.

“This criterion has no apparent logical basis, it was not justified by the Respondent, and the provisions thus exceed his power under the parent legislation.

“The Applicant is not entitled to earn a livelihood by guaranteed access to a particular type of work, so his constitutional right in that regard is not directly in issue.

“The Applicant relies on examples that are not speculative and has established that the impugned regulations can be anticipated to have an adverse impact on him.”

The judge further stated that one of the provisions allows a solicitor to be paid twice in respect of charges against a single accused person, arising out of the same events.

However, if an accused is charged with numerous different offences on the same court date, the solicitor will receive only one certificate and hence, one payment.

The judge will make final orders once submissions have been made on other aspects of the application.

In a statement, a spokeswoman for the Justice Minister said he is considering the judgment.

“The court has requested further submissions from the parties in advance of any final orders being made,” the statement added.

“It should be noted that aspects of the new scheme have already been adjusted or are the focus of ongoing discussions with the Law Society of Ireland.”