Government report suggests eligibility threshold and contributions for criminal legal aid

The options are set out in a report by the Irish Government Economic and Evaluation Service (IGEES) as part of a rolling three-year spending review announced in 2016.

It finds that Ireland the criminal legal aid (CLA) system in Ireland is “robust” and at a “relatively lower cost per capita” than in other countries with a comparable system, but that there is “some potential for the CLA landscape to be refined to achieve efficiencies across the judicial system and, perhaps, to reduce total expenditure as a result”.

It suggests that this could “be achieved in a way that makes the system more equitable, ensuring closer scrutiny of individuals’ financial circumstances in considering their eligibility for representation, as well as adopting strategies that reduce the length of trials at an advantage to both the courts and the individuals involved”.

The report shies away from recommending certain moves, but suggests that the Government should give serious consideration to them.

It explains: “While the granting of CLA relies on the interest of justice test to ensure that individuals accused of a serious offence have access to free representation, the Irish CLA model does not currently apply financial thresholds for eligibility (although individuals do have to show that they have insufficient means to cover the cost of representation). As such, introducing an explicit threshold may be worth considering, with similar jurisdictions applying a typically low threshold for entry.

“An explicit threshold could serve as guide to the courts but it would be important to keep any threshold sufficiently flexible to avoid barriers to entry that would likely lead to more self-representation. One of the unintended consequences of self-representation could be a slowing down of the justice process as untrained representatives deal with the technicalities involved in arguing their case. It may also lead to cases being stuck out which would have negative impacts on the effectiveness of the criminal justice system.

“Unlike many comparable jurisdictions, Ireland does not operate a contributory scheme. Another aspect of reform that is being examined is where individuals make a retrospective contribution towards the cost of their CLA if they do not pass the means test. Assuming a similar rate of contribution as England and Wales, this would lead to approximately €721,000 in extra revenue every year. However, this is minimal in the overall context and the risks as well as the direct and indirect cost of running this scheme may also be significant.”