Joint Committee on Justice debate -
Tuesday, 3 Oct 2023

General Scheme of the Irish Prison Service Bill and of the Criminal Justice (Legal Aid) Bill: Discussion

An Leas-Chathaoirleach

Apologies have been received from Deputy Ward and Senator McDowell. I remind members to turn off their mobile phones in order that they do not interfere with the sound system or make it difficult for the parliamentary reporters to report the meeting.

The first item on our agenda is pre-legislative scrutiny of the general scheme of the Irish Prison Service Bill. The purpose of the first part of the meeting is to engage with stakeholders as part of the committee’s scrutiny on the general scheme of the Bill. The second part of the meeting will be an engagement with stakeholders on the second item, namely, scrutiny of the general scheme of the criminal justice (legal aid) Bill.

I am chairing the meeting in the absence of the Cathaoirleach. Before I introduce the stakeholders present, I wish to declare an interest as I am a member of the Irish Penal Reform Trust and have been engaged on a professional basis on behalf of the Irish Prison Service. I do not have a pecuniary interest in either but I wish to make that known.

I welcome the witnesses: Ms Saoirse Brady, executive director of the Irish Penal Reform Trust, IPRT; Dr. Helen Kehoe, legal and public affairs manager of the IPRT; Mr. Karl Dalton, general secretary of the Prison Officers Association, POA; and Mr. Gabriel Keaveney of the POA. From the Department of Justice we are joined by Mr. Paul O’Farrell, principal officer in criminal legislation, and Mr. Gerard Teehan, administrative officer. They are all very welcome. I thank them for taking the time to join us.

Before I invite the witnesses to make their opening statements, I wish to advise them of the following with regard to parliamentary privilege. Witnesses and members are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

I invite each of the organisations, in turn, to make an opening statement, starting with Ms Brady of the IPRT.

Ms Saoirse Brady

I thank the committee for the invitation to speak on this important proposed legislation. Established in 1994, the IPRT is Ireland’s principal independent NGO working for systemic penal reform and change. Our vision is a just, humane Ireland where prison is used as a last resort. We urge the committee to give the general scheme of the Bill its full attention to ensure the final legislation is fit for purpose and the Irish Prison Service, IPS, maintains the highest standards in governance and accountability.

Accountability and oversight have a different significance in the closed world of prisons, encompassing much more than the prevention of human rights violations behind closed doors. They involve ensuring the prison system meets its mission to provide safe and secure custody, dignity of care and rehabilitation to prisoners and does everything it can to minimise the harmful effects of imprisonment on people so held.

We welcome the long overdue publication of the general scheme but it must be prioritised and accompanied by a firm commitment to adequate investment in the proposed governance and audit structures of the IPS or there is an inherent risk the new body will become a firefighting operation. The statutory appointment of the director general as the Accounting Officer for the IPS, at head 34, is welcome. However, we ask the committee to consider whether the proposed limitations on expressing opinions to Oireachtas committees other than the Committee of Public Accounts is appropriate or necessary. While it is welcome that the heads of Bill set out the composition and membership of the IPS board, we call into question the appointment by the Minister for Justice and would instead recommend that the legislation is clear that appointments, in whole or in part, are to be made pursuant to a public competition managed by the Public Appointments Service, PAS.

The IPRT is concerned that the statutory power of the Minister, as set out in head 52, to redact in part or in full the publication of the annual report of the IPS seems particularly stringent. The IPRT suggests that the committee consider the need for such a statutory provision, especially given the importance of protecting the independence of the IPS and the fact the same does not apply to other statutory bodies.

The Office of the Inspector of Prisons has recently increased its activity and output and this is welcome. Creating an effective and accountable system, however, requires not only robust and independent oversight but also the shaping of a prison culture that respects complaints, acts swiftly to address any wrongdoings, and harnesses data and information to drive progress. Accountability is not a singular entity, one office or one practice.

The notable omission of prison culture and its importance cannot be overstated. It encompasses working relationships between staff and management and between staff and prisoners. Poor standards or poor service provision or treatment in day-to-day life can create a pervasive culture whereby people in prison tolerate poor conditions rather than challenging them to realise their rights. This is particularly relevant in light of the ongoing review of the 2007 prison rules by the Department of Justice as there is currently no adequate complaints system that offers an effective remedy for people in prison. We hope the review will be completed shortly. A robust and effective complaints system must have in place conditions that support it, including the promotion of a positive culture in order that staff and prisoners can have confidence in the system to support better management overall.

Our written submission goes into more detail on several key heads of the general scheme of the Bill. My colleague, Ms Kehoe, and I are happy to answer any questions on them.

Mr. Karl Dalton

On behalf of the Prison Officers Association, I thank the committee for the opportunity to address it on the general scheme of the Bill. I am general secretary of the POA and I am accompanied by my colleague, Mr. Keaveney, deputy general secretary of the POA.

Due to the nature and composition of the proposed Bill, we obtained detailed legal advice on its contents. Our submission is based primarily on those advices. As outlined in our original cover note, our submission was presented subject to us seeking a meeting with the Department of Justice to clarify several issues, including the matter of the status of our members as civil servants and the impact of the general scheme of the Bill on their status. A meeting has yet to be confirmed but we are in agreement to meet on that matter. We respectfully request that the committee allow us to submit any additional issues should the need arise following that engagement. In our written submission, we raised several concerns relevant to the assurances regarding our members’ Civil Service status going forward. The IPS has outlined via the Department of Justice that the scheme will have no effect on the Civil Service status or terms and conditions of staff other than that they will become civil servants of the Government rather than officers of the Minister. The main issue is the impact of becoming civil servants of the Government rather than civil servants of the Minister. Clarity is required as to whether this change can impact on a range of existing collective agreements for our members and on the methodology for reaching such agreements going forward.

There are two main issues arising under the section dealing with the delegation of functions to the director general, including the power to dismiss. In the first instance, the proposed Bill gives the director general wide-ranging powers relating to the appointment of staff and fixing the terms and conditions of employment of such staff, their grades and the numbers of staff in each grade. This is a significant move away from the process that is currently in place and presents grave concerns for our membership. During the financial emergency, the parties entered an agreement which resulted in significant staff reductions and the introduction of massive workplace reform. Part of this process was to examine staff-to-management ratios. In recent times, the IPS has disproportionately increased management grades compared with front-line officer grades. In particular, there has been a 35% increase in HQ staff.

Second, in the wider Civil Service the power to dismiss rests with the Secretary General of the relevant Department. At present, there is opposition from the staff side to any proposal to further dilute this power. As such, we require clarification regarding the specific functions the director general can delegate to subordinate members of staff. Will the director general have the ability to delegate the power to suspend or dismiss staff?

There are other matters that may impact on our members. The main issue for our members is to obtain clarity regarding their current status compared with the new status. For example, what will be the impact on our members of the code of ethics being placed on a statutory basis? The Prison Service currently has a code of ethics for staff but this provision will put the code on a statutory basis. What will that mean for our members?

An Leas-Chathaoirleach

I thank Mr. Dalton for being brief.

Senator Lynn Ruane

I thank the witnesses for their contributions. I have questions under several headings. Are the representatives of the Department of Justice just here to observe?

An Leas-Chathaoirleach

I presume the representatives of the Department do not wish to say anything at this stage. They are welcome to come in at the end if they have questions or observations.

Senator Lynn Ruane

Okay. I have questions for the IPRT and maybe one for the POA.

The first one relates to head 7, and I imagine this is for the IPRT and the Department to take note of. Head 7(1)(e), relating to education and training, says "insofar as the length of time in prison permits". In terms of rehabilitation and access to education that is quite problematic because it means that a scenario could be put forward where we could say that the sentence did not permit access to education or a particular course. That could be because the prisoner was expected to be transferred or released at a certain time. This provision should not actually be in the draft and all accommodation should be made to enable inmates to access education.

Regarding head 10, the staff of the service, which the union might want to comment on, one of my questions is in relation to mobility and the importance of staff being able to move around and having the status of a civil servant. My concern, and I am wondering if it is a concern of the witnesses, is that it says "shall be a civil servant in the Civil Service of the Government". This is problematic. Other legislation dealing with the Parole Board and the Inspector of Prisons says "of the State" rather than "of the Government". It should not be "of the Government" to give it real independence in terms of separating some of those powers.

In head 12 there is no mention of the director general's role in research. It would be beneficial to have something in there regarding research and development.

Head 22 relates to functions of the board but it does not mention any sort of governance oversight or finance management oversight. Should there be something in there so that the board actually has some power and oversight in relation to governance? It does mention governance later on when it comes to an audit committee but it does not actually have it in the functions of the board.

On membership of the board, I am just wondering about the make-up of the board. It says in the heads that if somebody gains a conviction while on the board, they will no longer be able to serve on the board, but it does not actually say anything about people with previous convictions being able to serve on the board. We know there are issues with the charities regulator's legislation. It seems this could be an opportunity for us to ensure people with lived experience could function on the board. I would appreciate some comment on that.

Head 34 is quite concerning regarding the accountability of the director general. It says the director general cannot really form any sort of opinion on or give criticism of the Minister or the Government. It is like giving this illusion of independence but actually really restricting that independence and the ability of the director general to be able to act. Within the prison system you need to be able to challenge policy. If we look at mandatory sentencing or anything else that may come up in terms of policy, you would imagine the director general and the union members and everybody else would have a very particular view that sometimes may need to be demonstrated to Government or to certain Ministers of the day who may be taking a different policy that does not actually serve either the prison population or its staff.

I have one more point on transfers. I do not think it says if the director general will take responsibility for transfers to open centres. Does the power still lie with the Minister in that regard?

Ms Saoirse Brady

My colleague will come in if there is anything else to add. On the education piece, we often hear that people on short-term sentences cannot really engage with education. When we look at the prison population and how many of them are in for 12 months or less, that is quite concerning. We need to find a way to ensure they are engaged. If such people were serving their sentence in the community, that would probably be a better use of resources and we would not really have to worry about this issue. However, that is not necessarily being dealt with in this legislation

Regarding head 12, the director general having research and development within his or her functions is something that could be looked at.

Regarding the board and the finance and governance piece, our understanding of it is that it looks like it is more of an advisory board. If we want to set up something on an independent footing, then transparency and accountability are important, so governance and finance oversight should be put in place. We also talked in our submission about the expertise of the board. We would hope somebody with human rights experience or expertise would be on the board.

The lived experience piece is tricky but there is a way to get around it for the charities legislation. You can go to the High Court and get a dispensation. This is certainly something that should be looked at. Even if somebody cannot serve on the board, there should be an advisory committee of some sort where people with lived experience are feeding in. There has to be something there.

Mr. Karl Dalton

Staff of the service and mobility are a concern we will be raising. We are looking for a meeting with the Department of Justice first to clarify the full meaning of the terms in the document. We represent Civil Service grades as well as prison officers. There is currently Civil Service mobility. The theme throughout our entire document will be what this change of status means for our members.

Regarding membership of the board, on the previous occasion there was an interim board and there was a place for us on it. In this, we are not excluded but we are not included on this and that may be a concern.

Senator Lynn Ruane

There is no workers' representative.

Mr. Gabriel Keaveney

That is a long time ago. I did a bit of research in the history books. In the interim prisons authority, one of our previous colleagues was on that. We are not saying it is a hard and fast one, but it is the only thing we can draw a parallel from

An Leas-Chathaoirleach

Is the Senator happy enough?

Senator Lynn Ruane

I had a question about opinions and criticism and the director general's ability to criticise, or not necessarily criticise but to have an alternative opinion.

An Leas-Chathaoirleach

I will not open it up at this stage. I am going to go to Deputy Pringle and then we can come back, possibly, later on.

Deputy Thomas Pringle

My questions are along the same lines as Senator Ruane's, so the answers will be fairly similar. Looking at all the parts of the legislation, the Department of Justice seems to be retaining hold of the legislation. This is a big problem. It is not surprising really in terms of how the Department of Justice does its job and sees its role. It is going to be a fatal flaw in the legislation. This is going to be seen and presented as reform having been carried out and everything being done and dusted for the next 20 or 30 years. In fact there is no real reform because the Minister is retaining ownership of some very significant and important parts of the legislation that would make up a new independent statutory body. There are not many questions in that but perhaps the witnesses could answer in relation to Senator Ruane's questions.

