Criminal Legal Aid
In Ireland if your constitutional right to legal representation applies and you don't have the means to pay for legal representation, then the State (or Government) is obliged to provide that legal representation.
The Supreme Court has held that there is a need to put the defendant on equal terms with the prosecution. Without legal representation, an ordinary person without any experience of criminal law and court proceedings would be at a serious disadvantage up against the legal resources of the prosecution. It is interesting to note that the Supreme Court decided that it is only in certain circumstances that somone has a constitutional right to legal representation. There is no absolute constitutional right to it.
The main legal aid available to someone accused of a crime is the legal aid provided under the Criminal Justice (Legal Aid) Act 1962. Criminal legal aid, unlike civil legal aid, is free. No financial contribution is necessary.
If a judge considers that it is appropriate that you are granted criminal legal aid, you will be issued a legal aid certificate. However, in some cases a legal aid certificate may not be available. In those cases you may be entitled to apply for free legal representation under another scheme such as the Criminal Assets Bureau's Ad-Hoc Legal Aid Scheme or the Attorney General's Scheme. (See 'Other legal aid schemes' below)
All criminal cases in Ireland start in either the District Court or the Special Criminal Court. The majority of cases start in the District Court. It is at this stage that you are entitled to apply for legal aid.
If a charge carries a possible prison sentence and you, as the defendant, are not legally represented, the District Court judge is required to inform you that you may be entitled to legal aid. If you wish to be legally represented and you claim that you can't afford it, the judge must consider whether you qualify for free legal aid.
What are the factors the judge must consider?
In deciding whether or not you qualify for free legal aid under the criminal legal aid scheme, the judge must consider the following:
- Whether your means are enough to enable you to pay for your own legal aid
- Given the seriousness of the charge or offence, whether it is in the interest of justice that you should have legal aid in the preparation and conduct of your defence.
Normally an application for legal aid will be as straightforward as explaining to the judge that you are unemployed and give them details of your social welfare payments, or if you are on a low income, your salary. Sometimes the judge will ask a prosecuting Garda if the Gardaí have any objections to legal aid being granted. The Gardaí will rarely object unless they have proof that you are being untruthful to the court about your means.
In the case of a young person the court will look at the means of the parents or guardian to see if they can afford to pay for the legal advice.
The court may require a written statement from you setting out your income, family circumstances and any other relevant details. This written statement must be made on a form which is available from the District Court clerk at the District Court offices.
It is an offence for you to knowingly make a false statement or a false representation either verbally or in writing or to conceal any important fact from the judge in relation to your application for legal aid. If you are found guilty of this offence you are liable on conviction to a class C fine or to imprisonment for up to six months (or to both).
So, for example, if you tell a judge that you are unemployed (and are granted legal aid) but it later transpires that you were working at the time, you are guilty of an offence.
If the judge considers that it is appropriate that legal aid is granted, you will be issued a legal aid certificate.
In what cases is legal aid granted?
Generally the rule is that if the offence is a serious one and you can’t afford to pay for your own legal advice, then the court grants a legal aid certificate.
In assessing the seriousness of the case the judge considers the possibility of you receiving a prison sentence or large fine if convicted.
If the offence is not a serious one, the judge may grant legal aid in exceptional circumstances. Such exceptional circumstances include the following:
- If you are very ill
- If you are immature
- If you lack any formal education
- If you are emotionally disturbed or lack the mental capacity to understand the process of the court case.
In what cases is legal aid not granted?
A District Court judge will normally refuse to grant a legal aid certificate in the following circumstances:
- Where the judge is of the view that the matters before the court are not serious enough. For example, road traffic offences and other minor offences
- Where the judge is of the view that you have enough means to pay for your own legal representation
- Extradition proceedings
- Most judicial review proceedings.
In some cases, however, where a legal aid certificate is not available, a person may be entitled to apply for free legal representation under another scheme such as the Attorney General's Scheme. You can find information on other free legal aid schemes below.
Can I appeal the refusal by a judge to grant me legal aid?
No, there is no appeal procedure for the refusal of criminal legal aid. You can however make another application in a higher court if the matter is sent forward for hearing to a higher court.
