237. Deputy Robert Troy asked the Minister for Justice and Equality if a review of legal aid services will be carried out in order to ensure that repeat offenders do not continue to make use of these services; his plans to introduce a type of three strike clause which would ensure that a person that reaches three separate convictions cannot then avail of free legal aid services in the future; and if he will make a statement on the matter. [5474/18]
Minister for Justice and Equality (Deputy Charles Flanagan): As the Deputy is aware the Criminal Legal Aid Scheme is a vital element of the criminal justice system. The Criminal Justice (Legal Aid) Act 1962 provides that free legal aid may be granted in certain circumstances for the defence of persons of insufficient means in criminal proceedings. Under the 1962 Act, the courts, through the judiciary, are responsible for the granting of legal aid. An applicant must establish to the satisfaction of the court that their means are insufficient to enable them to pay for legal representation themselves. The court must also be satisfied that, by reason of the "gravity of the charge" or "exceptional circumstances", it is essential in the interests of justice that the applicant should have legal aid. An applicant's previous convictions are not a criterion for access to legal aid under the Act. I have no function in these matters which are determined by the judiciary.
These provisions must have regard to the right to a fair trial, including the provision of legal aid where appropriate, which is a Constitutional right upheld by the courts in a number of judgments. The Supreme Court ruling in the case of State (Healy) v Donoghue I.R. 325 effectively determined that the right to criminal legal aid is, in circumstances which are quite wide in practice, a Constitutional right. Article 6(3)(c) of the European Convention on Human Rights states that " Everyone charged with a criminal offence has [the right] to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require". As the Deputy will be aware, an accused person is entitled to a presumption of innocence and legal representation and any obstacles to obtaining necessary legal aid which were found to be unreasonable could give a defendant an avenue for appeal or prohibition of the prosecution. The overriding concern is to ensure that no risk arises in relation to the prosecution of persons charged with criminal offences before the courts.
My Department is preparing a draft General Scheme of a Criminal Justice (Legal Aid) Bill, the key purpose of which is to transfer the administration of the Criminal Legal Aid Scheme to the Legal Aid Board and to give effect to
Government Programme commitments in respect of criminal legal aid, including introducing a more rigorous and objective means testing system for criminal legal aid, provision for contributions, and new sanctions. It is my intention to seek approval of Government for the General Scheme of the Bill and submit it to the Oireachtas for pre-legislative scrutiny as early as is practicable.