The Right to Legal Aid: Securing Access to Justice for All
Marcela Rodriguez-Farrelly
INTRODUCTION
The right of access to justice guarantees that every person has access to an
independent and impartial court and the opportunity to receive a fair and just trial
when the person’s fundamental rights at risk.
Barriers to access to judicial protection rights can be numerous, including High Court
costs, restrictive jurisdictional rules, overly complex regulations, ineffective
enforcement mechanisms, lack of legal literacy, to name a few.
A crucial element of access to justice is the effective availability of the services of a
lawyer. For people of inadequate means to the right to legal aid is an essential
component in securing their right of access to justice, either in pursuing or in
defending a case.
In criminal cases, the lack of effective protection of the right to legal aid may prevent
those who cannot afford the service of a lawyer from exercising their procedural
rights and may reduce their opportunity to influence the outcome of the proceedings
when their liberty is at stake. In civil cases, the lack of accessible mechanisms for
resolving legal disputes prevents citizens from protecting and asserting their civil,
economic, social and cultural rights. In both criminal and civil cases, the lack of
access to justice results in reduced public confidence in the legal system, which is
indispensable for every democratic state rooted in the principles of the rule of law,
human rights and democracy1.
Justice is based on respect for the rights of every individual. As the Declaration of
Human Rights has recognised “the inherent dignity and the equal and inalienable
rights of all member of the human family is the foundation of freedom, justice and
peace in the world” 2 . The protection of such dignity and rights constitutes the
cornerstone of international human rights law. Guided by the principles of equality

1
Free Legal Advice Centres, Ireland.
Vassela Terzieva, “Access to Justice in Central and Easter Europe: Comparative Report”. November
2002 – Public Interest Initiative -
2
available at www.pili.org
Universal Declaration of Human Rights 1948
1
and non-discrimination, the human rights system hinges on the idea that law is a
fundamental tool in achieving these objectives. It is imperative that this legal regime
be accessible to all. “A system that purports to guarantee individual rights to all but
fails to facilitate the access of vulnerable or impoverished individuals and groups to
law would have to be deemed to have failed. The failing would be an extremely
fundamental one since it would result in law being created as merely a set of
entitlements for the privileged, thereby negating the very basis on which the regime
was forged.” 3
3
Joshua Castellino & Ray Murphy, “The issue of legal aid: A Regime Comparison” – Irish Centre for
Human Rights, National University of Galway, Ireland
2
The Free Legal Advice Centres, FLAC is an independent human rights organisation
dedicated to the realisation of equal access to justice for all and it campaigns through
advocacy, strategic litigation and research for the eradication of social and economic
exclusion.
Since 1969 FLAC has been working to promote and develop of Public Interest Law in
Ireland in the belief that the law is an effective tool to promote social change. Seeking
to secure the constitutional right of all people to access to the courts, FLAC has been
engaged in a variety of activities including litigation, the establishment of legal clinics,
capacity building, lobbying and educating the public. FLAC was successful in
proving the need for civil legal aid services and in getting this issue into the political
arena. Resulting in the establishment of the State civil legal aid scheme, FLAC’s
campaigning work has also contributed to reform in the areas of family law,
employment law, social welfare law and consumer law.
This paper seeks to examine the issue of legal aid within the context of the right of
access to justice. It will suggest some possible approaches to the challenges of access
to justice from a human rights and public interest law perspectives.
The first part will explore the international standards and practice in relation to legal
aid. It will explore models for the delivering of legal aid and will describe briefly a
number of legal aid systems around the world. The second part will attempt to
examine the current status of legal aid in Ireland in the light of applicable
international and comparative standards.
A. INTERNATIONAL STANDARDS AND PRACTICE RELATING TO LEGAL
AID
I. Legal Aid and the International Covenant on Civil and Political Rights
Legal aid is one of the fundamental guarantees associated with the right to a fair trial
embodied in international human rights treaties.
On setting standards for the right of fair trial, the International Covenant on Civil and
Political Rights (ICCPR) establishes that:
“14.1. All persons shall be equal before the courts and tribunals. In the determination
of any criminal charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law.
…
14.3. In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality:
3
(b) To have adequate time and facilities for the preparation of his defense and
to communicate with counsel of his own choosing;
(d) To be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have legal
assistance, of this right; and to have legal assistance assigned to him, in any
case where the interests of justice so require, and without payment by him in
any such case if he does not have sufficient means to pay for it.”
Through its General Comment 13 to Article 14, the Human Rights Committee (HRC)4
clarifies a series of issues arising from the complexity of the article5 as follows:
Fair and Public Hearing
The HRC states that all provisions established in article 14 are aimed at ensuring the
proper administration of justice, and to this end uphold a series of individual rights
such as equality before the courts and tribunals and the right to a fair and public
hearing by a competent, independent and impartial tribunal established by law. 6 It
goes on to explain that the second sentence of article 14, paragraph (1) provides that
"everyone shall be entitled to a fair and public hearing" and that the paragraph (3)
elaborates on the requirements of a "fair hearing" in regard to the determination of
criminal charges. However, the requirements of paragraph 3 are considered to be
minimum guarantees, the observance of which is not always sufficient to ensure the
fairness of a hearing as required by paragraph (1). 7
In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law
Commenting on the issue of the scope of article 14, the HRC stresses that “…article
14 applies not only to procedures for the determination of criminal charges against
individuals but also to procedures to determine their rights and obligations in a suit at
law…” Of course the problem here is to ascertain and interpret the concept of “suit of
law”, and unfortunately the case law is not very enlightening. The question has been
discussed in relation to proceedings under anti-disability discrimination laws8 and
4
Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984),
Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N.
Doc.
HRI\GEN\1\Rev.1 at 14 (1994)
5
See HRC General Comment 13, paragraph 1
6
ibid
7
See HRC General Comment 13, paragraph 5
8
Y.L. v Canada (112/81)
4
deportation proceedings,9 but without much clarity having been achieved. However,
it is clear that when interpreting the term “suit of law,” considerations include the
nature of the rights at stake, and that relevant rights are not limited to those pertinent
to a criminal trial. In Currie v Jamaica 10 , the HRC held that certain civil
proceedings could also come within the requirement of free legal aid particularly in
the context of article 14 3(d).