I see the same thing regarding the director general in head 34 being very restricted in what he or she can actually do. Part 4 says that the board of the service is appointed by the Minister for Justice, not an independent body. Again, this is a problem. Head 52 says the Minister for Justice can redact or not. The Department of Justice is retaining ownership of all the important parts of this legislation, which is a real problem. I would be grateful if the witnesses could expand a wee bit more on that in their answers.

The code of conduct for prison staff is not a statutory one at the moment. If it were made statutory, how would the witnesses see that impacting and what would be the difference? I presume the code of conduct in place at the moment is voluntary. What is the difference going to be in that regard in the future? The role of the staff in the future is also significant. I would like to hear back from the witnesses as to what the outcome is from talking to the Department of Justice regarding this matter because that will have an impact on prison officers' terms and conditions in the future.

If we wanted to set the system up on an independent footing, I do not think we would go down this road.

Dr. Helen Kehoe

We have concerns about head 34 in particular and the director general being so restricted on what he or she can say before Oireachtas committees. Certainly, this is not something that we can see in evidence with other similar independent public bodies like the Irish Human Rights and Equality Commission or the Ombudsman for Children.

The latter are limited in what they can say before the Committee of Public Accounts but not Oireachtas committees generally. It is not entirely clear why they would be so limited in their comments on policy, and it is something we would urge the committee to look at again.

Also on the notes for the scheme in particular, there is talk about this being modelled on section 72 of the Policing, Security and Community Safety Bill 2023. We would have concerns in that regard because that is untested legislation that is still in draft form. It is a little nebulous as to why that Bill is being relied upon so heavily in this particular circumstance.

Ms Saoirse Brady

There was a similar provision in the general scheme of the inspection of places of detention Bill. We raised similar concerns in that regard also about the limiting of this, where one would have a director general who would know the system inside out and their concerns or opinions should be very valid and taken into account. We would question why that is not the case. The transfers to open prisons is something that should also be considered as I know that Senator Ruane brought that issue up.

Dr. Helen Kehoe

I know that our friends in the Prison Officers Association will talk more broadly about the code of conduct and the role of staff but in that regard, we would see that there is that broader issue around the culture within the Prison Service. From our point of view there is a very obvious role there for a culture committee within this new body so that the staff can also feed into that. This is about everyone in the prison, not just the prisoners but also the staff and how they can feed into that system more broadly.

An Leas-Chathaoirleach

I call Mr. Keaveney,.

Mr. Gabriel Keaveney

On the role of the Department of Justice, our view would be that we either become fully independent of the Department or we do not. There is mention in parts to the effect we are not legislators, but there is also mention of the Secretary General. The Minister is mentioned a great deal. It should be either all out or nothing at all.

We have no issue whatsoever with respect to the code of conduct other than having it explained to our members in the context of what it means for them, what they are expected to do and what they are obliged to do under the code.

With respect to culture committees or anything of that nature, we would have no issue but there are many committees that talk about many things. If this committee is going to be there, we would want it to deal with some of the issues that are present or are perceived to be there.

An Leas-Chathaoirleach

My thanks to Mr. Keaveney. Perhaps Ms Brady would like to make a brief contribution.

Ms Saoirse Brady

Deputy Pringle referred to the redaction of annual reports, which is a big concern for us because at the moment. The reports of the Inspector of Prisons have to go to the Minister first, and the Minister can choose not to publish them. We are in the situation where that is happening at the moment so we believe it should be fully independent.

An Leas-Chathaoirleach

I thank Ms Brady very much and invite Mr. Dalton to speak. Briefly, please.

Mr. Karl Dalton

On the issues of the code of conduct and culture, we have a history in the Prison Officers Association of driving cultural change. We have no fear of that and we embrace it. In fact, we were the body that brought in the incentive regime for prisoners and similar initiatives. We believe that all of these policies are positive and we are a driving force behind them. I just wanted to make that point.

An Leas-Chathaoirleach

I thank Mr. Dalton and call Deputy Farrell.

Deputy Alan Farrell

I thank the Leas-Chathaoirleach very much. I wish our witnesses a good afternoon and thank them very much for having come before our committee today. I apologise that I am unable to make it down to the committee room just at the minute. It is because I am trying to make contributions to two committee meetings at once.

I have a number of quick questions on heads 15 and 24, which deal with temporary release, board appointments and the general independence and oversight. I want to give an opportunity to our witnesses to make some comments in addition to those they have already made. Do witnesses feel that head 15, which relates to temporary release, is robust and sufficient? On head 24, there has been quite a deal of discussion on board appointments. The general scheme states that it is envisaged that appointments will be made in accordance with the general open process relating to appointments of persons to State boards. Do our witnesses feel that is sufficient?

On oversight, which I know the witnesses have already touched upon, perhaps they might make a comment on any further observations they might have with regard to that oversight function. In that context, I refer to parliamentary oversight.

Dr. Helen Kehoe

On head 15 and temporary release, we are glad to see that provision in the general scheme but as the committee will have noticed in our submissions, we have concerns around its wording because, as matters stand in legislation, it is a little confusing. We know from people who ring us on the ground that it is a very confusing process as regards to whether it is the Minister or the Irish Prison Service, which has ultimate responsibility for how temporary release functions. People tend to be bounced between pillar and post. We are concerned that as head 15 stands, it will not in fact clarify anything but might even possibly confuse things further because one has a situation where the Minister may, in writing, delegate that responsibility but may also decide to rescind such a delegation. We urge the committee to perhaps consider this as something that could be clarified at this point of time with this scheme as to who exactly has ultimate responsibility for the functioning of the temporary release, and how that might be improved upon in future, rather than leaving this issue in this kind of grey area for people on the ground.

Mr. Karl Dalton

On the temporary release, this conflict affects the prison officers on a daily basis and is linked back to Senator Ruane’s point on services. There has to be a flow through the prison and the point should be made very clear as to how someone achieves temporary release. It may be opening the door for a political decision to stop temporary releases, for instance, when there is overcrowding. Who makes the decision? Will it be a Minister who says that the timing of this does not suit for people to be out on the street or will it be the opposite way where, in other times, the director general has control over that? It ties in with the whole ethos which the Prison Officers Association is involved in with regard to having a clear plan for prisoners from the day they enter prison to the day they are released. This provision may not sit perfectly with that.

An Leas-Chathaoirleach

Would Ms Brady like to come back in on that point?

Ms Saoirse Brady

On the appointment of the board, it says in the notes that it is envisaged that it will be the Public Appointment Service process but that is not what the draft legislation. We find out more and more where the notes have the intention set out in them but the legislation does not. In fairness, a judge is not going to go back and look at the notes to the general scheme when interpreting the legislation at a later date. I believe that is something that needs to be crystal clear in the actual draft legislation and Act as enacted.

Deputy Alan Farrell

I completely agree with Ms Brady there.

An Leas-Chathaoirleach

Is Deputy Farrell happy with those responses?

Deputy Alan Farrell

I just wanted to hear the general view on those two Bill heads about which I had some concerns.

An Leas-Chathaoirleach

I thank Deputy Farrell and call Deputy Daly to speak now, please.

Deputy Pa Daly

I thank an Leas-Chathaoirleach. All of our guest speakers are very welcome. I was also going to ask about the temporary release, as I read just again now what was said by IPRT in seeking clarification. With regard to prison officers; prisoners also tend to be very reliant on the staff to process these applications. My understanding is that the local gardaí of the person applying would also be consulted by the Irish Prison Service. Is that not the case or perhaps I am mistaken in that regard? What is the view of the prison officers about having an independent body separate to the prison officers because my understanding is that these officers help a great deal with the processing of forms, etc., by prisoners who may have literacy issues? The IPRT mentioned this issue. I want to ask the Prison Officers Association about the education and training. We hear a great deal about this matter. Over the past year or two, we have had a number of briefings on penal reform and the numbers of prisoners, for example. I believe in previous hearings we heard that 4% of remand prisoners were in prison for more than one year in 2019 and that was up to 12% in 2021. It declined slightly last year.

There are many prisoners, and certainly more than there used to be, on remand. What opportunities are there, if any, for them? Is it the case that where there are pressures on staff, the schools and the shop are, from what we have been hearing, the first of the facilities to be cut for prisoners? I would be slightly worried about the conditional element in the draft general scheme which states to the effect that full regard will be had "to the resources that are available”. I understand that two counsellors were provided to the Midlands Prison by the Merchants Quay Ireland service. That is an indication of the limitation on resources, not to mention the position relating to psychologists and everything else.

Would the witnesses have concerns about the resources that are available or would they have any comment to make on that? We often hear, particularly from prisoners, that rehabilitation is very limited in going through the system.

Mr. Gabriel Keaveney

I will come in on the first part, which is temporary release. What we would say is that there should be a clear structure in place as to how a prisoner obtains temporary release and there should be a connection between that and their behavioural pattern. We see at times that it is easier to get temporary release from, say, prison X or prison Y, and there is no consistency or certainly not enough consistency. The open centres should be utilised and they should be the driving force so that, ultimately, many people would end up there. I believe there is contact in some cases with An Garda Síochána in respect of whether prisoners are released or not, certainly in more high-profile situations.

Mr. Karl Dalton

I will come in on education and training and the workshops being closed. First, we have what is called a regime management plan, on which we have engaged with the Irish Prison Service. It is for safe systems of work for staff when there are the inevitable shortcomings in the staffing of areas. One of the first priorities is that structured activity should be protected. In other words, we maintain the structured activity first and try to get as many people as possible. A simple way of explaining that is if someone is going to school every day and we have staff shortages, we change the programme and while they might only get a half-day, we continue to make sure they have structured activities. From our perspective, prisoners who engage in structured activities are far less likely to injure one another or injure staff. In the national and regional pay agreements, we enshrined the regime management plan for safe systems of work. Again, you would have to go into that and look at the priorities, but the first priority is structured activity, such as the schools and workshops. When prison officers take prisoners into the workshops, there is less trouble in the prison, it is a happier environment and the prisoners are more content.

This again ties in with the point that the services lead into the behaviour, the behavioural pattern leads into the incentivised regime, and the incentivised regime leads into the ability to get temporary release and to have a constructive time in prison, leading to release at the right time.

Deputy Pa Daly

Is there much disruption to the structured activities?

Mr. Karl Dalton

It depends on the prison. Some prisons are very good at the regime management plan and they should be held as the model to be followed by the rest of the prisons.

Deputy Pa Daly

Which ones are the better prisons?

Mr. Karl Dalton

At the minute, it is the Midlands Prison. At the end of the term, the Midlands Prison had 46 prison staff in workshops and although staff shortages are fairly heavy, it managed to get 39 of these officers into the workshops.

Deputy Pa Daly

Can the witnesses say which prisons are falling down?

Mr. Gabriel Keaveney

We will not be too critical. What we can say is that we have raised with the Prison Service a situation where a school with 18 or 19 teachers has been closed and prisoners are diverted to the exercise yard. We think that is a complete no-no, to be honest.

Deputy Pa Daly

Does that happen in other prisons?

Mr. Karl Dalton

It can happen.

Mr. Gabriel Keaveney

It happens in some locations and we have highlighted it several times. The yard is the worst place because there can be intimidation, bullying, drugs coming in over the wall and so on.

Deputy Pa Daly

I have one final question arising from what was said. Mr. Keaveney mentioned moving prisoners to open prisons. Prisoners often have to serve half of their prison term before they get sent to an open prison. Is that something that could be changed so prisoners could perhaps be moved at a fairly early stage to an open prison?

Mr. Gabriel Keaveney

The Irish Prison Service has a policy in place in regard to how people are moved to open centres. It should be based more on previous history, the sentence they are in for and so on. We have had difficulty getting prisoners cleared for open centres. It only happened when the overcrowding came back that the Prison Service started to send people. The open centres equate to roughly 10%. Our strong belief is that there should be a waiting list for the two open centres.

