Pat Deering
Question:437. Deputy Pat Deering asked the Minister for Justice and Equality the criteria for qualification for free legal aid and if he considers that the criteria needs to be changed. [53745/12]
View answerTuesday, 4 December 2012
Questions (437, 445)
John O'Mahony
Question:445. Deputy John O'Mahony asked the Minister for Justice and Equality his plans to reform the granting of free legal aid; and if he will make a statement on the matter. [53938/12]
View answerWritten answers
I propose to take Questions Nos. 437 and 445 together.
As the Deputy will be aware, legal aid services within this State are divided into two separate categories, namely civil legal aid through the Legal Aid Board under the provisions of the Civil Legal Aid 1995, and criminal legal aid through the courts and the judiciary under the provisions of the Criminal Justice (Legal Aid) Act 1962. I propose to take each in turn as set out below:
Civil Legal Aid
In the first instance it should be noted that in the vast majority of cases, civil legal aid is not free. Persons who receive civil legal services are generally obliged to pay a financial contribution.
The criteria for qualifying for civil legal aid are set out in sections 24 to 29 of the Civil Legal Aid Act 1995 and the Civil Legal Aid Regulations 1996 – 2006. In summary, the financial eligibility threshold at the moment is that a person’s disposable income must not exceed €18,000. Disposable income is calculated by taking a person’s gross income (the Board does not treat certain State payments that are made for the benefit of another person as income) and deducting certain allowances. The main allowances are an allowance for a spouse, each child, child care costs, rent or mortgage, income tax, PRSI and USC payments. There is also a capital threshold for eligibility. disputes concerning rights and interests in or over land, small claims and defamation. There is a general ‘merits’ test for getting legal advice and a more specific test for getting legal aid (representation). Legal aid can only be granted for matters before the District, Circuit, High and Supreme Court and the European Court of Justice. In addition the Minister for Justice and Equality may prescribe any other court or a tribunal for the purpose of making legal aid available. The only tribunal that has been prescribed to date is the Refugee Appeals Tribunal. At present, I have no plans to change the qualification criteria for civil legal aid.
Criminal Legal Aid
The Criminal Justice (Legal Aid) Act, 1962, which is the primary legislation covering the operation of the Criminal Legal Aid Scheme, provides that free legal aid may be granted, in certain circumstances, for the defence of persons of insufficient means in criminal proceedings.
Under the Act, the courts, through the judiciary, are responsible for the granting of legal aid. An applicant for legal aid must establish to the satisfaction of the court that his/her means are insufficient to enable him/her to pay for legal aid him/herself. This is purely a discretionary matter for each court and is not governed by any financial eligibility guidelines. The 1962 Act specifies that the court must also be satisfied that, by reason of the "gravity of the charge" or "exceptional circumstances", it is essential in the interests of justice that the applicant should have legal aid. However, where the charge is one of murder or where an appeal is one from the Court of Criminal Appeal to the Supreme Court, free legal aid is granted merely on the grounds of insufficient means.
An applicant for free legal aid may be required by the court to complete a statement of means. It is an offence for an applicant to knowingly make a false statement or conceal a material fact for the purpose of obtaining legal aid. Such an offence carries a penalty of a fine or imprisonment or both.
Under the Constitution, the State is obliged to provide an accused person with the means to obtain appropriate legal representation. Also, it must be borne in mind that Article 6(3)(c) of the European Convention on Human Rights requires that every person charged with a criminal offence is entitled to defend himself in person or through legal assistance of his own choosing or, if he has insufficient means to pay for legal assistance, to be given it free when the interests of justice so require. It is with due regard to these clear rights that any criminal legal aid scheme must operate.
Officials of my Department are developing a new Criminal Legal Aid Bill to update and strengthen the system of granting legal aid, including transferring responsibility for the administration of the Scheme to the Legal Aid Board. As currently drafted, the Bill will regulate better the taking of statements of means, increase the sanction for false declarations, allow the Board to verify the means of applicants and to prosecute cases of abuse. The transfer of responsibility arrangement to the Legal Aid Board reflects the practice in other jurisdictions where one agency deals with all aspects of legal aid and where it is thereby possible to bring a more dedicated focus to the management and delivery of all of the legal aid schemes. There is still a significant amount of work to be done in developing the Bill but I would hope that it would be possible to publish it during 2013.
The Deputy will also be interested to know that the fees payable under the Criminal Legal Aid Scheme have been subject to three separate reductions over the past few years and some structural changes were also introduced to the fees payable in the course of 2011. To date in 2012, expenditure is €46.16 million which represents a welcome decrease of approximately 10% over the same period in 2011. A number of measures aimed at achieving greater efficiencies in criminal proceedings are being implemented in collaboration with the relevant agencies and with cooperation from legal practitioners.