Adequate time and facilities
Fundamental to a fair trial is the right of all people accused of a criminal offence to
adequate time and facilities to prepare a defense, which requires that both the accused
and his/her11 counsel must be granted access to appropriate information, including
documents, information and other evidence that might help the accused prepare
his/her case at all stages of the proceedings, including before the trial and during any
appeal. General Comment 13 from the HRC stresses that the facilities ‘must include
access to all documents and other evidence which the accused requires to prepare his
case,12 as well as the opportunity to engage and communicate with counsel’.13 As
General Comment relates to the issue on Paragraph 9, “…he (the accused) should be
able to have recourse to a lawyer.” However, there is no direct reference to legal aid in
this context.
Counsel of his choosing
Because of the importance of trust and confidence between the accused and his
lawyer the accused may generally choose which lawyer will represent him. The HRC
found that this right was violated when the accused was given only a list of military
lawyers from which to choose, and when an accused was forced to accept appointed
military counsel, although a civilian attorney was willing to represent him.14
If counsel is appointed to represent the defendant free of charge, the defendant is not
entitled to an absolute right of choice. However, in death penalty cases the HRC has
stated that the court should give preference to appointing counsel chosen by the
accused, including for the appeal, even if it requires adjournment of the hearing15
To have legal assistance assigned to him… where the interests of justice so require
9
10
11
12
V.M.R.B. v Canada (235/87)
Currie v Jamaica (377/89)
The use of “he,” “him,” and “himself” is intended to be inclusive of both genders
Yasseen & Thomas v Republic of Guyana (676/96) Also, Harvard v Norway (451/91)
13
General Comment 13, paragraph 9
14
Burgos v Uruguay, (R.12/52) 29 July 1981- Report of the HCR (A/36/40) 1981 at 176; also, Acosta
v Uruguay, (110/1981), 29 March 1984, 2 Sel. Dec. 148.
15
Pinto v Trinidad and Tobago (232/1987), 20 July 1990 – Report of the HRC, (A/45/40), Vol. II,
1990, at 73
5
If a person does not have a lawyer of his choice to represent him, he must have
counsel assigned. While under article 8 (2) (e) of the American Convention the right
to have counsel assigned is inalienable16, the right under Article 14 (3) (d) of the
ICCPR, as well under Article 6 (3) of the European Convention, is conditional upon a
conclusion that the interest of justice require it.
Commenting on the issue of legal aid, the HRC addresses in the General Comment 13
that it “has not always received sufficient information concerning the protection of the
right of the accused to be present during the determination of any charge against him
nor how the legal system assures his right either to defend himself in person or to be
assisted by counsel of his own choosing, or what arrangements are made if a person
does not have sufficient means to pay for legal assistance...”17 (emphasis added).
The State is required to provide counsel free of charge to the accused if two
conditions are met. The first consideration is whether the interest of justice requires
that counsel be appointed, based on the seriousness of the offence, the issues at stake,
including the potential sentence, and the complexity of the issues. The second
requirement is that the accused does not have sufficient funds to pay for the service of
a lawyer.
In Henry and Douglas v. Jamaica18, the HRC has held that the interest of justice
requires that counsel be appointed at all stages of the proceedings for people charged
with crimes punishable by death, if the accused does not have the assistance of
counsel of choice.
In the case of O.F. v Norway19 the accused was denied legal aid by the State Party in
defending charges of a traffic offence. The State Party argued that there was no issue
raised under article 14 3(d) owing to the triviality of the offence (resulting only in a
small fine). The HRC concurred and held that the accused had failed to show that in
his particular case the interests of justice would have required the assignment of a
lawyer at the expense of the State.
Another case brought to the HCR in which the issue of the “interest of justice” was
raised is Lindon v Australia20. The case was also dismissed as inadmissible under
article 2 of the Optional Protocol. The complaint arose when the author was denied
legal aid in the context of raising an interlocutory application to defend against a
trespass charge. The case was dismissed because the “…Committee finds that the
author, for the purpose of admissibility, has failed to substantiate his claim that the
interests of justice require the assignment of legal aid.”
16
Article 8 (2) (e) Inter American Convention of Human Rights
17
HRC General Comment 13, paragraph 11
18
Henry and Douglas v Jamaica (571/1994) 26 July 1996, UN Doc. CCPR/C/57/D/571/1994
19
O.F. v Norway (158/83)
20
Lindon v Australia (646/1995)
6
With regard to this issue, the HRC in its Concluding Observations in relation to the
Report of Slovakia noted with regret that domestic legislation of that state only
enabled application for legal aid where offences attracted potential sentences of five
years or more.21
While it is apparent that the severity of the offence is an important factor when
deciding to grant or refuse legal aid in the context of “interests of justice” there has
also been a suggestion in the case law that a State may be entitled to refuse legal aid
on the basis of a value judgment on the objective chances of success, even in a case
where the severity of the offence is not in doubt. In Z.P. v Canada22 the Court upheld
the decision by the Canadian authorities to refuse legal aid in an appeal against a
conviction for rape on the basis of a perceived lack of merits in the appeal. Cases
concerning capital punishment would be an exception to this –denial of legal aid for
appellate proceedings in these cases has been considered a violation of article 14
3(d).23 This has subsequently been reinforced in other decisions concerning the death
penalty both at preliminary hearings and first instance 24 as well as at trial and
appeal.25
Another issue that can be considered relevant to this heading is the quality of
representation. The issue is addressed in the HRC Comment 1326 on commenting that
lawyers should be able to counsel and to represent their clients in accordance with
their established professional standards and judgment without any restrictions,
influences, pressures or undue interference from any quarter. The jurisprudence of
the HRC also dictates that when an accused is represented by assigned counsel, the
authorities have a special duty to take measures to ensure that the accused is
effectively represented27. In addition, that in the case of a lawyer representing an
accused on appeal, effective assistance, in the view of the HRC, would have included
the lawyer consulting the accused and informing him of the lawyer’s intention to
withdraw the appeal or argue that it had not merit.28 In Estrella v Uruguay29 the HRC
held that when an accused was offered only a limited choice of officially appointed
counsel and the counsel then adopted “the attitude of a prosecutor”, the accused’s
right to an adequate defense had been violated. If appointed counsel is not effective,
21
UN doc. CCPR/C/79/Add.para.19 (1997)
22
Z.P. v Canada (341/88)
23
Lavende v Trinidad & Tobago (554/93)
24
Wright & Harvey v Jamaica (459/91); Levy v Jamaica (719/96); and Marshall v Jamaica (730/96)
25
Thomas v Jamaica (532/93) Johnson v Jamaica (592/94) & Robinson v Jamaica (223/87)
26
HRC Comment 13, paragraph 9
27
Kelly v Jamaica (253/1987) 8 April 1991
28
ibid
29
Estrella v Uruguay (74/1980), 29 March 1983, 2 Sel Dec. 93
7
the authorities must ensure that counsel performs their duties or is replaced.30
The HRC also noted concern about “the lack of effective measures [in the USA] to
ensure that indigent defendants in serious criminal proceedings, particularly in state
courts, are represented by competent counsel”31.