One of the other things that we raised with the Prison Service some time ago was that the Grove area in Castlerea be utilised for prisoners who are not deemed suitable for the actual open centres. It is a similar scenario. That has been done and sex offenders are being moved to that area.

Ms Saoirse Brady

On the shutting down of schools, we do get calls around that but our understanding is that there is a huge amount of pressure on the Irish Prison Service in terms of court escorts and resources sometimes have to be diverted for that. Some 100 extra officers were allocated for education in last year's budget but I do not think that was necessarily ring-fenced, and some of those have been put in place but not all.

On the resources piece, we would be very concerned that it talks about “available resources”. Ultimately, the Irish Prison Service has a duty of care to the people in its custody so it should not be limited by resources in terms of how it provides for those people. We have a situation at the moment where there is overcrowding and people are sleeping on mattresses. That is not conducive to anybody's rehabilitation so we need to address it and ensure there is investment in any new structure that has gone in. The Irish Prison Service can ask for what it needs and it should ensure it is granted sufficient resources.

Deputy Patrick Costello

Much of what I wanted to say has been raised already and I am conscious that time is ticking against us. I want to say for the record and for our report that a couple of grey areas that need clarification have been highlighted in regard to temporary release and the delegated powers between the director general and the Secretary General. These things need to be tightened up. It is also very important that we put into our report the issue around the publishing of reports and the silencing of people who may come before committees. I am conscious there are three reports in regard to the Dóchas Centre that have not seen the light of day in some time. Transparency and openness are essential and anything that limits that is problematic.

One of the things I wanted to pick up on is the code of conduct. The code of conduct provides for consultation with a variety of groups, such as the Irish Human Rights and Equality Commission and others, and with representative groups like the IPRT and the Prison Officers Association, but it does not explicitly say there needs to be any consultation with prisoners themselves. As much as prison officers are living under a code of conduct or a code of ethics, prisoners will be living under the regime that this creates. In the same way I have always argued that there should be public consultation in regard to, for example, Garda regulations or Garda codes, I fully believe we should find a way – it should not be that hard - of conducting some sort of consultation with prisoners, and that needs to be explicitly named in the Bill. The Bill provides that a code of conduct can be done with anyone the Minister feels is relevant but that has the potential to end up being nobody. If we want to recognise that prisoners are living under this code of ethics, they need to be named explicitly at that point.

I do not really have any questions, which might move things along, but if anyone wants to respond, they should feel free to do so.

Mr. Gabriel Keaveney

That is an issue for us. I want to explain fully what it means for our members and what it means for the powers of the Director General, as opposed to what is currently the Secretary General, which is one of the issues. In regard to who has been consulted on the code of conduct, we have no issue whatsoever. We have sat in rooms with prisoners in regard to various issues, both here and across the water, so the more people who are consulted, the better, once the right code of conduct comes into place.

Ms Saoirse Brady

We would agree, but it should be meaningful consultation, not just a tick-box exercise, so we need to find a way to consult meaningfully with prisoners. We consult with prisoners but we find that people who are serving long-term sentences have very different issues from those who are serving short-term sentences, so it needs to be fully reflective of the prison population as well.

An Leas-Chathaoirleach

That completes the first round. Does anybody wish to come in with anything further?

Senator Lynn Ruane

I have two questions. First, although I cannot remember which heading this comes under, it is stated that the Minister will lay out the priorities for the year. I suppose this comes back to the separation issue. If there is independence, should the director general and the board not be the ones who are in a position to lay out the priorities, obviously in consultation or in collaboration with others? This seems to run counter to the intention of the Bill.

I do not see anything in the heads on the victim liaison officer, VLO, and whether there should be a legal basis for his or her involvement with the IPS and whether that could be done through this legislation or by looking at the make-up of the board. I have an interest in restorative justice practices. I am wondering what the witnesses' thoughts are on the VLO having much more involvement on a legal basis.

Ms Saoirse Brady

On the Minister laying down priorities for the year, it should be the director general. I, with my team, lay down the priorities for the year and we have our strategic objectives, so I imagine the IPS has its own strategic plan it works to. That is something. The service should of course consult the Minister to see what the pressing issues are, but it should have the ultimate say.

On the VLO, I agree there is probably a role for him or her there as well. This could be a really good opportunity to try to thread that in and ensure it is included. The IPRT is very much in favour of restorative practices right across the Prison Service as a whole.

Mr. Karl Dalton

Regarding the Minister laying out priorities, the strategic plan comes out and it normally has a number of pillars which we are going to operate to. From our perspective, it takes a number of years to bring about change in a prison so it can depend on whether a Minister is going to interfere with that. The current strategic plan has five pillars and we work towards that from a staffing perspective. Whatever direction we are given, we will lead the staff in.

On the VLO and restorative justice, we have very limited experience of restorative justice, but any time we have engaged on it, it has been positive enough. We have no issue around that kind of thing.

Senator Lynn Ruane

I thank the witnesses.

An Leas-Chathaoirleach

The Senator is happy enough. No one else wishes to come in on the second round, so that completes the questioning. Is there anything the Department officials wish to add?

Mr. Paul O'Farrell

I thank the Leas-Chathaoirleach. We thank the committee for the opportunity to observe this pre-legislative scrutiny. We thank the other witnesses and committee members for their interest in the scheme and the thoughtful points they have made. We have listened carefully to everything and we will reflect on it. We look forward to receiving the committee's report in due course and we will give it the fullest consideration. We are also happy to respond to the committee in writing should it need to clarify any matter.

I wish to provide a brief clarification on one point. There were a number of comments on the need for the provisions to reinforce the independence of the body and its CEO, including matters such as providing the CEO with an ability to comment on Government policy. For the avoidance of doubt, the purpose of the Bill is to provide a statutory basis for the Prison Service's functions as a service delivery body that, as it stands, delivers a Government service on behalf of, and in the name of, the Minister. The essential purpose of the Bill is not to alter in any fundamental way that role or the role of the director general as the person with overall day-to-day responsibility for delivering those services. The Bill's purpose is rather to create a full statutory basis for the functions and responsibilities of the IPS and to put in place a best-practice statutory framework for its governance and accountability, including its accountability to the Minister as the Government representative who will continue to be politically accountable for the performance of the prison system. I wanted to say that.

An Leas-Chathaoirleach

Great. I thank Mr. O'Farrell and Mr. Teehan for being present. That concludes our question-and-answer session. I propose we publish the opening statements on the committee's website. Is that agreed? It is. On behalf of the committee, I thank all the witnesses for coming in. It has been a very valuable input and everybody has enjoyed the benefit of the witnesses' particular perspectives and understanding. Before we move to the next group, we will go into private session.

The joint committee went into private session at 4.54 p.m. and resumed in public session at 5.23 p.m.

Deputy James Lawless took the Chair.

An Cathaoirleach

I welcome everybody to the Joint Oireachtas Committee on Justice for the next session of our consideration of the general scheme of the criminal justice (legal aid) Bill 2023. Before I welcome our witnesses, I want to declare an interest in that I am a barrister and I have availed of the legal aid scheme in the past. In my opinion, that gives me a greater understanding of proceedings but other people may have different opinions. I wanted to put that on the record at the outset. It is important that we are always transparent about these things.

I welcome Ms Sara Phelan SC, chair of the Bar Council of Ireland; Mr. Seán Guerin SC of the criminal committee of the Bar Council of Ireland; Ms Fiona Ní Chinnéide, director of operations with the Probation Service, who is known to us and has been at this committee before, wearing different hats; Ms Leah McCormack, also of the Probation Service; Ms Caroline Counihan, legal support manager with Safe Ireland, who is also familiar with the committee and has been hosted by us before; Dr. Clíona Saidléar, executive director of Rape Crisis Network Ireland; and Ms Donna Parau, legal director of Rape Crisis Network Ireland, who is also no stranger to these Houses. We also have Mr. Darren Lalor BL, Mr. William Morrin BL, and last but not least, Mr. Simon Donagh of the Irish Criminal Bar Association. We are joined today, as always, by an observer from the Department of Justice who is a standing attendee, and that is Mr. Kevin Condon, who is principal officer in the civil legislation section. They are all very welcome.

In a moment, I will invite the witnesses to deliver their opening statements and I will tell them a little bit about how this committee works. Before I do that, I will give a short overview of privilege. It is important to understand that we adhere to various conventions in these Houses. Witnesses and members are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. If their statements are potentially defamatory, they will be directed to discontinue their remarks, and it is imperative that they comply with any such direction if given. I presume witnesses and members will all be very well behaved, so there will be no need for that but it is a point I need to put out there.

How we operate is that we have short opening statements. Some organisations have two spokespersons and some have one. Each organisation gets a short opening statement of three minutes. We find that it works better to allow a short opening statement to set the tone and put initial remarks on the record, and then have a longer time for engagement with the members. We find that is a better format. That is how we do it. We then go to the members, and I have taken a list of indications from the members as to the order in which they wish to want to come in. I will call the members one at a time, and there is a six-minute slot per member for questions and answers. Members can use that time as they see fit. They can deliver a five-and-a-half-minute monologue if they wish to, or they can take 30 seconds for their first question and then have more time for answers. Ultimately, each member has a six-minute slot. We find it works well, and it allows us to get around. The items that witnesses might have liked to have said in their opening statement but did not get a chance to say will inevitably come into focus in the next round of questions. We find that we get through the business of the meeting quite succinctly in that way.

I am going to call on the witnesses in the following order: the Bar Council of Ireland, Safe Ireland, Rape Crisis Network Ireland, Mr. Lalor, the Probation Service and the Irish Criminal Bar Association. It is a three-minute slot, and we have a timer in the corner to keep everybody on time. I ask witnesses to try to adhere to that as far as they can and there will be plenty of time afterwards. We will start with Ms Phelan as chair of the Bar Council of Ireland. She is very welcome to the committee.

Ms Sara Phelan

At the outset, I would like to extend thanks to the Chair and the members of the committee for their invitation to us, as representatives of the Bar Council of Ireland, to participate in this public session of the Joint Oireachtas Committee on Justice to establish our views on the general scheme of the criminal justice (legal aid) Bill 2023. It would be somewhat remiss of me not to mention the significance of today, 3 October, as the day on which criminal barristers have withdrawn their professional services to highlight the unfairness and inequity in the professional fees paid to them and our concerns for the consequent availability of criminal barristers to prosecute and defend serious criminal cases.

As public representatives, members of the committee might wonder if this is an issue that is relevant to them or their constituents. It is relevant for many different reasons but I would like to highlight three of them. First, it is a national issue concerning the functioning of our criminal courts. One only needs to pick up newspapers in any our communities to understand the importance of local justice and the reassurance that a functioning system gives to the community.

Second, no more so than health, until it comes to one's family’s door, one might not necessarily fully appreciate the need for legal services. It is only when our loved ones, friends and colleagues have a need to access to criminal advocacy services, as victims or those accused of crime, that one realises the issues that arise. In recent months, there has been a shortage of counsel to prosecute serious criminal cases, and therefore it is a very serious issue.

Third, on a more international stage, it is a rule of law issue. The rule of law relates in part to the confidence and trust of the public in the administration of criminal justice and our independent courts system. We have seen in courts closer to home than we would like how those courts have been crippled, both directly and indirectly, with a negative impact on society and the citizens of those states. The rule of law is threatened by the situation we find ourselves in at the moment regarding professional fees. The Bar Council of Ireland's recommendation to members to withdraw their services today is unprecedented. The reason for it is the fact that a review, concluded in 2018, suggested that those fees should be restored following on from austerity-era cuts. Perhaps during the question and answer session, I will go into the flexibilities and reforms that have been provided by criminal practitioners.

It remains for me to thank the committee for inviting the Bar Council. We welcome engaging with it on the criminal justice legal aid scheme.