Legal aid granted in the District Court only covers District Court proceedings. If you are sent forward to a higher court by the District Court to have your case dealt with and you have already been granted free legal aid, it will be necessary for you to apply to that higher court for legal aid for your trial. It is very unlikely that the higher court would refuse to grant a legal aid certificate if the District Court has already granted a certificate.
Can I choose my solicitor?
If you have been granted criminal legal aid, the judge assigns a solicitor to your case from the legal aid panel. If you express a desire to be represented by a particular solicitor from the panel, the judge assigns that solicitor if he/she is available. The constitutional right, however, to free legal aid for certain defendants does not extend to an absolute right to choose a particular solicitor or barrister.
There is no specific legal obligation on either solicitors or barristers to participate in the free legal scheme. Each county registrar is obliged to compile and maintain a list of solicitors who are willing to participate in the scheme in the courts within their area. The Minister for Justice and Equality also compiles and maintains a similar list of barristers (nominated by the Bar Council) as being willing to participate in the legal aid scheme.
Although you have no absolute right to choose a solicitor, the courts very rarely refuse to assign the solicitor sought by a defendant. This is so long as the solicitor is on the legal aid panel and is available. If a judge refuses to assign a solicitor nominated by you, the court must state the reason and should then enquire whether you wishe to nominate any other solicitor.
What costs does the scheme cover?
When a legal aid certificate is granted for court proceedings it entitles you to free legal aid for fees, costs or expenses which are incurred in the preparation of and the conduct of your defence. It also covers the cost of an appeal or a case stated. The fees included are those of a solicitor and in certain circumstances, up to two counsel or barristers.
The legal aid certificate also covers the fees of non-legal professionals who may be required for the preparation and conduct of your defence. Examples of these are:
- Forensic scientists
- Language experts.
In a case where a defence solicitor or barrister considers the services of such experts are necessary, their expenses are covered by the legal aid certificate.
How to apply
In almost all cases, the application for criminal legal aid is made on your first appearance in the District Court. The judge informs you of your right to free legal aid and it is at this stage that the application is made by you.
If your case is sent forward to a higher court for hearing (for example the Circuit Court), your solicitor (if one was assigned to you in the District Court) will apply to the Circuit Court for legal aid on your behalf.
Other legal aid schemes
In those cases where you are not entitled to a legal aid certificate under the criminal legal aid scheme,you may be entitled to apply for free legal representation under another scheme.
Legal Aid - Custody Issues Scheme
The Legal Aid - Custody Issues Scheme (formerly known as the Attorney General’s Scheme) is a non-statutory scheme which cover the fees payable to a solicitor and barrister representing a person in certain criminal matters where that person cannot afford to pay the fees themselves. The scheme is administered by the Legal Aid Board.
The scheme applies to the following matters.
- Applications for bail in the High Court or the Supreme Court
- Judicial review proceedings which are concerned with criminal matters or matters where the liberty of the person is at issue
- Applications under the Extradition Act 1965 and the European Arrest Warrant Act 2003
- Habeas Corpus applications (brought by a person who claims that they are being unlawfully detained by the state)
Legal Aid is available under the scheme whenever the applicant's means are not sufficient to obtain the appropriate and necessary legal representation and the court in question considers it necessary and proper that a solicitor and barrister should be assigned to that person to make submissions on behalf of that person in their application to the court.
To apply for funding under the scheme, you personally, or through your legal representative, must make an application to the court for a recommendation for funding under the scheme at the start of proceedings. Further information on the scheme is available on the Legal Aid Board’s website.
Ad-Hoc Legal Aid Scheme (CAB)
The Department of Justice and Equality operates the Criminal Assets Bureau (CAB) Ad-Hoc Legal Aid Scheme which provides legal aid to people who are defendants in any court proceedings brought by the Criminal Assets Bureau, including court proceedings under the Proceeds of Crime Act 1996, Revenue Acts or Social Welfare Acts.
The scheme also includes:
- Social welfare appeals made to the Circuit Court under Section 307 of the Social Welfare Consolidation Act 2005
- Tax appeals made to the Circuit Court under the Taxes Acts where the Criminal Assets Bureau is the defendant
- Applications made by the Director of Public Prosecutions under Section 39 of the Criminal Justice Act 1994
To apply for funding approval you must apply to the court which is dealing with your case. The court decides the level of legal representation and/or witness expenses allowed.
Further information on the scheme is available on the Department of Justice and Equality’s website.