Legal aid change will ‘hit most vulnerable’

Kate Pendred

As solicitors around the country resign in their dozens over changes in the legal aid system introduced last week, leading local criminal lawyer Louis Kiernan of Nooney and Dowdall Solicitors warns that the changes will hit the most vulnerable and lead to inequality in the justice system.

Speaking to the Westmeath Examiner, he said: “None of us want to be on strike, it is counter-intuitive to what we normally do and not what we are about.”

Mr Kiernan has represented clients in the courts for a quarter of a century and he is adamant that the new system is “unworkable”.

“This so called reform with its flat-fee proposal seems to come from a fundamental misunderstanding of how the District Court operates,” Mr Kiernan said. The Minister for Justice, Jim O’Callaghan, TD, “seems to have based his reasons for this reform on improving efficiencies and comparing legal aid cases with non-legal aid cases”, without “any meaningful consultation with the profession”.

Mr Kiernan described as “outrageous” the minister’s suggestion that solicitors were adjourning legal aid cases unnecessarily for the small extra fee they get.

“Anyone with any basic knowledge of the District Court would know there are multiple reasons cases are adjourned. Often it is because the state has not provided disclosure, a Book of Evidence is not ready, a certificate of analysis is not ready, a garda is not available or the DPP’s directions are awaited,” all of which are out of the hands of the solicitor, Mr Kiernan explained.

If someone is assigned legal aid, they are usually of limited resources, and they often have additional issues with mental health, addiction, literacy, Mr Kiernan added. Sometimes an interpreter is required.

“The public are beginning to understand the issue here,” Mr Kiernan believes. He pointed out that the minister had increased the flat-fee in the last few days, but warned that it is not going to change attitudes to an unworkable proposal.

A solicitor is to receive €520, “which is a good fee if you have a consultation, go to court and the case is dealt with on the first day”. That is, however, seldom the situation. “Usually you have multiple court appearances, sometimes including out of hours garda station attendances and bail hearings,” he said.

Whether the defendant is facing a serious charge or a minor offence, the fee is the same. “If, for example, the defendant is before the court on multiple charges, say for assault, possession of drugs, burglary, theft, the €520 has to cover all charges and all court dates,” he pointed out.

Another worrying aspect of the reforms is the fact the fee is only payable when all charges are dealt with and a final order is made by the court. “That is likely to be after numerous court appearances and many hours spent on considering statements, reports, CCTV provided. If the client skips bail or changes solicitor, then the first solicitor who did all of the work and attended for all of the court appearances gets zero payment because payment is only made when the final court order is made and to the solicitor on record at that stage,” Mr Kiernan said.

“What other profession or business would be asked to work under such a model?” he asks.

Not all the solicitor’s work is done in court. Mr Kiernan recalled a recent case which was adjourned multiple times because the defendant required psychiatric care “and there was no place for her”.

“I was in contact with doctors and psychiatric nurses and we finally got her a bed,” he said.

“Many clients are vulnerable. You have clients who are teenage children that come in threatening self harm and we have to liaise with doctors, nurses, probation workers, social workers and counsellors,” he added.

“The minister is trying to introduce a whole new layer of unpaid work. Criminal legal aid is the cornerstone of our legal system and the person before the courts has to have equality. Those on legal aid are often vulnerable people for all sorts of reasons and are entitled to the same access to justice as people with substantial means,” Mr Kiernan said.

“I have been in the system for 25 years and I cannot see the new flat-fee proposal working. People who have worked in the system can see that,” he stated.

The president of the Law Society Rosemarie Loftus has warned that the reforms would have a devastating impact on access to justice, that victims of crime would face delays to trials, while vulnerable defendants, including children, people with addiction or serious mental health conditions, victims of trafficking and homeless people, would be disproportionately affected.

Any reform of criminal legal aid should be workable, fair and evidence based, Ms Loftus has stated. She said the proposed changes are none of those things.