An Cathaoirleach

I thank Ms Phelan for sticking to the allotted slot for the opening segment. Ms Counihan is next on my list, but perhaps we will take Ms Ní Chinnéide next since we are going in order around the table. It makes it easier.

Ms Fíona Ní Chinnéide

I thank the Cathaoirleach. I am director of operations for prisoners and reintegration in the Probation Service. I am joined by my colleague, Leah McCormack, assistant principal probation officer, who leads the Probation Service’s legal and quality assurance unit. She is also a qualified barrister. I thank the committee for the opportunity to contribute to its discussion. We will do our best to respond to any questions members may have.

The Probation Service is part of the Department of Justice with the primary purpose of assessment and management of people who have offended and are subject to probation supervision in the community, with the goal of safer and more inclusive communities where offending and its causes are effectively addressed. One of our core aims is to motivate and assist those who have committed offences to change, while facilitating opportunities for them to explore the harm caused by their offending. The Probation Service recognises the harm caused by crime and that victims are important stakeholders in the justice system.

In the Probation Service, we understand that an efficient and effective legal aid scheme is fundamental to safeguarding fair, equal and meaningful access to justice. Without legal representation, an ordinary person without any experience of criminal law and court proceedings would be at a disadvantage against the potential legal resources of the prosecution. We therefore welcome the publication of the criminal justice (legal aid) Bill 2023, which seeks to modernise the operation of the criminal legal aid scheme, and the opportunity to highlight some general observations on the Bill for the committee.

We welcome new measures included in the Bill that aim to strengthen oversight and governance structures in order to deliver a high-quality service to all recipients. These include the proposal to transfer administrative responsibility for the criminal legal aid scheme to the Legal Aid Board, which we understand could provide higher levels of efficiency and effectiveness in the delivery of the scheme; the provision of a new oversight committee involving stakeholders, which we understand will contribute to more effective cross-agency collaboration; and the introduction of a simple and transparent written or online application system for criminal legal aid supported by a statement of financial circumstances, which we understand will enhance the service user experience for some and hopefully encourage increased access to legal representation, where appropriate.

The Probation Service welcomes the Bill’s proposal to extend free legal advice to victims of sexual offences. These changes are in line with commitments made by the Minister for Justice under Supporting a Victim’s Journey: A Plan to Help Victims and Vulnerable Witnesses in Sexual Violence Cases. The Probation Service supports all attempts to ensure that the legal aid scheme is more responsive to victims’ needs and this is central to the work of our restorative justice and victims services unit.

The Probation Service notes that the general scheme allows for legal advice to be granted to a parent, guardian or other responsible adult in certain cases, which is particularly relevant to proceedings under the Children Act 2001, as amended. We welcome the alignment with the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems and the United Nations Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime. We fully support this extension and will endeavour to promote awareness of the scheme when working with children and their families through the course of our work.

The Probation Service welcomes the publication of the new general scheme of the criminal justice (legal aid) Bill 2023. Access to legal representation is recognised as a core component in any modern, fair and equal justice system. I thank the committee once again for the opportunity to speak today.

An Cathaoirleach

Ms Counihan will now have her rightful moment. She has three minutes to address the committee.

Ms Caroline Counihan

I very much thank the committee for this opportunity to address it on the general scheme of the criminal justice (legal aid) Bill 2023. Most of what I will say is confined to head 47. The first and most important thing from our point of view is that this is a great opportunity to extend the right to legal advice to victims of specified domestic violence-related offences. These victims often cannot afford to pay a private solicitor and cannot always access legal advice from a pro bono source. Throughout the lengthy criminal justice process victims need to be able to get answers to their legal concerns as they arise. This need may be particularly acute for victims of domestic violence-related offences, where issues such as witness intimidation and retaliation may well arise and need to be addressed swiftly.

However, we suggest this is a drafting challenge. It might be coped with very easily by adopting and adapting the formula used in section 40 of the Domestic Violence Act 2018 to define a “relevant offence”, in order to capture all the principal domestic violence-related offences. We have set out how this might be worded in appendix 2 of our opening statement. In addition, we suggest there are a couple of recently created offences, sexual in nature and capable of causing intense alarm, distress and harm, which might very well come under head 47. These are behaviours that are common in the context of a more widespread pattern of domestic violence and abuse. They are: offences contrary to sections 2 and 3 of the Harassment, Harmful Communications and Related Offences Act 2020, which relate to distributing, publishing and recording intimate images without consent and threatening to do so; and offences contrary to section 45 of the Criminal Law (Sexual Offences) Act 2017, particularly section 45(3), which relates to extensive conduct of a sexual nature and can be used to cover a wide range of unwanted sexual behaviours, such as upskirting or downblousing.

We have a couple of final observations. At this point, it might be very useful to clarify the drafting in a couple of places of the proposed new section 26(3)(a) of the Civil Legal Aid Act 1995. That section should spell out clearly and unambiguously that the right to legal advice for a victim is not subject to a means test, without the need to consult other parts of section 26 of the 1995 Act. We very much approve of the idea that legal advice should be available regardless of whether a formal complaint is ever made, and that it should be available at any stage of the criminal justice process, but both these concepts are run together in a single sentence in the draft Bill. With great respect, we suggest it might be clearer to separate these two aspects, for instance, by stating, first, that legal advice is available to victims of the listed offences at any time after the offence and then, in a separate clause, qualifying that statement by stating that this right obtains even if there is no criminal investigation or prosecution in being at the time the advice is sought.

I see I am out of time so I will now keep quiet. I thank members for their attention.

An Cathaoirleach

Ms Counihan will have plenty of chances to come in and out over the course of the meeting. I thank her for her statement. I will next go to Dr. Saidléar who is very welcome. She has three minutes.

Dr. Clíona Saidléar

I thank the committee for its invitation to Rape Crisis Network Ireland. As ever, we are delighted to be here.

I will focus on the four main recommendations we made in our earlier written submission. The first deals with the criteria applied for victims to qualify for legal aid, namely, the specific crimes to which the enacted Act will apply. Second, our research points to the barrier facing most victims, which is resources. We are advocating for victims not to be subject to means-testing. Last, we are calling for clarity on when and how victims will be able to access the legal aid services proposed.

The provision of legal advice for victims of sexual crime is a crucial step in supporting survivors. As members know, it is essential to deliver a more survivor-centred justice service that will improve the experiences of victims as they engage with the criminal justice system. The quality of this engagement directly affects rates of attrition. While not considered an equal participant in the legal process, the central role of the victim means they require supports and protections of their rights. The intimate nature of these crimes, which is recognised in Supporting a Victim's Journey, combined with the associated rape myths and victim blaming, makes many victims reluctant to make and sustain a criminal complaint.

RCNI is calling for access to independent legal advice from an early stage and throughout the criminal process. This legal advice can empower victims to engage with and withstand the often re-traumatising impact of the criminal justice process.

Our first recommendation, like our sister network Safe Ireland, focuses on head 47. Rather than attempting to compile an extensive and exhaustive list of every possible crime that should be included for legal aid, a more generalised definition covering all harms of this nature should be applied. This will mitigate the possibility of some crimes being excluded and further avoid the need for constant amendments to this legislation in the future. We are advocating for the replacement of head 47, paragraph 3A (a) to (k) with a broader definition that is harm-led, as opposed to the specifics of the crimes that are already enacted. Essentially, that is "all crimes containing, related to or containing elements of rape, sexual assault", and then the list.

In our second recommendation, we submit that this Bill must clearly and unequivocally confirm that victims of sexual offences will not be required to comply with a means test, nor will they be required to make contributions to access legal aid services for sexual offences. While this is discussed in detail in Chapter 6 regarding "specified persons", no mention is made of provision for victims.

The third recommendation is, again, around clarity on what we think is already the spirit of the legislation, which is that victims should be given the opportunity to access legal advice directly through the Legal Aid Board or a suitable facilitator before any engagement with An Garda Síochána and the Director of Public Prosecutions, DPP, is considered, if they so choose. Paragraph 3A alludes to legal advice being available at any time before a complaint is made and whether or not a complaint is made but it is unclear as to how this could be accessed.

The last recommendation is that legal advice should be available to victims throughout the legal process, including the trial. Again, the provision for legal advice throughout the process is not specifically provided for in the wording of the head.

An Cathaoirleach

I thank Dr. Saidléar, and we will go now to Mr. Lalor BL. He also has three minutes for his opening statement.

Mr. Darren Lalor

My opening statement and submissions are based on my own personal and lived experience practising as a barrister since 2015. I thank the Cathaoirleach and members of the committee for their invitation to discuss the general

scheme of the criminal justice (legal aid) Bill 2023. I do not want to rewrite my submissions already furnished to the committee but I wish to take this opportunity to emphasise the importance of a properly funded and mechanised criminal justice payment system at all levels, with a particular focus on barristers practising at District Court level under the criminal legal aid scheme.

By virtue of rule of law compliance requirements and Ireland’s membership of the United Nations and of the European Union, the State is obliged to fund prosecution and defence services in criminal proceedings. On the defence side, this is so where an accused is unable to pay for their defence. The European Union Justice Commission audits rule of law compliance in member states on an annual basis. Non-compliance can lead to substantial State fines. As matters stand, there is no mechanism in place to facilitate direct payment to barristers practising at District Court level, save when the non-statutory scheme is on occasion activated by a District Court Judge.

All criminal matters that come before the District Court are important to an accused, given the nature of the alleged offence and the circumstances of that accused. Effectively, instructed barristers have to live the lives of the accused and the victims of crime at a particular time in their lives. Then they go home and live their own life, with their own family, waiting to be paid by their instructing solicitor and in many instances, hoping in vain to be paid. I do not want to rewrite history, but the State has placed me and many other barristers in a dilemma such that I need to come before the committee pleading with members to rewrite the future.

Nothing effective has been done, since I was called to the Bar in 2015, to remedy this dysfunction in the legal aid scheme at District Court level. To become the best version of oneself one must take risks. I have taken those risks. I left school very early. I turned my back on possibilities, and later found my future in my wife Fiona, and with Ms Marie Torrens BL and Mr. Luigi Rea BL, each of whom I trained under. Now the State has turned its back on me, and people like me.

I tell students who come to visit the Criminal Courts of Justice, “Don’t negotiate your values with anyone. You are all worth it.” Yet today, I am sitting in front of the Joint Oireachtas Committee on Justice, cap in hand, asking to be considered to be paid directly by the State for work done on behalf of the State. It is a fair day’s pay for a fair day’s work, and I think I am worth it.

An Cathaoirleach

I thank Mr. Lalor. Last but not least, we will go to Mr. Donagh from the Irish Criminal Bar Association. I think Mr. Morrin is with Mr. Lalor, so both of them will get a chance to speak later on.

Mr. William Morrin

That is okay.

An Cathaoirleach

When we get to questions, everyone will have a say then. Mr. Donagh is up next.

Mr. Simon Donagh

I thank the Chair and the members of the committee. On behalf of the Irish Criminal Bar Association, I have prepared a short opening statement.

As members will be aware, barristers doing criminal work have withdrawn their services today. This was not an easy decision. It has delayed trials and postponed justice for victims and accused persons alike. This measure, however, was necessary to highlight the unfair way in which barristers have been, and continue to be, treated in relation to their pay. The fees payable to barristers are now lower than they were in 2002. From 2008 to 2011, a series of fee reductions was implemented to address the financial crisis. These cuts ranged from 28.5% to 60%, depending on the particular fee. These figures do not take into account inflation and the increased cost of living. On average, and in real terms, this amounts to a 40% reduction in fees since 2002. It means paying 2023 rent on 2002 wages.

One point warrants emphasis. This is not about a pay increase. It is about fee restoration. That is an important distinction. Our fees were cut at the same time that cuts were widely imposed across the public sector. Tough as this was, it was fair and necessary in the interests of solidarity. It would have been wrong to single out barristers from pay cuts during the financial crisis. For the same reason, it is wrong to single us out from the reversal of those cuts now.

