Wednesday, 11 November 2015

Questions (105)

Terence Flanagan

Question:

105. Deputy Terence Flanagan asked the Minister for Justice and Equality if she will address a matter (details supplied) regarding sentencing and legal aid; and if she will make a statement on the matter. [39706/15]

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Written answers (Question to Justice)

As the Deputy is aware the Criminal Legal Aid Scheme is a vital element of the criminal justice system. 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. An applicant's previous convictions are not a criterion for access to legal aid under the Act. I have no function in these matters which are determined by the judiciary.

These provisions must have regard to the right to a fair trial, including the provision of legal aid where appropriate, which is a Constitutional right upheld by the courts in a number of judgments. The Supreme Court ruling in the case of State (Healy) v Donoghue [1976]I.R. 325 effectively determined that the right to criminal legal aid is, in circumstances which are quite wide in practice, a Constitutional right. Article 6(3)(c) of the European Convention on Human Rights states that "Everyone charged with a criminal offence has [the right] to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require". As the Deputy will be aware, an accused person is entitled to a presumption of innocence and legal representation and any obstacles to obtaining necessary legal aid which were found to be unreasonable could give a 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.

I can inform the Deputy that a new Criminal Legal Aid Bill is currently being drafted to update and strengthen the system of granting legal aid including transferring responsibility for the administration of the Scheme to the Legal Aid Board. Legislative provisions under consideration include provisions to, inter alia, regulate better the taking of statements of means, increase the sanction for false declarations, enable the Board to verify the means of applicants and to provide for prosecution of cases of abuse.

In respect of sentencing, the legislature generally sets out the maximum sentence that can be imposed and it is then a matter for the judiciary to decide what is the appropriate sentence in a particular case taking into account all the circumstances. There is however, a mandatory sentence for murder and presumptive minimum sentences for a number of offences.

The Law Reform Commission looked at the issue of mandatory sentences in detail in their report LRC108-2013. They were in favour of retaining the mandatory sentence for murder. However they were of the view that for other offences, mandatory sentencing regimes are too rigid and have not been shown to be effective in reducing offending. They recommended that presumptive minimum sentences should not be extended and that existing provisions should be repealed.

The Strategic Review of Penal Policy report published in July 2014 made a number of recommendations about sentencing. In particular they recommended that no further mandatory sentences or presumptive minimum sentences be introduced and existing provisions should be reviewed.

I am looking at the question of sentencing legislation in the light of these two reports.