II. Legal Aid and the European Convention for the Protection of Human Rights
and Fundamental Freedoms 195032 (ECHR)
Article 6 of the ECHR makes provision for the right to a fair trial.
Article 6: Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law...
3. Everyone charged with a criminal offence has the following minimum rights: …
b) to have adequate time and facilities for the preparation of his defense;
c) 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; …
e) to have the free assistance of an interpreter if he cannot understand or speak
the language used in court.
The issue of legal aid is categorically addressed in article 6 paragraph (3) (c), and its
importance is also implicitly recognized in the context of ‘fairness’ and the need for
adequate ‘facilities’ in accordance with paragraphs (1) and (3) (b).
Both the European Court of Human Rights and the European Commission of Human
Rights have examined and considered the issue of legal aid in the context of Article 6
of the Convention. The right to legal aid in civil matters is implied rather than express
and under the doctrine of “margin of appreciation” states have a considerable amount
of latitude in the means which they employ to meet the requirement of guaranteeing
effective access to justice. Limitations on access to legal aid in civil matters will not
30
Artico Case, 13 May 1980, 37 Ser. A 16
31
Comments of the HRC: USA UN doc. CCPR/C/79/Add. 50, 7 April 1995
32
213 U.N.T.S. 222, entered into force on September 3rd, 1953, as amended by Protocols 3, 5, 8 and 11
which entered into force on September 21 st 1970, December 20th 1971 and November 1998
respectively
8
automatically violate Article 6(1) unless the Courts finds on the facts that the absence
of legal aid has resulted in the effective denial of access to the court.
Legal aid in criminal cases
The guarantee of legal aid provided in article 6 (3) is not an absolute one. Through the
interpretation of article 6, the case law of the European Court of Human Rights
(hereafter “the Court”) indicates that a state party’s obligation to provide free legal
assistance is based on two types of requirement: those involving financial status and
those based on the “interest of justice.”
A state is under the obligation to provide free legal assistance to a person charged
with a criminal offence only if that person lacks sufficient means to retain the service
of a lawyer33. While neither the ECHR nor the Court has indicated what constitutes
sufficient means, the latter consistently uses certain criteria to determine whether a
person falls within this requirement. Such criteria include the specific circumstances
of the case, the persons’ background, and the economic situation in the country
involved. The burden of proof to demonstrate lack of sufficient means falls on the
person charged with the offence. In this last regard, the Court asserted in the case of
Pakelli v FRG34 that the applicant is not required to prove lack of sufficient means
beyond all doubt and that an offer to prove the lack of means in the absence of clear
indications to the contrary satisfies the requirements of Article 6.3 (c).
A state is required to provide legal aid to a person who lacks sufficient means to hire a
lawyer only if it is also necessary in the interests of justice. In determining the
“interests of justice”, the Court will consider the severity of the potential sentence, or
what is “at stake” for the defendant, as well as other factors such as the complexity of
the case as a matter of law and as a matter of fact, the public importance of the issue,
the ability of the accused to understand the case, and the ability of the unrepresented
litigant to provide his or her own legal defense.
In Quaranta v Switzerland35 the Court held that free legal assistance should be
granted even if there is little likelihood that the three-year maximum potential
sentence will be imposed. In examining the issue of “interests of justice”, the Court
held that there was a violation of Article 6 (3) (c) of the ECHR when a man was
denied free legal assistance during a judicial investigation and trial on drug charges.
The offence with which he was charged was punishable by up to three years’
imprisonment, and because the accused had allegedly committed the crime while on
probation for another offence, the issues before the court and the range of measures
33
Artico v Italy - Series A, Vol. 37 (1), 13 May 1980 - The Court has asserted that states parties are
required to
take steps to ensure that defendants enjoy effectively the right to free legal assistance
34
Pakelli v FRG - Series A, Vol. 64- 25 April 1983
35
Quaranta v Switzerland
- Series A, Vol. 205 – 23 April 1991
9
available to it were complex. In addition, the accused was a young adult and had a
long criminal record and history of taking drugs.
The right to legal assistance applies in all stages of the criminal proceedings,
including the preliminary investigation and before trial and during the appellate
proceedings. In Murray v United Kingdom the European Court has acknowledged that
the right to a fair trial normally requires an accused person to be allowed legal counsel
during the initial stages of police investigation. In that case the Court found that the
denial to the accused of access to counsel during the first 48 hours after his arrest was
a violation of article 6 of the European Convention. In Maxwell v United Kingdom36
the Court held that during the appeal of the defendant who faced a five-year sentence,
free counsel should have been appointed. Similarly in Boner v U.K 37 the Court
understood that the right to legal aid applies to appellate proceedings. Factors to
consider in determining whether the interest of justice require free legal assistance on
appeal include the nature of the proceedings, the powers of the appellate court, the
capacity of an unrepresented appellant to present a legal argument, and the importance
of the issue at stake in view of the severity of the sentence.