Turning to the Bill under discussion, while there is always room for improvement, the current legal aid framework for criminal matters works relatively well. Any proposed reform should bear this in mind and take caution to avoid fixing something that is not broken. There are some aspects of the Bill which raise particular concerns. These have been outlined in more detail in our submission. Ultimately, what is important is that any reform does not diminish the effectiveness of an accused person’s right to a fair trial either by reducing the level of representation available or by erecting unnecessary procedural obstacles to the granting of legal aid.

An Cathaoirleach

I thank Mr. Donagh, and that concludes the first round of opening statements. We will then move to the other side of the table, and it is an opportunity for members to put their questions and observations to the witnesses. I have a roster here with six-minute slots. Senator Barry Ward, who is also vice-chair of this committee, was the first in.

Senator Barry Ward

At the outset, I will also declare an interest in that I am a practising barrister in the area of criminal law, so I am a recipient of legal aid. I am a member of the Bar and also a member of the Irish Criminal Bar Association but I have no pecuniary interest in either body.

It has already been acknowledged that the withdrawal of services that took place today is a reflection of an extraordinary situation that faces barristers. In many ways, it shows the depth of feeling at the Bar and it has been echoed by some of the speakers today regarding the fundamental unfairness of the complete failure to unwind cuts that were justifiably made over a dozen years ago but remain entirely unaddressed. It is very much the case that legal aid practitioners are exceptional in that regard. As we appear in court, we are the only members of any professional body in there who have not been restored. Judges, members of the Courts Service, gardaí, people working for State agencies or anybody else have all had their fees restored.

On this Bill, I accept what has been said about the importance of legal aid. Obviously, it is not just an Irish thing. It is an international obligation we have in accordance with European and other international laws. I noted what Ms Phelan about how it is easy for most of the population to ignore legal aid because it does not affect them. It is only when it affects them that they realise just how important it is, that is, when one is accused, falsely or otherwise, of an offence, or when someone in one's family is accused, or when somebody has been the victim of a crime. I endorse absolutely what has been said about the need for representation for complainants and victims of crime as well, and I will come back to that in a second. This is a rule of law issue. It is tremendously important, and it is far too easy for most of us to ignore it. As somebody who works in that area, I see every day just how vital legal aid is.

With regard to this Bill and how it is going to operate, I have a number of questions. The suggestion is that the legal aid board is going to achieve greater efficiencies. I would love to know how. For example, head 15(3) of the Bill relates to the grant of legal aid and the examination of what constitutes the justice of a situation and the means and things like that. Currently, that is done by a judge sitting alone, mostly in the District Court but sometimes in higher courts. By doing that, are we not delegating the function away from a judicial figure and giving it to a Civil Service body, which is not working in a court and is not working with these situations on a day-to-day basis? I wonder how that creates a greater efficiency. There is an extent to which I think, "If it ain't broke, don't fix it". We actually have a very functional legal aid system, leaving aside the dissatisfaction of some of the people who are the recipients of the moneys in that system. For the people who are the beneficiaries of it, it is a fairly streamlined system and it works pretty well.

Coming back to the issue that has been raised by the Rape Crisis Network and Safe Ireland in relation to representation, I absolutely and wholeheartedly endorse what they have said. I agree with the splitting of head 47 into two clearer heads. I think that makes absolute sense. What view do the witnesses have on the selection of a solicitor by such a complainant? At the moment, I understand they do not necessarily get to choose their solicitor. How would they feel about it if, in the same way a criminal defendant gets to choose who his or her solicitor is, a complainant had that choice rather than being obliged to go through the systems as they work at the moment? I agree also that there should not be a means test for those people. It is a nonsense that if someone is the victim of crime or the complainant in a case that they then have to put their hand into their own pocket simply because they may be well enough off to do that. In the same way the criminal injuries compensation tribunal operates, it makes sense that victims be backed up in that regard.

I would like to hear more about the harm-led definition. With regard to what the Rape Crisis Network said, is there a danger that that makes it unworkably wide? How do we prevent it from being unworkably wide? We cannot have a situation where every victim in every case in every court has also got a solicitor and counsel present representing them. Nobody is suggesting that but how do we stop a situation where that happens?

Maybe the Bar Council will have a view on this question. I do not know of any particular case where this has been set down in monetary terms. I do not think it has but the means test as defined in head 15(6) does not specifically say, for example, that disposable income is included or excluded. It looks at the means test without properly defining it. Do the Bar Council or the Irish Criminal Bar Association have a particular view on how the means should be set? Does it makes sense to peg the means test to a particular level of income or a particular instrument or something like that?

Another concern I have relates to head 15(7), which states that the court is entitled to take into account someone's failure to co-operate with it. I have a difficulty with that notion that legal aid should be denied if someone is belligerent or unco-operative, which to a large extent people are entitled to be. In fact, it does not make sense in those circumstances to deny them legal aid. One of the things I have seen is that the Judiciary and those who are in charge of the courts actually want counsel involved in those cases because they will put order on them and will allow cases to move forward in a way that is much more efficient. Does anybody have views on any of those points? I am sorry that I have thrown a scattergun out there for everybody and anybody but those were the issues I wanted to raise.

Ms Caroline Counihan

In response to the suggestion that it should be the victim who would be given the choice of which solicitor he or she would like to instruct, my perspective is that in an ideal world that sounds absolutely fantastic, provided there is a pool of suitably qualified and experienced people readily available. That would be great. From listening to people who work with survivors of domestic violence in services across the country, I am very much aware that a lot of people, having qualified for legal aid, are given a list of private practitioners who they must then go through and contact and see if those people have the capacity to represent them in a family law matter. That can be very onerous and very stressful for people in practice because there are not that many people available. My dream is the creation of a cohort of specially trained domestic violence solicitors and barristers, and I would have the temerity to say also trained in sexual violence, who would have a particular interest in the area, have some experience of it and would be available to provide legal advice, and for that to be paid for by the legal aid board. I am aware that there is a proposal for a pilot of something like that to be funded for a brief period just to see how it works. For me, the nirvana is the creation of a specialist cohort who would have that experience and that interest and would be available. Then I think it would be fine for people to be given a list of practitioners to go to. That would be fine.

Senator Barry Ward

Is that not already there with criminal legal aid solicitors?

An Cathaoirleach

I am sorry; the Senator is out of time. We have to run a tight ship because we have others-----

Senator Barry Ward

I would just like to address that issue while it is here in front of us, if I may. Is there not a cohort of criminal legal aid solicitors who would fulfil that job?

Ms Caroline Counihan

We have criminal legal aid solicitors and I would make absolutely no negative comment about their professional skills but to the best of my knowledge there is not that cohort of lawyers who are specialised in domestic and sexual violence and that sort of thing, which to my mind is a specialist area.

An Cathaoirleach

That seems like a concern that this committee should be aware of so I thank Ms Counihan for raising that. It is something that would be of great concern if that is actually the case. I am going to move on to Deputy Costello. He has to be in the Chamber in a few minutes so he is under pressure for time.

Deputy Patrick Costello

I thank the witnesses who are before us today. I will try to keep this quite brief. I echo the comments of Senator Ward on the importance of legal aid. It is hard to overstate its importance. It frustrates me when I hear people in here - not members of this committee, which is perhaps quite telling - talking about how we spend too much on legal aid or saying legal aid should be provided for the first or second offence but not any after that. That is a fundamental misunderstanding of the role of legal aid and the importance of legal aid. These are views that we hear echoed around these Chambers quite frequently, despite them being very wrong. Mr. Donagh said we should not fix what is not broken. The Bar Council echoed that with similar language about trying to do no harm, or do no further harm. I have a very simple question. Does this Bill do that or does it make things worse? I ask the witnesses to provide some examples around that.

I appreciate that I am being very rushed in my questions. If there are other witnesses who did not get a chance to reply to Senator Ward's questions and who want to use this timeslot to do so, with the indulgence of the Chair, I would recommend jumping in.

An Cathaoirleach

There is one bench in this room. I think that question was directed at Mr. Donagh.

Mr. Simon Donagh

Perhaps I will be quick in my answers then. I would have said in response to Senator Ward's question on the lack of a definition in relation to the threshold for obtaining legal aid, we do not have a definition of that at the moment and it has not raised any problems. If we tried to put a definition on it, that is exactly the kind of thing that might break what is not broken. There are other examples in the Bill. For example, head 7 relates to the requirement to make legal aid applications in writing to the board. That has the potential to delay the assignment of legal aid for everyone - victims, defendants and accused persons alike. That is general throughout the Bill. Heads 18 and 19, in its current drafting, remove the automatic entitlement to counsel for indictable matters and to senior counsel for matters in the Central Criminal Court. I do not think that is a deliberate decision but that is something that needs to be rectified because if that were to go into law in its current state, it would dramatically reduce the level of legal representation available.

Similarly, jumping forward to head 29, for example, it would be the Legal Aid Board that would determine whether an application for an expert witness would be appropriate. In our view, the court is by far the best decision-maker for that. That is the body that can do it faster and with the experience necessary. I hope that answers the question.

An Cathaoirleach

Does anyone wish to come in on either Deputy Costello's or Senator Ward's questions, or even a point the witnesses might like to make to elaborate on their opening statements? I will give a little latitude. There are a couple of minutes left in this slot.

Mr. Seán Guerin

Senator Ward addressed some of the questions to us and we hope we can assist. We provided a written submission, which addresses some of the issues in a little bit of detail. One of the questions we touched on was raised, which was how the Legal Aid Board might be expected to achieve greater efficiencies. It is an issue we raised in earlier submissions to the Department on the general scheme of the Bill and we do not know the answer to that question. The existing system appears to operate efficiently. I think there was some suggestion regarding the issue that justifies the move of the system to the Legal Aid Board as a requirement for improvement audit practices. There does not seem to be any reason improved audit practice within the existing arrangement would not meet the necessity for the problem. We say that in a context where there are significant concerns that are obviously outside the scope of the present Bill. Regarding the functioning of the legal aid scheme generally, on the civil side as opposed to non-criminal matters – family matters and so forth – there are concerns about the efficiency of the operation of that system. Those concerns simply do not exist in respect of the functioning of the criminal legal aid system at the minute. Therefore, there does not appear to be a good reason to move them in that direction.

On the question of the harm-led definition, in particular for the extension of the right to legal aid to victims of crime, we made a suggestion in our written submission that it might be that the threshold be set at serious offences against the person. That means not every criminal offence and not every criminal trial, but a case where there is a victim who has suffered violence to the person, whether sexual or otherwise, and who has a real interest in how the particular case unfolds – a personal interest quite apart from the public interest in the prosecution of offences. That is just one suggestion and one way in which the harm-led definition could be applied.

On how a means test is to operate, that is a question the committee might consider addressing to the Department. We have a concern about the use of the specified threshold measure in head 14(4) of the Bill. There is a concern that by fixing limits in terms of proportion of income and so forth, you fail to take account of either factors particular to the case, such as the length, complexity or difficulty of it, or factors particular to the person in terms of his or her commitments, educating children, family members with special needs or where there are caring obligations. The idea that a specified threshold for income would be fixed beyond which either the entitlement to legal aid would be removed or restricted in some way gives rise to the real possibility of injustice in individual cases.

I echo the point Mr. Donagh made in response to Deputy Costello on the removal of the right to counsel. We mentioned in our submissions that the rules in England and Wales operate on the basis that the interest of justice test will always be satisfied in cases of prosecution on indictment. We urge the same view on the committee and the Oireachtas generally.

An Cathaoirleach

Will Mr. Guerin elaborate on that? How does that work in other jurisdictions?

Mr. Seán Guerin

The entitlement to legal aid effectively depends on two factors: the interest of justice and financial need. The arrangement in England and Wales is it is presumed that the interest of justice requires the assistance of solicitor and counsel in cases prosecuted on indictment because the mere fact they are being prosecuted on indictment means they are sufficiently serious in and of themselves. We take some comfort, as we mentioned in the submissions, from the view expressed by the Department in earlier consultation to the effect that it does not intend to achieve any restriction on current rights to legal aid by the terms of the Bill. However, we have the concern that the way in which the existing provisions are drafted, as we set out in detail in the submissions, would have the consequence of removing the automatic entitlement to solicitor and counsel for trial on indictment and the entitlement to solicitor and two counsel for trials in the Central Criminal Court, which are obviously more serious.

