THE GOVERNMENT is considering the introduction of a compulsory means test for legal aid in criminal cases in order to deal with escalating costs in this area.
Minister for Justice Dermot Ahern was given Government approval earlier this year to begin drafting a new Criminal Justice (Legal Aid) Bill that would introduce more rigorous requirements for those applying for legal aid.
The new Bill is expected to be published by the end of the year and will include measures that will be seen as controversial and may draw opposition from civil liberties’ groups and some criminal lawyers.
Preliminary proposals include plans to introduce a new legislative “trigger” for a compulsory means test, where gardaí or the Director of Public Prosecutions (DPP) object to the granting of legal aid. There is no such requirement in the current laws.
Figures recently produced by the Department of Justice show that expenditure on criminal legal aid was €46.5 million in 2007 and increased to €55.3 million in 2008. The cost of the service this year is expected to be higher than last year.
The new law, if implemented, would apply to all criminal charges with the exception of murder, the rules of which would remain unchanged because of the gravity of the offence.
There would also be a requirement on the solicitor for every applicant for legal aid to produce the defendant’s personal public service number (PPSN). This can be a means of validating or cross-referencing his or her claim of not having sufficient means to pay for a lawyer.
There are also plans to introduce an obligation for those with some means to make a contribution to the cost of their own defence, as well as substantially increasing the penalties for fraud. Current criminal sanctions and fines are seen as inadequate.
In addition, it is proposed that new restrictions be introduced on the power to grant senior counsel to the Circuit Court and higher courts in cases other than murder. It is likely that this measure will be strongly opposed by criminal lawyers.
The changes are designed to repeal the present Act dating from 1962.
The Bill is also being proposed as a means of containing the mounting costs of legal aid in recent years.
Under the current legislation, an applicant must establish to the satisfaction of the court that his or her means are insufficient to pay for legal aid. The new proposals will increase the threshold in relation to that test. The number of defendants granted legal aid has increased in recent years, primarily because of the creation of new offences and the expansion of court services.
Earlier this year, the department began consulting with the judiciary, Garda, the Courts Service and the DPP with a view to reviewing the law and making it more cost-effective, without depriving accused persons access to legal representation.
It forms part of a drive initiated by Mr Ahern to cut costs in his department. Besides legal aid, the other two areas on which he has focused are the accommodation costs for asylum seekers and the Garda overtime bill. The latter is understood to have been reduced substantially from over €100 million to €80 million.
The department has sought advice from the Attorney General’s office on the proposed Bill.
Government sources yesterday accepted that the issues involved were complex but expressed confidence that the legislation would be published by the end of 2009.