The right to legal assistance does not extend to guaranteeing the accused the right to
choose his or her official lawyer, or to be consulted by the Court on the question of
the lawyer’s selection. The Court has held that “when appointing defense counsel the
national courts must certainly have regard to the defendant’s wishes…However they
can override those wishes when there are relevant and sufficient grounds for holding
that this is necessary in the interest of justice”.38
Legal aid in civil cases
In the case of Golder v. United Kingdom39 the Court held that Article 6 “secures to
everyone the right to have any claim related to his civil rights and obligations brought
before a court or tribunal.”
As mentioned above, the right of access to the court is not an absolute one, and some
limitations on this right may be imposed in accordance with the ECHR if have a
legitimate purpose and are proportional to the goal they aim to achieve.
Notwithstanding such limitations, the ECHR guarantees “rights that are practical and
effective and not theoretical and illusory” and hence under Article 6 (1) the states are
obliged to secure to everybody an effective right of access to the courts.
Legal or factual limitations of this right may be found to be in breach of the ECHR if
36
Maxwell v United Kingdom - Series A, Vol. 300-C
37
Boner v U.K. – Series A, Vol. 300 – B – 28 October 1994
38
Croissant v Germany
39
Golder v. UK: judgment of 21 February 1975, Series A, No 18, para. 36
(62/1991/314/385) 25 September 1992
10
they impede an applicant’s effective right of access to the courts. Factual limitations
include the issue of excessive court fees.
In Kreuz v. Poland40 the Court held that while the requirement to pay court fees in
civil cases does not violate Article 6 (1) per se, any restriction of the right of access to
the courts should meet several requirements. To be compatible with Article 6 (1) a
restriction on the right of access should pursue a legitimate aim and there should be a
reasonable relationship of proportionality between the means employed and the
legitimate aim sought to be achieved. The issue at stake in Kreus was the refusal of
the domestic courts to grant an exemption from court fees amounting to the average
annual salary in the country concerned. Because the amount of the fee and the refusal
to grant a waiver in this case had resulted in the claim being discontinued, the Court
found that the authorities had failed to secure a proper balance between the interest of
the state in collecting court fees and the interest of the applicant in bringing his claim
to the courts. In these circumstances and in the absence of evidence of applicant’s
ability to pay, the Court found the fee excessive and the refusal to grant exemption in
violation of the applicant’s right to access to court.
To comply with their obligations under Article 6 (1), States may be required to take
positive steps to ensure an effective right of access to the courts for all.
The Convention does not explicitly provide for the right to free legal assistance for
civil cases. However in the case of Airey v Ireland41, the Court held that in some
circumstances the ECHR may require legal aid for indigent litigants in civil disputes.
Under article 6 (1), states are required to guarantee to every individual an “effective
right” to access to the court in determination of his or her “civil right and
obligations”42. The Court held that the mere possibility of appearing in person in the
proceedings would not satisfy the requirements of the Convention if it cannot be
reasonably expected that the person will be able to effectively represent her/himself.
The Court rejected the government’s argument that the ECHR guarantees only civil
and political and not social and economic rights and that hence the obligation to
provide legal aid is beyond the scope of the Convention. The Court held that
fulfilment of a duty under the ECHR may sometimes require “positive action on the
part of the State.” In such circumstances the State “cannot simply remain passive” and
“there is no room to distinguish between acts and omissions.”
40
Kreuz v Poland: judgment of 19 June 2001, Application No. 28249/95
41
Airey v Ireland - Series A, No 31 (1979-80) 3 EHRR 592
42
ECHR, Article 6 (1)
11
Although obliged to secure an effective right of access to the courts, States may select
the method of securing such a right. It could be guaranteed by providing legal aid in
civil cases, by simplifying the procedural requirements or through other means. Legal
aid might be required if legal representation is mandatory, or if there are complex
issues of law and fact. At issue in Airey was that the applicant was seeking legal aid in
order to obtain a decree of separation from her allegedly abusive husband in a
relatively complicated procedure.
III. Models of Legal Aid
1. Introduction
Approaches to the delivery of legal services to the poor vary as Gerry Whyte43
explains, based on whether the underlying philosophy focuses on addressing
individual need or addressing systemic inequalities.
At one end of the spectrum is a focus on service provision in individual cases. This
model is related to a charitable view of service provision based on alleviating the
immediate needs of the person rather than a commitment to the realization of rights or
to addressing in any fundamental way the biases of the legal system. Charitable legal
aid schemes, involving lawyers providing their service pro bono in individual
cases which were commonplace in England, the USA, Germany, France and Italy
during the 19th century and the earlier half of the 20th century.
Later on during the second half of the last century, a new wave of legal aid developed,
based on the philosophy that legal aid is an entitlement , and moving from
voluntarism to State provision of legal aid through paying private practitioners to
provide services (the judicare model). The weakness in this model is that it pays
little heed to the barriers which might prevent poor people accessing such an
entitlement. It relies on the client taking the initiative to seek help and ignores the fact
that private practitioners often lack expertise in areas of the law most relevant to poor
people, such as, for example, housing, welfare, and consumer law.
A third model of legal aid is the “salaried model” where lawyers are employed by the
State or non governmental organizations (NGOs) on a full-time basis to provide legal
services to indigent people. Depending on the underlying philosophy, such models
can remain primarily service- oriented or can take a more strategic approach based on
a commitment to law reform and involving research, advocacy and outreach activities,
43
Gerry Whyte, “Social Inclusion and the Legal System – Public Interest Law in Ireland” (2nd Edition
Institute of Public Administration, Dublin, Ireland - 2002)
12
the taking of “test cases”, and a focus on community involvement.