An Cathaoirleach

Okay. That makes a lot of sense.

Senator Lynn Ruane

I have a few questions and some of them are to seek clarity on a couple of things. Perhaps Mr. Donagh, Ms Phelan or Mr. Lalor will be able to answer my question on heads 18 and 19 and the existence of exceptional circumstances. The exceptional circumstances permit the court to allow second counsel. Is that saying that only at the say of the judge will that person have a second counsel, thus creating scenarios where some people will have two counsel and others will have one? I think someone said it erodes the right to two counsel, particularly in regard to serious offences. What is the benefit and what is the right regarding two counsel versus one? Does it create an unfair justice system whereby if people are not relying on legal aid, they may be able to have two counsel, but where people are relying on it, they may end up with only one counsel?

On the proceeds of crime stuff, am I reading it correctly that the proceeds of crime may be considered in an application if there has been, say, money laundering or whatever the charge may be where it is considered there may be proceeds of crime? If a family member has been assessed through the Criminal Assets Bureau, CAB, or something as having received the proceeds of crime, do they have the ability to apply for legal aid if they are going to challenge the assertion they received the proceeds of crime in a particular way? I am just not really understanding some of the heads in that section in terms of what they are actually saying.

Regarding the definitions of domestic violence, and Mr. Guerin hit on some of the definition stuff, is a general definition needed or is it about referring back to the existing Acts on domestic violence and subsequent Acts and legislation, even with respect to the sharing of online images and so on? Is it more that we should be referring to particular Acts that have already outlined what constitutes a criminal case rather than the list or even any sort of general definition?

Perhaps this is more for the Department, but I am trying to read heads 33, 34 and 35 in relation to the sharing of data between the Legal Aid Board and the courts. In head 35, it is stated that with the consent of the Minister, the board may prescribe suitable, specific measures in terms of the data, which kind of moves it away from the data protection regulation at an earlier point. However, it also states it would protect receiving information on someone’s health. What constitutes what information the Legal Aid Board might need to consider an application about a case at hand? It feels like it is suggesting more of a wide, sweeping sharing of information between the courts and the Legal Aid Board, where you may then be assessing someone not on the particular case but because all of a sudden you have all this other information on them. The health part stood out to me. Does somebody look at that and say this person has a background and has had a serious psychiatric illness so maybe we should not do something? How do we begin to use that information? Perhaps the questions on the intention of that data are more questions for the Department.

I have one question on human rights violations and legal aid that perhaps Ms Phelan can answer. I know this relates to criminal law, but when somebody wants to challenge where there have been human rights abuses, perhaps institutionally, in the prisons, in care homes or wherever it may be, that has to reach a certain threshold where it would be criminal. If someone wants to take a human rights challenge, is that something that can be considered under criminal law? Is it defined in that way that people could take a human rights challenge and apply for legal aid to do so if the threshold to constitute criminality were met?

Those are my questions for now.

Ms Sara Phelan

I will address the Senator’s last question first and then perhaps some of the others can come in. I have never thought about human rights challenges in the context of the criminal law and I do not believe it would currently be encompassed by the criminal legal aid scheme.

That is not to say that it cannot perhaps be considered in the future, but certainly not at the moment.

An Cathaoirleach

Do any of the other witnesses want to comment on that?

Dr. Clíona Saidléar

I want to comment briefly on the harm-based definition. For us, the first principle is about ease of access. We have talked about access before a case has even been taken to the Garda. It has not been categorised yet and the person is in this space. It should also point out that what we have not cracked open here is issue of the representation of sexual violence victims in the courts. Apart from the very specific points of representation, we are talking about advice rather than representation. In that sense, this is very workable. Leading with a harm-based definition means that it is survivor-centred and there is clarity and simplicity in terms of access. We are doing the work in terms of the intentionality of providing and making accessible this legal advice for survivors. It is primarily legal advice as opposed to representation that we are engaging with.

An Cathaoirleach

Deputy Daly is up next, but I want to finish out that engagement on Senator Ruane's final question. She asked about a human rights challenge. I would be interested in the views of the witnesses on that. It strikes me that if a constitutional issue arose in the context of a criminal trial, it would be pursued by the defence team and would be covered by the legal aid certificate. Equally, if it was appropriate to take judicial review, in my experience there is no shortage of counsel among solicitors willing to take judicial reviews where there is a reasonable prospect of those rights being vindicated. I do not know what the views of the witnesses would be on that.

Mr. Seán Guerin

We have made a submission and it relates, in part, to Senator Ruane's questions about the proceeds crime as well. There are a number of existing non-statutory schemes for payment of legal aid in a manner akin to criminal legal aid, but not quite. One of those includes judicial review or plenary proceedings where rights are at stake and, in particular, where liberty is at stake. The existing arrangement is that it is a non-statutory scheme that depends on a recommendation from the court, which is not actually issued until the end of the case, if it is issued.

An Cathaoirleach

Is that habeas corpus?

Mr. Seán Guerin

That is slightly different, but it is a similar scheme. One of our submissions is that all of these ad hoc non-statutory schemes should be brought under the umbrella of an overarching scheme. The general scheme reflects, in a lot of ways, the 1962 Act, which drew very heavily from the English Poor Persons Defence Act of 1903. It is 120 years later and it is probably time that some thought was given to incorporating under the head of criminal legal aid all of the existing applications where the State acknowledges some responsibility to pay for legal aid for people. One of the difficulties with the existing scheme is, as the Chair has said, that although there are lawyers available to take the cases, they have to put a lot of work and time into those cases without a guarantee of payment.

An Cathaoirleach

If they win, however, they will get costs which could be substantial in a judicial review.

Mr. Seán Guerin

It has to be possible that people are encouraged to take cases that they might not win, but where they nonetheless think there is an important right at stake which needs to be argued and heard in court.

An Cathaoirleach

Would the view of the Bar Council of Ireland be that it should really come under a statutory rights scheme as per legal aid, rather than being on the-----

Mr. Seán Guerin

We say that it should be a European convention-compliant process. Cases which are not necessarily seen as criminal actions in the Irish legal system but which attract Article 6 convention protections should all be provided for under a single statutory scheme. That would include the Proceeds of Crime Act, where a person might have limited resources. Very often, proceeds of crime, when they are found, are in possession of quite vulnerable people who do not actually own them but are holding them for others. Those people have rights as well. They need to be protected and have someone act for them in the course of those proceedings. There is obviously a second aspect to proceeds of crime, which is whether or not they can be considered in terms of a legal aid application. That is obviously a different issue. It is important to emphasise that solicitors and barristers cannot receive the proceeds of crime in payment for their services. The Criminal Justice (Money Laundering and Terrorist Financing) Act applies to us as well. There is no realistic possibility of a person who is in possession of proceeds of crime being able to apply those to get the benefit of legal services in this country. That just is not workable. We make the point in our written submission that the legal aid process should not be used as a sort of substitute for the proceeds of crime regime. There is a statutory scheme for recovery of proceeds of crime. If there is evidence available to justify the making of an application under the scheme, then the scheme should be availed of. You cannot use, or you certainly should not use, an application for legal aid in respect of a person who is facing serious criminal charges as a sort of a halfway house or a cheaper way, in a sense, of making a proceeds of crime application. They are very different things.

An Cathaoirleach

Mr. Condon has his hand up. We are out of time but I will let him come in because he does not normally do so in his capacity as an observer. I am sure he has something to add to the argument, so I invite him to do that.

Mr. Kevin Condon

It is just on that point. The scheme, in fact, puts those non-statutory schemes on a statutory footing. They have been non-statutory for some time. It is part of some of the thinking behind the Bill that it is the Legal Aid Board that actually operates some of those schemes, including the ad hoc schemes, and to that extent the scheme extends the operation of the entire scheme to them. Certainly, whether it is the Garda station legal advice scheme or the Criminal Assets Bureau ad hoc legal aid scheme, they are given statutory footing here, subject to the Attorney General's advice. That is certainly the intention behind it.

An Cathaoirleach

That is good to know. We are going to move on to the next slot, and Deputy Daly.

Deputy Pa Daly

I welcome the witnesses. I should declare that I have worked as a solicitor for over 20 years. During the course of those 20 years, I have benefited from the criminal legal aid scheme. I think it is fundamentally important that not only should defendants get a fair a speedy trial, but they are entitled to have a robust defence. Deputy Costello previously made the point about the three-strikes-and-you-are-out rule and those kind of arguments that are made. There are some very welcome aspects to this general scheme , including, for example, head 11 on the duty of the court to inform an individual that he or she has an entitlement to legal aid. It is important that that is offered. Over the years, I have seen judges who have refused or delayed legal aid because they did not like the look of the defendant. Perhaps they did not like the look of the solicitor or had a personal thing against them. There could be all sorts of reasons for it. As Senator Ward said, it is all very well to be complaining about money being spent on the criminal legal aid system, but if your brother or a family member is charged with something like careless driving causing death or a newer offence which goes to the Circuit Court and faces very serious consequences, it is very important that the person involved has the right to legal aid.

That leads me on to a concern I have about head 29. I would be interested to hear what some of the witnesses think about the fees for engaging expert witnesses and the possibility of a judge not having a role in that. For example, if you are charged with a serious offence, you may very well need to engage a whole load of different witnesses in order to defend that properly. It is important that a judge can listen to submissions that are made and make a decision. I certainly never saw, over the years, any judge granting the involvement of an expert witness without considering it appropriate in the circumstances. Many a time I saw in the courts individuals who clearly urgently needed a psychiatric assessment in cases where I would have had doubts as to whether they could properly give instructions and whether they could deal with the case. It might have been in their interest to deal with the case quickly but at the same time, you have to decide for yourself whether that person has the capacity to assess the evidence, take advice and be given advice. The Legal Aid Board would need huge resources for fees for the engagement of expert witnesses under head 29, and also in a situation where a person is appealing a decision to grant legal aid.

The delays seen in family law cases on local legal aid boards, where people sometimes have to wait for months, would ring alarm bells for me. Any extra layer of administration is not good, especially when we are dealing with defendants, in all types of cases, who may lack capacity. They may be illiterate or have severe language and communication difficulties.

Turning to head 47, one of the witnesses spoke about expanding the types of cases where legal advice would be granted. Certainly, a complainant in a section 4 assault case should have the same entitlement to legal advice as somebody who is the victim of a sexual assault. I think that is a given and I agree there should not be a means test for that. What problems do Ms Counihan and Dr. Saidléar see with the advice currently given to complainants by the prosecution team in such cases? More generally, is there potential for any conflict between barristers and solicitors who are dealing with the prosecution and a legal adviser who may have been involved before a complaint was even made? Do the defence solicitor witnesses have any comment to make about someone receiving legal advice before a complaint has been made, or do they not see any difficulty in that regard? Overall, are there concerns about any additional delays or administrative burden being put onto the system?

I should add I welcome head 45 in respect of advice given in Garda stations. I have found that to be quite bureaucratic over the years.

Ms Sara Phelan

Briefly, I might comment on the expert witness question. The Bar is very much of the view that whether an expert witness is required is a matter for the administration of justice. Therefore, it is very much a matter for the judge to decide whether an expert witness is required and whether legal aid should be extended for an expert witness.

Ms Caroline Counihan

The Deputy asked whether we have observed any problems with legal advice given by the DPP team. The issue for us is that the DPP team gets involved at a much later stage. People often need advice very soon after the offence happens, when they are making up their mind as to whether to report it to An Garda Síochána. That is one area where I have personally dealt with an awful lot of queries regarding how something or other works, what the consequences will be and how the person can protect themselves. There is a whole raft of questions and the extraordinary thing is that, no matter how long I do my job, something new comes up every week. You would be amazed at the variety of questions. People have a lot of questions at that stage, perhaps because they are very anxious in the immediate aftermath of the offence.

