Dáil Éireann Debate, Wednesday - 18 December 2013
174. Deputy Michael McGrath asked the Minister for Justice and Equality if there is a limit to the number of occasions a person can avail of free legal aid; and if he will provide details of the means testing system in place prior to the sanctioning of free legal aid. [54569/13]
View answerAs the Deputy may be aware the provision of legal aid falls within two separate categories, i.e criminal legal aid and civil legal aid. Details in respect of each category are as follows:
Civil Legal Aid
The Civil Legal Aid Act (as amended) does not place a limit on the number of times a person may avail of civil legal aid. The granting of civil legal aid is the responsibility of the Legal Aid Board and civil legal aid is only granted in cases where the application meets the merits test as set out in the legislation. In addition, the applicant must also be financially eligible to qualify for the service. Currently, this means that an applicant cannot have disposable income of more than €18,000 per annum and disposable capital assets of more than €100,000. Disposable income and capital are calculated in accordance with the Civil Legal Aid Regulations. More detailed information on financial eligibility and the merits test for civil legal aid is available on the Legal Aid Board's website, www.legalaidboard.ie.
Criminal Legal Aid
The Criminal Justice (Legal Aid) Act 1962 provides that free legal aid may be granted in certain circumstances for the defence of persons of insufficient means in criminal proceedings. Under the 1962 Act, the courts, through the judiciary, are responsible for the granting of legal aid. An applicant must establish to the satisfaction of the court that their means are insufficient to enable them to pay for legal representation themselves. 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. I have no function in these matters which are determined by the judiciary. The Act further provides that the court may require an applicant 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.
The Deputy will appreciate that an accused person who faces serious charges is entitled to a fair trial and the presumption of innocence and if they cannot afford to pay for legal representation there is a right to legal aid. Under the Constitution, the State is obliged to provide an accused person with the means to obtain appropriate legal representation. Moreover, the European Convention on Human Rights provides that every person charged with a criminal offence is entitled to defend themselves in person or through legal assistance of their own choosing or, if they have insufficient means to pay for legal assistance, to be given it free when the interests of justice so require. The Deputy will also appreciate that the Criminal Legal Aid Scheme must operate with due regard to these rights and that any unreasonable block on legal aid could give a convicted defendant an avenue for appeal or prohibition of the prosecution. The overriding concern is to ensure that no risk arises in relation to the prosecution of persons charged with criminal offences before the courts. There is no limit to the number of occasions a person can be granted legal aid under the Criminal Legal Aid Scheme.
A new Criminal Legal Aid Bill is planned to update and strengthen the system of granting legal aid including transferring responsibility for the administration of the Scheme to the Legal Aid Board. Consideration is being given to including in the Bill provisions to, inter alia, 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. Provision to give power to the Legal Aid Board to recover the costs of criminal legal aid or to make application to a court to revoke a criminal legal aid certificate are also under consideration. These provisions must have regard to a person's rights to the presumption of innocence, to a fair trial and to be given legal aid, where appropriate.
