THE STATE should not repeat the unfairness and inflexibility of the means test in civil legal aid cases if it introduces a similar test for criminal cases, a leading legal rights organisation has said.
Free Legal Advice Centres (Flac) said yesterday that its experiences with civil legal aid had shown that means testing and other bureaucratic measures created barriers to people who could not afford a private lawyer.
Flac director Noeline Blackwell said civil legal aid was already a complex means test and was heavy with regulations and bureaucracy.
“You need to have less than €18,000 in disposable income in order to qualify for civil legal aid,” Ms Blackwell told The Irish Times.
“If you are 50 cent over, you do not qualify. People who are on very modest incomes get no legal aid at all. They cannot get any subsidy and they are too poor to get their own legal representation.
“The elaborate bureaucracy can lead to delays of one month or two or three months on appeal, before a person gets a lawyer,” she said. “It could be even more problematic in a criminal case where people would need legal advice quickly.”
Ms Blackwell also said that while there was no set means test in criminal cases, the person before the court had to convince the judge that they could not afford their own legal representation. That, she said, was a practical means test.
“It’s not to say that there are not anomalies where people are abusing the system. Measures should be put in place to address that, but I do not believe that it should mirror or incorporate systems that have not worked in the civil side.”
Minister for Justice Dermot Ahern has said that he and his officials have been looking at this question since the beginning of the year to get best value for taxpayers’ money on a bill that increased from €46 million in 2007 to €55 million in 2008.
“I came up with the suggestion to my own officials, how is it that when somebody goes into court and asks for criminal legal aid, they are not obliged to give a PPS number,” he told local radio station LMFM yesterday.
“If somebody goes to court, at least they are within the taxation system and that potentially they are paying tax, the similar thing is that surely if they are found to have resources themselves, after they get criminal legal aid, that we can recoup that from them.”
The Department of Justice has also clarified the position in relation to proposed changes in the power of the courts to appoint a senior counsel. At present, the District Court can grant a second counsel for cases being sent forward for trial to the Circuit Court.
If a second counsel is granted, it is usually a senior counsel.
While the DPP may use only one counsel to prosecute these cases, his counsel may be facing junior and senior counsel for defence, sometimes in relation to relatively minor charges. The department’s proposal is to restrict the power to grant the second, usually senior, counsel to the Circuit Court which hears the trial as it would be in a better position to assess the seriousness of the charge.
The proposed Criminal Justice (Legal Aid) Amendment Bill includes plans to establish a requirement for a compulsory means test where gardaí or the DPP object to the granting of legal aid. The new rules would apply to all criminal charges except murder.