Another stage where people need a lot of advice and support is where the DPP has declined to prosecute in their case. As the Deputy will know, they can request a review. To put together a decent application or request for review, they really need legal advice and input into that and they need to know where they are going.

The Deputy also raised the possibility of conflict between advice given at an early stage by an independent legal adviser and advice or information that might come to them later from the prosecution team. To my mind, if the independent legal adviser is doing their job competently, they will lay out the function of the prosecutor and explain that that person, who represents the State, may not have the same interests as the victim at every point. Sometimes, the victim does not have much choice except to accept the decision, but at other times the victim can have input into a prosecution and the decision that is going to be made.

It is about telling it the way it is at an early stage and saying that if, for instance, the person is terrified that there is going to be severe retaliation, they will know what to do, where to raise their concerns and what, in broad terms, the criminal justice system can do, whereby there may be an application for stricter bail conditions or, if there is the potential for very severe intimidation, there might be a revision of the bail conditions to the extent that the accused will end up in custody. It is not about setting oneself up in opposition to the prosecution team but sometimes, as the Deputy suggested, interests do diverge and there is a right way and a wrong way to deal with those divergences.

Thankfully, there are not many and sometimes, in a couple of well-known instances, it has been possible in the sexual violence world to have actual independent legal representation, such as on the issue of the disclosure of counselling records. To my mind, it is about telling it as it is and also explaining that, as the case moves forward, if there is to be a prosecution, it is the prosecutor who will make the decisions, or at least the DPP through the prosecutor appearing in court. The victim can feed into some of that decision-making, and if they have concerns about their safety or about their terror of appearing in court, they should certainly bring that to the attention of the prosecution team.

In real life, it works out, and I have been that person for many years. It is about telling it like it is and realising these decisions of prosecutors, which tend to arise in the initial stages, are for prosecutors, not for the victim. We can by all means advise the victim to raise these concerns but cannot do more than that.

Ms Fíona Ní Chinnéide

The Deputy raised an important issue regarding mental health needs and access to assessment by people who are before the courts on criminal justice matters. The committee is likely to be very familiar with statistics that tell us about the high prevalence of mental health issues among the prison population, but this was echoed in research undertaken by the Probation Service in 2021. It found that at least 40% of adults on a probation supervision order, compared with 8.5% of the general population, presented with symptoms indicative of one mental health problem, while 43% experienced active symptoms of mental health problems. We see again and again that there is a higher prevalence among women, comprising in the latter case 57% of women against 40% of men. A total of 10% experienced symptoms indicative of serious or severe and enduring mental health problems, while 56% had had some form of mental health assessment or intervention in the past. Again, that comprises 70% of women and 52% of men. Approximately half of the people supervised by the Probation Service in the community who had mental health problems also presented with one or more of either alcohol or drug misuse, difficult family relationships or accommodation instability. The Dublin homelessness unit within the Probation Service has a caseload of more than 500 today but that figure was in the region of 380 to 400 just a year ago, so the numbers are rising.

We welcome the attention given to that issue. We are also cognisant of the high-level task force on the mental health of people in criminal justice matters and we are forming part of the implementation of those recommendations.

Deputy Pa Daly

When I had someone who was remanded in custody, I always found getting a psychiatric report difficult. It used to take weeks, or even months, to get a proper report in order that I could deal with a case. Has that situation improved since the last election?

Ms Fíona Ní Chinnéide

Does Ms McCormack have information on this?

Ms Leah McCormack

I do not believe that there has been any significant improvement. It has remained much the same. It is important to have access to the proper expert witness assessments.

Mr. Seán Guerin

There are significant delays in getting psychiatric reports before trial in the Central Criminal Court. This is causing subsequent delays, with cases frequently being adjourned at that stage. I imagine the position is similar at the earlier stage in the criminal process that the Deputy mentioned.

Mr. Kevin Condon

I will clarify something about the expert witness scheme. It is administered by the Department. The only change being mooted is that it be administered by the Legal Aid Board, so there would be no change in how the court administered that aspect of legal aid.

An Cathaoirleach

In practice, if someone required an engineer for a technical examination of a crime scene, would that application be made to the judge for assigning to the Legal Aid Board?

Mr. Kevin Condon

The judge can make a determination on it. In practice, though, the Department deals with the solicitor concerned, the invoice-----

An Cathaoirleach

Directly.

Mr. Kevin Condon

-----and the application. It is just that piece of administration that we are contemplating moving over to the Legal Aid Board.

Mr. Seán Guerin

Head 29(1) reads: “The Board may authorise”. That decision of the board is appealable under subhead (3). This language gives the impression that a discretion is intended to be vested in the Legal Aid Board as to whether the payment of fees for an expert will be authorised under the scheme. That is why we have expressed a concern. However, if the intention is otherwise, as has been indicated, then it may be the case that the language can be addressed as part of the legislative process.

An Cathaoirleach

That concludes Deputy Daly's slot. I will put a question before starting the second round. Senator Ward has indicated for the second round and may be the last member offering. The session is due to conclude at 7 p.m. anyway, so we are into the last round in any event.

I will make a couple of points. The case made by a number of the witnesses concerning the cuts to legal aid fees for practitioners was a strong one. It has been made well again today and has been made many other times also. A number of submissions pointed out how this was not about a fee increase, but a fee restoration. That is an important point to make. It is difficult to comprehend how, as far as I am aware, every other profession that is subject to State funding has been restored except for legal aid practitioners in the criminal sphere. That seems unfair and unanswerable. Something that I imagine must stick in the craw of prosecutors is that those instructed by the DPP voluntarily took a hit at the time in solidarity with defence colleagues. It has not been restored either. It is not right that either side of the house, defence or prosecution, should have taken a hit, but I imagine that it must be particularly galling for those who put their hands up and, in a time of need, said they would do their thing only for it not to be reciprocated. That is disappointing. Those points were well made. I hope that we see some action soon. This committee will be making recommendations on the matter in due course. I think I know what they will be. We will see what colleagues think when we meet, but I can be fairly confident on that.

There was a suggestion in some of the submissions regarding the direction of travel at the criminal Bar. My next question applies to solicitors if the matter affects them as well. Anecdotally, has there been a decrease in the number of people practising criminal law? Are people not going into it or, if they go into it, do they not stay there or do they have mixed practices for a number of years? The Criminal Courts of Justice being a little bit away from the Four Courts may be having an impact. I am told that, in days of old, one would run from a jury trial to a defamation trial and back again. Both have juries, actually, and we will keep juries if this committee has its way, but that is a different point. There may be a separation between courts now, though. In the Circuit Court down the country, that is not the case because civil and criminal cases are going on upstairs, downstairs and everywhere else. To what extent is this issue seeping through into practice? Is it having a detrimental effect on the numbers available to take instruction, be that defence or prosecution?

That is my first question and we will start there, as I have a couple of other questions. Mr. Morrin has not replied yet, so I will take him now, after which I will invite Ms Phelan. Anyone else who wishes to comment can do so afterwards.

Mr. William Morrin

I can speak from a lived experience of that. I no longer practise criminal law because it is not economical for me to do so. We have been discussing the restoration of fees. Efficiency is a problem as well. Barristers in the District Court provide the efficiency to generate cases through the courts. Like triage, cases start in the District Court. However, when barristers like me are not getting paid or are not getting paid enough, they leave. I have left.

An Cathaoirleach

Not getting paid at all?

Mr. William Morrin

Hands up, I had to threaten Revenue, via a solicitor’s firm, because it would not pay me. My lived experience is that barristers cannot afford to stay in the District Court. The Cathaoirleach is right about if cases were heard in the Four Courts. I have been told anecdotes of barristers being handed briefs by colleagues because they were too busy. The courts were separated, though, and people are either in the Criminal Courts of Justice or the Four Courts now and there are no handovers. That limits a young barrister’s earning potential.

An Cathaoirleach

From mixed practice.

Mr. William Morrin

What other profession would have a barrister leaving the Four Courts and going down to a restaurant or bar to work as a waiter or waitress? That is the reality for these people. I am blessed to have a pension from another profession and can afford to stay, but my pension was subsidising the free legal aid scheme because I was working in the District Court for nothing. Such a situation is not tenable.

Under head 19(7), a solicitor can make a written application for counsel. If the word “written” were removed, the solicitor could make an application to court for counsel in the District Court. This is because there are not enough criminal solicitors practising. Last night, I received a text from a criminal solicitor who was giving it up, it had grown so uneconomical for him. Criminal solicitors are having a problem. They are using barristers to shore up their offices.

An Cathaoirleach

It is affecting both professions.

Mr. William Morrin

Most definitely. If a solicitor could make an oral application for a barrister to the court and the barrister got paid directly by the system, we would solve the problem.

An Cathaoirleach

After Ms Phelan, I will call Mr. Donagh and anyone else who indicates.

Ms Sara Phelan

This is not just anecdotal. We have the data to show that two thirds of our criminal practitioners leave the criminal Bar within six years of commencing practice there. It has been classified as a brain drain in some ways. Having invested time, energy, commitment and education in working as criminal law practitioners, not only do they suffer when they leave, but so do the public at large and the system because all of that expertise is being lost. Our data show that only one third remain after approximately six years. This is a very significant concern for us, which I addressed in my opening statement in terms of the knock-on effects on the people of Ireland and the rule of law in general.

An Cathaoirleach

I wish to drill into those figures a little more. Perhaps Ms Phelan does not have the data with her, but do the one third of barristers who remain practising criminal law after six years typically supplement that work with civil practices, are they on the circuit more because it is easier to do both or do they get lucky and get busy criminal practices very quickly? How do they manage to survive beyond year six?

Ms Sara Phelan

I might need to revert to the Chair on that, but perhaps Mr. Guerin can assist.

Mr. Seán Guerin

Even after six years, the situation can still be difficult for people. Many colleagues are still doing other work after six years, be it lecturing or tutoring in law, editing law reports or working outside the legal field entirely.

It used to be the case that three or four years would be sufficient to get you started. They would be three or four difficult years. The reality now is that it can take ten years or more before people-----

An Cathaoirleach

Is that in the criminal sphere?

Mr. Seán Guerin

It is. It can take ten years or more before people can make an independent and sustainable living at the criminal Bar.

An Cathaoirleach

That is very damning.

Mr. Simon Donagh

I agree with what Mr. Guerin and Ms Phelan have said. The only thing I might throw into the mix on that point is the way the legal aid scheme works in the District Court for barristers who practise there. They get paid in one of two ways. There is a procedure, since the Supreme Court decided a case called Carmody v. The Minister for Justice, Equality and Law Reform and Others, whereby if a case is sufficiently serious to warrant a solicitor and barrister, an application can be made and the presiding judge will make a decision as to whether the case is that complex. That happens in by no means all cases. It is quite exceptional. The other way it works is that the fees a solicitor gets for the day are apportioned in an ad hoc, casual arrangement between barristers and solicitors. The refresher fee in the District Court for a solicitor, for example, is €50.40. We can all do the maths. Half of that is not much. I cannot speak on behalf of the solicitors' profession but if that arrangement stays in place and barristers get half of what they get, restoration of their fees would address the issue. It is, of course, for solicitors to make that case. It is a similar issue insofar as their fees were also cut.

An Cathaoirleach

Mr. Donagh has touched on something I had not thought of but since he raised the issue, it is pertinent to inquire. Is the scheme arising from the Carmody decision, whereby a certificate for counsel can be awarded in the District Court, statutory or non-statutory?

Mr. Simon Donagh

It is deliberately non-statutory flowing from the Carmody decision itself. The argument in Carmody was that the Legal Aid Act was unconstitutional because it did not provide a mechanism for counsel in the District Court.

An Cathaoirleach

It is a matter of custom and practice as opposed to a statutory scheme.

Mr. Simon Donagh

It is not quite custom and practice. The Supreme Court expressly stated in its judgment that it was not striking down the Act because it does not provide for that procedure. It instead just flows as a free-standing constitutional-----

An Cathaoirleach

Perhaps Mr. Condon could answer the following point. We talked a few minutes ago about other non-statutory schemes being wrapped up into a new provision. Is this one of them? Would the District Court certificate for counsel scheme be included in the new heads?