A fourth model is what Whyte describes as a “mixed-delivery” one, which combines
elements of the judicare and salaried models, the latter particularly, in its “strategic”
version. The “mixed-delivery” approach legal aid can be found for example in
Sweden, the Netherlands, and Quebec and Ontario, in Canada.
2. Legal Aid Systems
There is not a uniform system for the provision of legal aid. Some countries provide
assistance only in criminal cases; others provide both criminal and civil legal aid
under a single system; and some others use independent systems for criminal and civil
matters44.
In some legal systems, like in the United Kingdom, the courts decide whether to grant
legal aid in criminal cases. In others, such as in South Africa and the Netherlands,
the decision is made by a special governmental agency established to manage the
provision of legal aid. In the United States of America there are two systems for the
determination of granting legal aid: courts make the decision in criminal matters, and
not-for-profit legal aid organizations, operating under government guidelines, decide
in civil matters.
In the case of Australia 45 and South Africa 46 for example, there are special
governmental agencies which are staffed by government attorneys and may also refer
cases to private lawyers. In general, these agencies are responsible for the overall
management of the legal aid system, the organization of their budget, and the decision
for the granting of legal aid.
Although grounds for granting legal aid vary from country to country, the general
criteria adopted in most of the legal aid systems falls in two categories: financial and
legal.
To be eligible on grounds of financial needs, a person must demonstrate that they lack
sufficient means to hire the service of a lawyer. Financial eligibility can be established
by a financial statement or declaration of the person. Relevant factors situation may
44
Pursuing the Public Interest – Chapter 6: Access to Justice: Legal Aid for the Underrepresented.
Handbook published by the Public Interest Law Initiative available at www.pili.org
45
Legal Aid Commission – See list of Legal Aid Organisations in Australia at
www.fmc.gov.au/htm/links_aid.
Also, at www.legalaid.canberra.net.au
46
Legal Aid Board – Available information at
www.southafrica.info/public_service/citizens/yourights/legalaid
13
include the person’s income and property and dependants background.
To be eligible under the legal criteria, the main factor is the nature of the case.
Generally, legal aid is granted to defendants in all criminal cases where the interest of
the justice so require. In many countries, as in the case of South Africa and Finland,
legal aid is also granted in civil cases involving matters of divorce, alimony,
employment, administrative disputes and pensions.
a. Legal aid service mechanisms for criminal matters
International practice basically recognises the following models for providing defence
to indigent criminal defendants47:
a1. Assignment of an ex officio counsel
This system is probably the oldest one, and it is adopted today in most countries,
including Australia, South Africa, the United States of America, and most European
countries. However, only a few countries operate their legal systems exclusively on
this model.
According to this model, the courts, the bar, or other relevant agency appoints counsel
for indigent defendants and counsel’s fees are covered by state funds specifically
allocated for such a purpose. In many countries, counsels are appointed on a rotational
basis in accordance with their experience, expertise and complexity of the case.
Generally speaking, the system requires certain minimum criteria for the assignment
of counsel and provides for some form of supervision and professional training.
a2. Public Defender
Under the Public Defender model, a state regulated agency makes the decision on the
provision of legal assistance free of charge, assigns a counsel and covers the
respective fees. In this way, legal aid is provided by a government agency established
47
Judge of the Supreme Court of Bulgaria Roumen Nenkov: “Legal Assistance for Indigent
Defendants”; also
Pursuing the Public Interest – Chapter 6: Access to Justice: Legal Aid for the Underrepresented.
Handbook published by the Public Interest Law Initiative. Both references available at www.pili.org
14
to that end, and staffed by full time lawyers. This system is widely adopted around the
world.
a3. Contracting
This system has been recently adopted in the United Kingdom and many states in the
United States have organized their provision of legal aid based on this model. Under
this model, the legal aid board, state, country, or municipality contract with a law firm,
a local bar association, a non-governmental organization (NGO), or an individual
attorney to provide legal assistance in a certain number of cases for a fixed fee per
case. Law firms and NGOs may apply to represent indigent people in a given
jurisdiction. Contracts are signed for a period of time, and usually contain special
clauses guaranteeing the quality of the legal services provided.
a4. Law clinics
These are structures, in which law students or interns are engaged to work under the
supervision of an experienced lawyer. They may represent clients in court only in a
number of cases regulated by law.
b. Legal aid service mechanisms for civil matters
Legal aid in civil matters often involves a variety of issues that may include legal
information and referral, legal representation, community legal education, counseling
and advice, and mediation services, to name a few.
Legal Aid on civil matters may be provided directly by the government agencies,
NGOs or private legal practitioners. To ensure that legal aid and similar social
services are provided to the poor and other disadvantaged sectors of the society,
community organizations are a valuable resource in providing advocacy services,
assistance and support to vulnerable people.
There are many ways for providing civil legal aid services, most of which can be
grouped in the following categories48:
b1. Advice offices and hot lines
Community based, these are centres established to provide people with advice and
assistance in a wide range of problems, as well as to conduct activities aimed at
broadening citizen’s awareness by educating individuals about their rights and
48
Pursuing the Public Interest – Chapter 6: Access to Justice: Legal Aid for the Underrepresented.
Handbook published by the Public Interest Law Initiative, available at www.pili.org
15
entitlements. An example of this model is the Citizens Advice Bureaux that operates
in the United Kingdom.
b2. Staff attorney programmes
The primary mechanism for providing legal aid in civil matters in the United States of
America is through staff attorney programmes. These are private not-for-profit
organizations established for the explicit purpose of providing representation to
low-income people on basic issues such as housing, family law, employment,
consumer, and government benefits. In addition, they carry out advocacy activities
such as filing class actions, handling appeals on significant point of law and lobbying
for changes in the government, to name a few. They are usually governed by board of
directors composed mainly by lawyers, and funded by the federal government through
the Legal Services Corporation. Similar organizations to the U.S. staff programme
exit in the United Kingdom, Canada, Australia, among other countries.
b3. Private attorney programmes
Programmes in which private attorneys provide civil legal aid exist in many countries.
