Defendants may have to pay some of their legal costs under Legal Aid reforms

Proposed changes to the legal aid system in Ireland could see people pay for some of their legal costs rather than having legal aid provided completely free for them by the State. 

Applicants for legal aid will have to provide a statement of means and anyone who recklessly makes false or misleading statements in relation to their means could face a fine of up to €4,000.

A significant change will see the Legal Aid Board being able to make a recommendation for a person to pay some of their legal fees, if they have sufficient means. Under the existing arrangement, a person is either granted free legal aid or not, depending on their means, with no mechanism for a person to pay some of their costs. 

The Minister for Justice Helen McEntee TD and the Minister of State for Law Reform James Browne TD have published the General Scheme of the Criminal Justice (Legal Aid) Bill 2023.

This Bill waims to modernise the operation of the Criminal Legal Aid Scheme, transferring administrative responsibility from the Department of Justice to the Legal Aid Board and introducing strengthened oversight and governance structures for the Scheme.

The Bill will introduce number of reforms to safeguard the operation of the Criminal Legal Aid scheme, and to formalise existing procedures and strengthen controls where that is warranted.

It will introduce a simple and transparent written or online application system for Criminal Legal Aid, which will be required to be supported by a Statement of Financial Circumstances.

The Courts will continue to grant legal aid but will be able to impose a condition that the granting of legal aid is subject to a further assessment of income by the Legal Aid Board, where deemed necessary.

The Board will be able to make a recommendation that the applicant is of sufficient means to pay some of their legal costs themselves, rather entirely have it paid for by the State. Where appropriate, it can be recommended that some applicants make a contribution to the costs of providing legal aid.

It will also be open to the Court to refer a person to the Legal Aid Board for an assessment of income if they fail or refuse to provide information on their financial means.

Anyone who knowingly or recklessly makes false or misleading statements in relation to their financial circumstances, or another person’s financial circumstances, will be guilty of an offence that could lead to a €4,000 fine or six month’s imprisonment. 

It will also be open to the court to amend the terms on which legal aid is granted, for example on objection by the prosecution, or where the person in receipt of legal aid has not co-operated with the court or with the Legal Aid Board.

Minister McEntee said: "Access to legal representation is fundamental to ensuring fair access to justice and it is important that our legal aid architecture is appropriate and efficient.

"But it is also important that proper assessments are carried out when deciding if a person can qualify for Criminal Legal Aid. That’s why this new legislation will allow the courts, where the courts might consider it warranted, to refer an applicant to the Legal Aid Board for an assessment of their financial circumstances to be carried out under regulations to be drawn up under the terms of the Bill. 

"The Board will then be able to recommend that a person can afford to contribute to their legal costs rather than have the entire bill borne by the taxpayer, and a court will make the final decision in the matter".  

The Bill will also deliver on one of the key the reforms in Minister McEntee’s ‘Supporting a Victim’s Journey’ plan to reform the criminal justice system and make it more victim centred by extending the type of assistance the Legal Aid Board can provide.

It will be able to provide legal advice to a victim at any time after an offence, even where it is decided not to make a complaint or proceed with a prosecution, for offences  including rape, sexual assault and sexual abuse of minors and people with mental illness or mental illness or intellectual disability.

It will also allow for legal advice to be granted to a parent, guardian or other responsible adult in certain cases. This would not apply if the parent or other responsible adult is the suspected or alleged offender. These changes are in line with commitments made by the Minister under Supporting a Victim’s Journey and will be complementary to the modern capacity framework being established by the Assisted Decision Making (Capacity) Act 2015.

The Scheme will now be referred to the Justice Oireachtas Committee for pre-legislative scrutiny and drafting of the Bill along the lines of the General Scheme will begin.