Bill to expand legal advice services for victims of crime, but tighten eligibility for legal aid

A new Bill aims to expand legal advice services for victims but to tighten controls on eligibility for criminal legal aid, including by making it an offence to knowingly make misleading statements about income.

The Criminal Justice Legal Aid Bill 2023, published on Wednesday, also provides for responsibility for the administration of the criminal justice legal aid scheme to be transferred from the Department of Justice to the Legal Aid Board.

Minister for Justice Helen McEntee said the Bill “will deliver on a number of important recommendations from my Supporting a Victim’s Journey Plan to reform the criminal justice system and make it more victim-centred”.

Offences

The legislation means the board 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 intellectual disability, she said.

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“Free legal advice is available to victims in cases involving sexual offences, and not just in cases where a decision has been taken to prosecute. This will be an important element of ensuring victims of some of the most sensitive and psychologically damaging crimes are better supported at every step in their journey through the criminal justice system.”.

The Bill allows for legal advice to be granted to a parent, guardian or other responsible adult in certain cases, but not if the parent/other responsible adult is the suspected or alleged offender.

The changes are in line with the commitments to support victims and will be complementary to the modern capacity framework being established by the Assisted Decision Making (Capacity) Act 2015, said the Minister.

The new Bill seeks to modernise the operation of the criminal legal aid scheme and introduces strengthened oversight and governance structures for the scheme.

Some €81.2 million was spent on criminal legal aid last year. Under the Criminal Justice (Legal Aid) Act 1962 the courts, through the judiciary, are responsible for the granting of legal aid. An applicant must satisfy the court their means are insufficient to enable them pay for legal representation themselves. The court must also be satisfied that the “gravity of the charge” or “exceptional circumstances” makes it essential in the interests of justice the applicant should have legal aid.

Assessments

Ms McEntee said access to legal representation is “fundamental to ensuring fair access to justice” and it is important 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, she said.

Under the Bill, the courts may refer a person to the 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 months’ imprisonment.

It will also be open to the court to amend the terms on which legal aid is granted.

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