Most schemes operate a system whereby the state will compensate private attorneys
who provide civil legal aid. Sometimes referred to as no-cost legal assistance it is
based on income and the type of case. In the United Kingdom the system is now
operated by a Legal Service Commission (LSC) which replaced the Legal Aid Board
in April 2000. Operated as an entitlement which means that anybody considered
eligible by virtue of finance and legal problem shall receive legal aid. A similar
system operates, sometimes referred to as judicare, in some commonwealth countries
including South Africa.
In the United Kingdom the Community Legal Services (CLS) provides to eligible
clients legal assistance free of charge in cases including divorce, landlord disputes,
and immigration issues. In some cases indigent clients can avail of the service of
lawyers who work on a voluntary basis.
In the United States of America some law firms operate pro bono programmes. Some
states offer a variation on the judicare programme in which they use volunteer
lawyers to provide assistance to the poor.
B. LEGAL AID IN IRELAND
In Ireland, the right to legal aid is not explicitly established by the Irish Constitution.
However the issue has been considered by the Irish Courts on numerous occasions. In
16
Mac Mahon v Leahy,49 the Irish Supreme Court interpreted Article 40.1 of the Irish
Constitution as enshrining a right to equality of treatment before the courts 50. From
this and other implied rights under the Constitution, a limited right to legal aid can
result. In MacGairbhith v Attorney-General51 the need to provide people with legal
aid in order for them to avail of their rights guaranteed under the Constitution was
stated.
The provision of legal aid in this jurisdiction must be considered separately in relation
to criminal and civil law. While the right to criminal legal aid enjoys constitutional
status by virtue of a Supreme Court decision, the Irish courts have generally been very
reluctant to compel the State to provide civil legal aid and advice to individuals who
cannot afford the service of private practitioners, save for those cases involving
persons detained under mental health legislation and parties to wardship proceedings.
A possible explanation of the difference in treatment of these two rights may be the
argument that the right to criminal aid is necessary to protect the right to personal
liberty, which is at heart of liberal democracy, whereas the rights protected by the
right to civil legal aid might not be perceived by the judiciary as so central to the
liberal democratic project52.
The system of criminal legal aid and its civil counterpart differ in a number of ways.
First, from the start and unlike the scheme of civil legal aid and advice, criminal legal
aid did not have to be secured by judicial decision. As will be explained later, the
Scheme of Civil Legal Aid and Advice in Ireland was established in 1980 as a result
of the decision of the European Court of Human Rights in the case of Airey v
Ireland.53
The provision of criminal legal aid in Ireland dates back to 1924 when the new Free
State provided for legal aid in the case of defendants appealing against a death penalty
before the Court of Criminal Appeal.54 Later on, provision regarding legal aid was
made in s. 5 (1) (b) of the Courts of Justice Act, 1928 under which both the Supreme
Court and the Court of Appeal were empowered to direct that the cost of a re-trial
ordered by the court following on a successful appeal against a criminal conviction,
together with the cost of the appeal itself, be paid by the State.
The present criminal legal aid scheme was introduced in 1962 when the Criminal
Justice (Legal Aid) Act of that year gave the courts discretion to grant needy
49
McMahon v Leahy [1994] IR 525
50
McCauley v Minister for Posts and Telegraphs, [1966] IR 345
51
McGairbhith v Attorney-General
52
Gerry Whyte, “Social Inclusion and the Legal System – Public Interest Law in Ireland” chapter 7,
op. cit
53
Airey v Ireland, (1979-80) 2 ECHR 305
54
See Rule 43 of the Court of Criminal Appeal Rules, 1924
17
defendants legal aid in certain categories of cases. In accordance with the 1962 Act, in
the case of murder or in an appeal from the Court of Criminal Appeal to the Supreme
Court, an applicant for criminal legal aid had to satisfy the relevant court that they
were of insufficient means. In all other criminal cases, an applicant had to show that
the provision of legal aid was essential in the interest of justice by reason of the
gravity of the charge or of the exceptional circumstances of the case.55
Second, the provision of criminal legal aid in Ireland follows the judicare model,
where private practitioners who place their names in a panel are assigned by the
courts to defend needy defendants and subsequently reimbursed by the State. In
contrast, the civil legal aid and advice scheme is essentially a salaried model. The
Legal Aid Board (LAB) is the authority that administers the provision of state civil
legal aid. The LAB is mainly staffed by full-time salaried solicitors and barristers,
with some limited involvement of private practitioners.
The civil legal aid scheme was established as a response to the decision handed down
by the European Court of Human Rights in Airey v Ireland56 in 1980, and got
statutory footing in 1995 through the enactment of the Civil Legal Aid Act of that year.
Despite recommendations of the Pringle Committee Report57, the State civil legal aid
provision is firmly based on the service model of legal aid, with its emphasis on the
provision of conventional legal services to needy individuals, and is far from engaged
in a strategic model.
Third, an application for criminal legal aid is considered and granted or refused by the
court. In contrast, the application for civil legal aid and advice is considered and
granted or refused by the Legal Aid Board. The refusal to grant an applicant a
certificate for civil legal aid can be appealed, initially internally within the Legal Aid
Board and subsequently in certain cases by way of judicial review to the High Court.
Fourth, barriers to access to the law are also more straightforward in criminal cases
than in civil matters. Essentially, and as Gerry Whyte notes, “it all boils down to lack
of money on the part of the defendant and the coercive nature of the criminal process
means that a criminal legal aid scheme does not have to concern itself with difficulties
stemming from the defendant’s ignorance of his or her rights or from his or her sense
of alienation from the legal world, factors which can impede access to the law in civil
55
In The People (A.G) v Tyrrell [1970] IR 294 the Court of Criminal Appeal held that the 1962 Act
did not apply to an appeal which was simply against severity of sentence and not against conviction.
That was subsequently remedied by s.3 of the Criminal Procedure (Amendment) Act 1973
56
Airey v Ireland, op. cit
57
Pringle Committee Report on Civil Legal Aid, 1977. The Committee recommended that the State
should fund a “mixed-delivered” model of legal aid, embracing elements of both service and
strategic models.
