“IN England, justice is open to all—like the Ritz Hotel.” This pithy quote, attributed to Victorian-era judge Sir James Mathew, was made to highlight the fact that the law and the Ritz were open to all in theory but, in practice, only the rich could afford them. The quote, often misattributed to Mathew’s compatriot George Bernard Shaw, seems appropriate as the current controversy surrounding our criminal legal aid system – which saw criminal practitioners strike in Tuam Court last Tuesday – rolls on.
Minister for Justice Jim O’Callaghan and the mandarins in the Department of Justice got, to employ a sporting analogy, their retaliation in first, by dispensing some selective examples of abuse of the legal aid system so as to soften up the public and head off at the pass outright opposition to the proposed reforms among criminal law practitioners.
“If it bleeds, it leads” is an old adage in the ink trade and giving the boot to a profession unlikely to illicit public sympathy is an open goal too tempting to pass for any self-respecting hack.
There’s more than meets the eye to this story, however, and it has those practising criminal law – a rare and hardy breed indeed – up in arms over what many feel will undermine one of the most fundamental tenets of any functioning democracy, not just the rule of law, but the right to defend your good name in a court of justice.
The proposal emanating from the Minister is to replace the current per-appearance fee for solicitors and barristers appearing in District Court criminal cases, with a fixed fee for each case. It is also proposed that fees for adjournments will be curtailed. The Minister maintains that this is to increase efficiency and to prevent abuse. Those opposed argue abuse is minimal and any efficiencies will come at the cost of civil liberties and adequate access to representation for society’s more vulnerable.
Beware yellow pack justice in guise of efficiency
One veteran solicitor, not on the legal aid panel, made the point to The Advertiser that setting a fee per case and limiting appearances was a disquieting precedent: “If we follow the logic of yellow-pack justice and paring costs to the bone, where could it lead? Robo judges? AI algorithms being fed charges and spitting out decisions with a bit of generic mitigation thrown in for good measure?” he said.
Criminal solicitors and barristers are genuinely concerned that the proposed hollowing out of the legal aid system is reverting to the Ritz hotel scenario which troubled Judge James Mathew over a century ago.
The Advertiser spoke to leading city criminal law practitioner John Martin who is spearheading local opposition to what is seen by him and his colleagues as an arbitrary and ill-conceived imposition of changes. He asserts that if implemented as they stand they will not only herald an exit of criminal lawyers from the profession, but seriously undermine the right of all to a proper defence before the Courts.
His colleague Gearóid Geraghty who also specialises in criminal law and whose practice is in Ballinasloe, is of the same mind. They both warn that the consequences of the proposed cost-cutting reforms will be that the less well-off and the more vulnerable in society will not be able to get adequate legal representation. Practitioners will be reluctant, they say, to take on more ‘troubled’ clients because of the amount of additional work such cases frequently involve. John Martin describes this as “client vetting” and insists it would be a very insidious road to go down, since it could lead to an American-type public defender system where the quality of defence is somewhat of a competence lotto if you can’t afford to hire a lawyer.
Both solicitors acknowledge that their profession has a poor image but insist that the fees earned in criminal law bear no resemblance to those earned in the Civil Courts.
Gearóid Geraghty says the headline-grabbing figures paid out to Tribunal lawyers set the image of the profession “back 100 years”.
“The fees were obscene and there is no comparison between the fees in the Civil Courts and those earned in criminal law. This is one of the reasons why younger lawyers are less interested in careers in criminal law, so eventually the pool shrinks and this will initiate a crisis in the whole system,” he says.
He points out that no matter how serious or trivial a charge is, it first comes before the District Courts which is where any society calling itself democratic must ensure each individual has the protection of the Constitution and the opportunity to vindicate their good name.
“One of the most basic principles of a democracy is the rule of law. Irrespective of who you are or your station in life, this entails all having the right to have access to the courts and the ability to defend their good name or, at the very least, defend themselves against charges brought by the State. Legal aid is a mechanism to ensure this can happen and without it and trained people to defend them, the whole system might crumble,” he argues.
People will be driven out of the profession
Both agree the system is flawed, cumbersome and prone to break down at times, but they argue that the way to improve it is through consultation and well-considered reform, not through knee-jerk quick fixes which will drive people out of the profession and leave many without their constitutional right to an adequate defence.
A fact not commonly understood outside the courts system is that most cases that come before the District Court – the bottom tier of the legal pyramid – are dealt with through guilty pleas and mitigation. Even before this current controversy erupted, informed sources maintained that the criminal court mechanism would grind to a halt were this not the case. Guilty pleas can be entered in seconds but mitigation can be laborious and time-consuming.
John Martin maintains that the report on which these proposals are based was more than likely compiled by someone with no practical experience of how the court system actually works in reality, and that its findings are more akin to wishful thinking on how in an ideal world it should work.
He tackles the popular perception of the system being manipulated and abused for profit head on.
“The suggestion that practitioners are adjourning cases to bump up their fees has little foundation in reality. Adjournments arise for multiple reasons: awaiting a DPP decision, Garda procedural matters, awaiting medical, psychological or probation reports and sometimes simply the everyday issues associated with very vulnerable clients who may fail to turn up, requiring bench warrants to be issued, or they’re simply under the weather. This is not a one-size-fits-all process. Private clients may be in and out fairly quickly but matters become much more complex when it comes to those who are categorised under the euphemism we often employ, ‘chaotic lifestyle’.
John argues that it’s these very clients who will lose out if lawyers begin to ‘vet’ clients. In other words, if they look like they might need that extra bit of attention, through looking for GP reports, contacting homeless supports such as Simon or simply through some advice and gentle persuasion, then the one-size-fit-all approach will disincentivise those in the profession who understandably don’t want to end up working for nothing if and when their allotted fees run out.
He added that a salutary example of this can be seen in the area of family law, a very complex area, where a somewhat similar set-fee system has already been implemented. The result is many practitioners abandoning this field, making it much more difficult to find representation to carry out such work.
He argues that whatever template is being used to draft these new rules, it seems to be based on a notion that the legal aid system is a cash cow that is being abused. In his experience, says John Martin, this is far from the truth and the State gets very good value for money when all the additional ancillary work which goes unseen and unaccounted for is factored in. If these services were actually paid for, it would cost the State a fortune.
Down tools protests will grind things to a halt
“THE fact is we hate the delays which clog up the system and would be more than happy to cooperate with the Dept of Justice to find ways of making it more efficient and workable. But driving criminal practitioners out of the system is certainly not the way to go about it. If we’re forced into a ‘down tools’ situation people will just leave the legal aid panels and the system will very quickly grind to a halt. What is being proposed is simply unworkable,” he says.
Gearóid Geraghty adds: “The system is far from perfect, in many ways it is very flawed, but we are at the coalface here and often the only barrier preventing the State from interfering with the civil liberties of the citizenry. This is important and while no one denies some reform is needed it should never come at the cost of undermining this most basic tenet of democracy.”
