Minister has no 'hard data' to back up legal fee reform

A senior counsel who practises in the criminal courts has said Minister for Justice Jim O'Callaghan does not have the "hard data" to back up his claims about reforming the payment structure of solicitors.

Senior Counsel Michael O’Higgins said the reforms risk seeing solicitors stop working in the criminal system "in their droves".

"It's a question of hard data, and the minister does not have it.

"And he did say that, but when he appeared on the Oireachtas committee, he was asked a very simple question: 'What number of cases are you referring to?’

"His answer was, he does not know," Mr O’Higgins said.

Under the new system, criminal legal aid solicitors will now be paid a flat fee rate of €520 under a 'one accused, one fee' model.

Under the old system, a solicitor was paid for each court appearance by a single person, starting at €239.38 for the first appearance, and then €59.86 for each subsequent hearing.

Mr O’Higgins explained that the regulations, as they existed up to last week, provide that if an accused is charged with 10 offences, that might work its way through, there might be some pleas of guilty, there might be some charges dismissed, and there might be a trial.

"And at the end of it all, the regulations specify that a solicitor can only get one certificate to cover all of the offences.

"And unless and until a judge is convinced that there's a good reason to vary that, that is what happens.

"In every instance where an additional certificate is granted, it is done judicially by a judge who swears an oath to the Constitution.

"To suggest without knowing how many cases are affected, without acknowledging the judicial decision in respect of submission, doesn't really put the position fairly."

Last week, up to 60 solicitors walked out of Dublin District Court in protest at the new scheme, while a number of solicitors in Cork were understood to have offered their resignations from the legal aid panel.

Speaking on RTÉ’s This Week, Mr O’Higgins said the decision to implement these reforms is already having a "very great" impact on the criminal justice system.

"All bail cases that come before the courts are now in limbo. Nothing is happening.

"Bail cases on trial are not getting on. Every day this week, there are cases that are simply being adjourned, and that is the number that can only go upwards.

"Sometimes also sentence hearings where people have been convicted, they're on bail, they come to be sentenced. That sentence is going back," he said.

Mr O’Higgins said that this is happening in all courts, the District Court, the Circuit Court, and the Central Criminal Court.

"It goes way beyond the District Court."

"The sense is that they're out of caution, perhaps giving bail where they might otherwise not have done, had the person been represented and the issues more fully thrashed out."

Mr O’Higgins called on both sides to "sit down and examine how the system is working".

"Come up with ways to improve it and make it more efficient, and negotiate and get to the middle ground.

"Simply presenting a document and saying, ‘that's it, take it or leave it’, I cannot see how that is going to resolve anything," he said.