18
matters.”58
While the provision of civil legal aid is means and merit tested, in criminal legal aid,
there is no formal means test (except in as much as the District Court may require
a Statement of Means) and no-cut off income level for the provision of criminal legal
aid.
Penultimately, unlike criminal legal aid, the provision of civil legal aid and advice is
not free of charge. Eligible applicants have to make some contributions to the overall
cost of the civil proceedings.
Finally, judicial intervention has had a greater impact on the criminal legal aid scheme
than on the civil legal aid one. The scope and operation of the criminal scheme has
been the subject of much litigation in contrast to the civil model. The constitutional
element of the entitlement to free legal aid in criminal matters was recognised in the
leading case of the State (Healy) v. Donoghue. Additionally, the courts have also
provided for some protection for the defendant’s right to have a solicitor of his/her
choice assigned to their case, as well as delineated the scope of the scheme.
I. Criminal Legal Aid
a. Criminal Justice (Legal Aid) Act, 1962 - The right to criminal legal aid
With the enactment of the Criminal Justice (Legal Aid) Act, 1962 indigent defendants
acquired a statutory entitlement to free legal aid. But it was not until the decision in
State (Healy) v Donoghue 59 that the right to criminal legal aid was given a
constitutional dimension. The Healy case is seminal in establishing that indigent
defendants in criminal proceedings have a constitutional right to legal aid.
In the case, Healy was initially charged with breaking and entering. He pleaded guilty
and was sentenced to three months. He was not notified of his right to apply for legal
aid under the 1962 Act, and hence, he was not legally represented. Subsequently,
Healy and a co-accused were charged with other offences and their application for
legal aid was granted. However, no solicitor appeared to represent them. Following
the failure of an application for adjournment, they were convicted and sentenced.
The applicants then consulted the Free Legal Advice Centre Ltd (FLAC) following
which legal proceedings were instituted to quash the convictions because of the
State’s failure to provide the applicants with legal aid. The Supreme Court
unanimously held that convictions could not stand. The reasoning behind the ruling
was first that although legal aid was granted to the accused, it was not implemented.
58
Gerry Whyte, “Social inclusion and the legal system – Public interest law in Ireland” op. cit
59
[1976] IR 325
19
Secondly, the Court found that the accused’s constitutional right to legal aid had been
violated.
The Court held that Article 38 of the Constitution made it mandatory that every
criminal trial should be fair in accordance with the concept of justice, that the
procedures applied should be fair and that the accused should be afforded every
opportunity to defend himself. The Court went to state that “…a person, who has been
convicted and deprived of his liberty as a result of a procedure which, because of his
poverty, he has to bear without legal aid, has reason to complain that he has been
meted out less than his constitutional due.”60
According to O’ Higgins C. J, the 1962 Act constituted legislative recognition of the
fundamental right of an indigent defendant to be legally represented. However that
Act laid down as a precondition for the grant of legal aid that the defendant must
apply for it to the court and this did not vindicate the defendant’s constitutional rights
for, “if a person who is ignorant of his rights fails to apply and on that account is not
given legal aid, in my view, his constitutional right is violated.”61 He added: “For this
reason it seems to me that when a person faces a possible prison sentence and has no
lawyer, and cannot provide for one, he ought to be informed of his right to legal aid. If
the person charged does not know of his right, he cannot exercise it: if he cannot
exercise it, his right is violated.”62
In the Healy case the Court interpreted that in any case where the defendant’s
constitutional right to legal representation applies and the defendant does not have the
financial means to secure that representation for himself, the State has a positive
obligation to provide for his legal representation. Although the Healy decision does
not prescribe any particular scheme which the State must adopt in order to satisfy this
obligation, O’Higgins C. J addressed that the Criminal Justice (Legal Aid) Act 1962
was sufficient to discharge the State’s obligation in the matter in so far as it provides
for free legal aid63.
As mentioned above, the right to criminal legal aid was placed on a statutory footing
in 1962 through the enactment of the Criminal Justice (Legal Aid) Act 64 of that year.
The act is based upon the principle of enabling the defendant to use public funds to
engage the service of a professional lawyer to conduct his defense and represent his
interest in any criminal proceedings. The Criminal Justice (Legal Aid) Regulations
196565 is the implementing legislation that establishes the conditions for its operation,
60
Ibid at p. 354
61
Ibid at p. 352
62
Ibid
63
State (Healy) v Donoghue [1976] I.R
64
Criminal Justice (Legal Aid) Act, 1962
65
Criminal Justice (Legal Aid) Act, 1965
20
setting out and amending from time to time fees and expenses payable to solicitors
and counsels for their work under the scheme, as well as certain expenses of defense
witnesses.
Under the 1962 Act an application for legal aid is made to the District Court, and
covers certain District Court proceedings, proceedings in the trial court, appeals and a
case stated. To be able to benefit from these, the defendant must obtain the
appropriate legal aid certificate. There are five certificates in all, each one
corresponding to the relevant stage in the criminal process. The certificates are: Legal
aid (District Court) certificate; legal aid (trial on indictment) certificate; legal aid
(appeal) certificate; legal aid (case stated) certificate and legal aid (Supreme Court)
certificate.
The criteria which must be satisfied for the Court to grant a certificate for free legal
aid are:
a) that the means of the person charged before it with an offence are insufficient to
enable them to obtain legal aid66 and
b) that by reason of the gravity of the charge or of exceptional circumstances it is
essential in the interest of justice that he should have legal aid in the preparation and
conduct of his defense before it67.
It is clear that the last requirement will render it difficult to secure legal aid for
offences which will be tried summarily unless the circumstances are such that the
defendant can expect a term of imprisonment or the consequences of a conviction will
be seriously damaging to his character.
Pursuant to the 1962 Act, the defendant must actually apply for legal aid. However, as
it was seen before in the Healy case, the failure to satisfy this requirement will not be
fatal if the defendant was not aware of the existence and purport of the free legal aid
scheme.