Mr. Kevin Condon

That is exactly the case. I am consulting a note. The purpose of subhead 4 is to reflect the position following the Supreme Court judgment in Carmody. It is intended to deal with that situation where counsel is assigned and for it to be put on a statutory footing, the same as the other schemes.

An Cathaoirleach

That is good to know. I have a couple of other points to make but out of respect for the time, I will limit myself to one. It is outside the remit of the criminal area but I am going to use the Chair's prerogative to throw it out anyway because there is an overlap. It strikes me that childcare cases are an area that could benefit enormously from legal aid reform. We are dealing with a situation in such cases where the fundamental parental right is being challenged and, in many cases, removed. That is the whole idea of childcare proceedings where somebody is being separated from their child. As far as I understand the position, there is no provision at the moment for legal aid to be assigned from the Bench. There might be one or two circumstances where it has become a practice but it not done officially. In fact, it is seldom done. As I say, I am aware of one or two judges who might ask a local solicitor to take on a particular case but that is very much the exception. It strikes me that of all the people who need to be assisted in access to legal aid, by definition, people whose struggles in life so great that their children are going to be taken away from them because they cannot manage parental duties are probably unlikely to be attend at a legal aid centre, complete a form, have a consultation and arrange their affairs in such a way as to allow them begin to be represented. The consequence is that in respect of one of the most fundamental constitutional rights of all, trial before a court, there is nobody being remunerated to represent the person on the other side of that argument, namely, the parent. There is a scheme whereby if people have the wherewithal to apply for a legal aid certificate, they can be represented through the legal aid scheme but, as I have said, many people in those situations do not have the wherewithal to organise that. It strikes me that a quick fix for that situation would be to allow a judge from the Bench to assign legal aid to a local solicitor, Mr. X or Mrs. Y, in the same way as already happens for criminal legal aid. That has struck me in the past as a glaring gap in the constitutional framework because of the rights that are being exercised, and in respect of the European Convention on Human Rights, ECHR, for that matter. I would be interested in the views around the room on that point. Does anybody agree or disagree with me and if so, why?

Ms Sara Phelan

I agree with the Cathaoirleach. It is a fundamental right where a child is being removed from their parents. That is one of the most serious issues of all. I know that the civil legal aid scheme is under review at the moment. I am part of the civil legal aid review group. Certainly one of the issues that the group is looking at, without divulging any discussions, as such, is the fact that vulnerable individuals need to be provided for within an expanded civil legal aid scheme. To the best of my knowledge, and I stand to be corrected on this point, if a vulnerable parent in those circumstances has the wherewithal to go to a law centre, the parent would not have to pay a contribution to the law centre. It is one of those exceptional cases at the moment where the right is so fundamental that a contribution is not required. I can say that in the context of the civil legal aid review group, those very vulnerable individuals are being considered.

An Cathaoirleach

That is good to know. I thank Ms Phelan. Would Dr. Saidléar like to come in on that point?

Dr. Clíona Saidléar

This is not an issue we have prepared for today. I will, however, add anecdotally that it is one of our concerns and is certainly something we will be focused on. I would include in that private family law and access there. Our interest, of course, is where there is sexual violence, in particular. Child sexual violence is an issue that is a part of some of those cases. We know anecdotally that many people are not able to access supports. Of course, such cases go on for years and years.

An Cathaoirleach

That is another very good point. That is excellent.

Senator Barry Ward

I raise an issue that I do not think has been addressed because I do not think anybody can address it, that is, how the Legal Aid Board is going to achieve greater efficiency. Reference was made to a written application, for example, by a solicitor in the course of proceedings where he or she feels that counsel is required. I do not understand, for example, why that needs to be written. It is done orally at the moment. Every court proceeding is recorded digitally. Reference was made by the Bar Council to the experience of civil practitioners in dealing with the Legal Aid Board and "efficiency" is not the first word that would spring to mind in dealings with it. Does anybody have a basis on which they believe that taking this from the Department of Justice and putting it into the hands of the Legal Aid Board is going to achieve efficiencies?

An Cathaoirleach

I do not think it is a good idea.

Senator Barry Ward

Okay, thank you. I will refer to what Mr. Donagh said about the issue in head 19 and guarantees for a person before a court. A legal aid certificate covers solicitor only, in essence, and can be added to. Should there be a guarantee for a person who is going forward on indictment that they would get one counsel or if they are going forward on indictment to the Central Criminal Court that they would get two counsel?

Mr. Simon Donagh

That was one of the questions asked earlier by the Senator's colleague, Senator Ruane. She was querying why it is that someone might get two counsel instead of one. The Ladybird version of it in Byrne and McCutcheon on the Irish Legal System sets out the very good general rule that in the District Court, you would normally get a solicitor; in the Circuit Court, you would normally get one barrister and one solicitor; and in the Central Criminal Court, you would normally get two barristers and one solicitor. That simply reflects that as you go up the court hierarchy, the threshold and seriousness of cases goes up. That is a presumptive minimum entitlement. As the Senator knows, the Circuit Court deals with almost every indictable offence with the exception of rape or murder so there is an obvious need for discretion. In any given Circuit Court case, there may well be a need to expand that entitlement, the obvious example being offences that carry maximum life sentences, such as drug offences and complex financial crime. Even though they are not in the Central Criminal Court, such cases clearly warrant two counsel. Likewise, many cases would require multiple counsel.

Senator Barry Ward

Is it Mr. Donagh's position that as a minimum, there should be a guarantee of counsel for anyone going forward on indictment?

Mr. Simon Donagh

It absolutely is.

Mr. Seán Guerin

That is the position under the 1962 Act. For some reason, the Bill does not reflect that.

Senator Barry Ward

Do these heads undo that?

Mr. Seán Guerin

They do at present. I note that the Department has previously indicated it is not its intention to reduce in any way the entitlement to legal aid but, on the face of it, the Bill permits a reduction in entitlement to legal aid by removing the presumption contained in the 1962 Act.

Senator Barry Ward

I have a question on what was said about the legal advice before a matter goes to Garda investigation and I am not saying that this would happen. Is there a concern that at a later stage a defence team might construct a narrative that would suggest that that advice had tailored the manner or content of the complaint? We have seen a lot of development in, for example, the disclosure of medical notes and things like that, of which I am sure our guests will be aware. While I do not know whether this material is covered by legal advice privilege, is there a concern, however well minded the provision of providing that advice at an early stage might be - and I know Ms Counihan talked about it in the context of "here is how this is going to unfold" as opposed as to "here is what the narrative is" - that there is a danger that it transpires in a different way later on in the process?

Ms Caroline Counihan

It is something I try very hard to always keep in mind and it is principle No. 1. It is not my job to coach the witness or tell the witness what to say. It is my job to make sure that they know what they are entitled to in terms of victims' rights, and that they know at which points and in what situation they may seek support from the prosecution team, members of An Garda Síochána and the courts themselves. It is for me to lay it out for them primarily. I am absolutely not there to coach them and I do not spend time-----

Senator Barry Ward

I have no doubt that is true. Is Ms Counihan worried that somebody couches it in terms two years later at trial that that is what happened?

Ms Caroline Counihan

I just think that some things have got to be sacred. Surely this is a situation where, in the absence of clear evidence of utter bad faith on my part or somebody in my role, legal professional privilege should apply. I should be trusted as a professional. I absolutely do not lead anybody. I listen to them, try my best to answer their questions about the procedure and I try to say where there are options. Amazingly enough, sometimes there are options and I say "this is what you could suggest", "this is something that you must bring back to the prosecutor" or "this is something you could talk to the garda on the case about as only they will know the answer". I do not have detailed knowledge of the case. As strange as it may sound, I really do not get into what happened, the case or the evidence. It is really much more about the framework and how it all works, and to try to address people's concerns. Most of the time it is a fear like "he will do something to me before it ever gets to court and what can I do about that?", and then it is the terror of giving evidence in court. They are two things that I hear an awful lot about. Sorry, but I probably sound like I am teaching my grandmother to suck eggs.

Dr. Clíona Saidléar

To add to what Ms Counihan has said, this is not in any way novel to us. I cannot obviously guarantee that in future barristers will not be barristers and they will not do what barristers do best, which is their job. We have been doing it for a very long time and, indeed, we have been providing legal advice just as Ms Counihan has outlined. We also provide a number of other things. From our point of view, this is about being survivor centred, and about survivors' and victims' rights. There are set protocols. For example, with the sexual assault treatment unit, SATU, we have what we call the three pillars of the Garda forensics side, the health side and then the advocacy side. We have written protocols about how the different professions operate together. We have not really got where we are acting here in terms of legal advice. We also do court and Garda accompaniment. We have run the national programme of court and Garda accompaniment for 15 if not 20 years so this is not novel to us at all in terms of how we know the role we are playing and how we do not get ourselves into anything; that is about training and having a national standardised training programme.

I want to reiterate something Ms Counihan said earlier. It is the case that for the victim of sexual violence it is not their case and so there will be times, which we hope are rare, when the interests of the State in prosecuting will not align with the interests of the victim and the victim has rights to have that legal advice.

Senator Barry Ward

Can I make one comment?

An Cathaoirleach

Yes.

Senator Barry Ward

On head 29 and the expert witness procedure, I agree with what the Bar Council has said about the way it is currently worded. I also think that the practical experience of many practitioners has been extraordinarily frustrating because when you are dealing with a body that is not in the court, as opposed to a judicial figure who has a much greater understanding of how a trial runs and what might be required, there is an element of box ticking that can be very frustrating when you are trying to get sanction for an expert witness. There is an element, with the greatest respect to the Civil Service, which has served this country incredibly well, of Civil Service shut down and an approach of "we will not go beyond this point" even though it might only be a small amount of money to secure, for example, often an expert from abroad because they are not available in this country. I would be very wary of what is in head 29 and making sure that it is not inflexible and more frustrating than it currently is.

An Cathaoirleach

We will note that point, Senator.

Senator Barry Ward

I do not want to deny an opportunity for Mr. Condon to respond.

Mr. Kevin Condon

No, I accept that and the clarification I gave earlier is I hope the appropriate one.

Obviously the expenditure potential on this is absolutely very significant. It is that element of control that is exercised by the Department when it needs to be. I think the "may" in that head was probably intended to reflect the sense that some of this invoicing can be exceptionally high and the Minister has to keep an eye on the outlay in terms of that. It does not change the court decision on the matter. As I say, the Legal Aid Board will take it on from there.

An Cathaoirleach

I will leave the discussion there as we must do a little housekeeping in the remaining time. I thank all of our witnesses. They can stay because there are only one or two housekeeping matters to be dealt with.

I thank our guests for their submissions and contributions. We have had a very good constructive session. We will now proceed to prepare a report, which is what we always do following deliberation. We will consider the feedback that was given today and, indeed, in the written submissions and produce a report. The report will then go to the Minister and will feed into the next Stage of the Bill. This process does contribute to better quality legislation. That is the theory and most of the time it works.

Is it agreed that we publish all of the opening statements on the committee's website? Agreed.

There is no other business but I want to put it on the record that there is no meeting of the joint or select committee next week because the budget will take place on this day next week. The next meeting of the joint committee will be at 4 p.m. on Tuesday, 24 October when, in public session, we will have an engagement on policing matters with representatives of the Garda Representative Association, and the Association of Garda Sergeants and Inspectors, AGSI and Mr. Tony Gallagher who is a retired Garda inspector, and representatives of the Restaurants Association of Ireland on matters around policing, law and order, street crime and current issues within An Garda Síochána. The next meeting of the select committee will take place at 4 p.m. on 17 October when we will debate the Domestic, Sexual and Gender-Based Violence Agency Bill 2023. Obviously notices will go out to the members, etc. about the meetings but I wanted to put the information on the record before we close today.

The joint committee adjourned at 7 p.m. until 4 p.m. on Tuesday, 24 October 2023.