The Court has an exceptionally broad discretion in interpreting and applying the
qualifying criteria. If it appears to the court that the criteria are satisfied in a case, it
(the District Court or other court of first appearance) must grant the applicant a legal
aid certificate and a solicitor assigned to him or her. Decisions to refuse legal aid can
be appealed except in the case of the District Court certificate68. If the defendant
faces a charge of murder, s/he will automatically be eligible for a legal aid certificate
covering representation by both counsel and a solicitor.
66
S. 2 (1) (a) Criminal Justice (Legal Aid) Act, 1992
67
S. 2 (1) (b)
68
Criminal Justice (Legal Aid) Act 1962, S. 2 (2)
21
Once a defendant has been granted a legal aid certificate, a solicitor (and counsel if
the case requires) is assigned to him or her from the panel maintained by the Registrar.
In general, requests by the defendant for a specific lawyer from the panel are
accommodated, although an individual solicitor or barrister’s acceptance of a case is
voluntary. Indeed, there is no specific legal obligation on either solicitors or barristers
to participate in the free legal aid scheme. They are free to opt in and, subsequently, to
opt out.
With regard to the issue of quality of legal representation, the Supreme Court in the
Healy69case linked the right to free legal aid to the accused’s constitutional right to a
fair trial.
The Supreme Court held that there are circumstances in which the accused’s right to a
fair trial depends on the availability of professional legal representation. Without the
benefit of such legal representation the defendant might be denied the equality of
arms with the prosecution which was essential to vindicate his right to a fair trial.
Where the accused could not afford such representation, therefore, the state was under
a duty to make it available to him. In most cases this duty would be satisfied simply
by the state paying for the accused’s legal representation. However, if that
representation was so defective that the accused was denied equality of arms with the
prosecution, the mere fact that the state paid or was willing to pay for it could not
avert the fact that the defendant had been denied a fair trial.
The criminal legal aid programme is funded by public funds. Lawyers are paid a set
fee for each court appearance and a smaller fee for each subsequent appearance on
behalf of a given defendant.
Last, there are criminal cases for which a criminal legal aid certificate will not be
granted. These include matters that are not considered by the District Judge to be
sufficiently serious, extradition proceedings and most judicial review proceedings. In
addition, criminal legal advice is excluded from the criminal legal aid scheme
provided by the 1962 Act. However, some matters that are not eligible for legal aid
certificate under the 1962 Act may be covered under special schemes, as follows.
b. The Attorney General’s Scheme
Towards the end of 1967 an undertaking was given in the Supreme Court on behalf of
the Attorney General and the Minister for Finance to the effect that the State would
defray the fees payable to the solicitor and counsel for habeas corpus applications
where the applicant was not in a financial position to engage such professional
69
State (Healy) v O’ Donoghue [1976] I.R. 325
22
representations70.
The undertaking was given in respect of the application in hand –at the time, the
Application Woods71- and in respect of future applications. This non- statutory72
arrangement has been extended to include bail motions, judicial review proceedings
which consist of or include certiorari, mandamus or prohibition and which are
concerned with criminal matters or matters where the liberty of the applicant is at
issue; applications under section 50 of the Extradition Act 1965 and extradition
applications before the District Court73.
Legal aid is available under the Attorney General’s Scheme whenever the applicant’s
means is insufficient to obtain the necessary legal representation and the court in
question considers that it is proper that a solicitor and counsel should be assigned to
make submissions in support of an application. The scheme does not work as an
alternative to costs. The application must be made at the commencement of the
proceedings to which they relate.
c. Garda Station Legal Advice Scheme
This scheme was established in February 2001 on a non-statutory basis to be reviewed
after one year. The scheme applies to persons detained in police stations for the
purpose of the investigation of an offence under the Offences against the State Act
1939, the Criminal Justice Act 1984 or the Criminal Justice (Drug Trafficking) Act
1996. Where such a detainee has a legal entitlement to consult with a solicitor and his
or her means are insufficient to enable him or her for such consultation, the
consultation with the solicitor will be paid for by the State in accordance with the
scheme.
It would appear the scheme operates a strict test for qualification on the ground of
insufficient means, meaning in practice that to be eligible, a detainee must be in
receipt of social welfare payments or earning less than €20,315 per annum.
II. Civil Legal Aid
a. The introduction of civil legal aid – The role of the NGO sector
70
See Criminal Legal Aid Review Committee: Final Report (Dublin – Stationery Office – February,
2002)
71
Application Woods [1970] I.R. 154
72
The Criminal Legal Aid Review Committee: Final Report, 6.7.1.(Dublin – Stationery Office –
February, 2002), recommends that the Attorney General’s Scheme should be put on a statutory
footing and brought within the scope of the Criminal Legal Aid Scheme
73
Available at
http://www.irlgov.ie/ag/ago
23
As a result of the campaign initiated by FLAC in the beginning of the seventies for
the introduction of a State sponsored scheme of civil legal aid, in 1974 the
government commissioned the Pringle Committee 74 to examine the question of
access to the law for those of low incomes and to make recommendations as to the
type of scheme which would be most appropriate to tackle the problem.
Published in 1977, the Pringle Report recommended that the State should fund a
“mixed-delivery” model of legal aid, embracing elements of both service and strategic
models. Although the report was never properly implemented, it advocated the
implementation of a comprehensive nationwide scheme of civil legal and advice,
the creation of an independent Legal Aid Board appointed by the government whose
responsibilities would be educating the public as to their legal rights and evaluating
the results of its own work, that legal services would be provided both by lawyers in
private practice and by lawyers employed in Community Law Centres and that
applicants for such services would have to undergo a means test.
Yet, it was not until 1979 following the decision of the European Court of Human
Rights in “Airey v Ireland” that Scheme of Civil Legal Aid and Advice was introduced
and the first Legal Aid Board appointed. The applicant was seeking legal aid in order
to obtain a judicial separation from her husband in a relatively complicated legal
procedure. In her submission to the European Court of Human Rights, Ms. Airey
stated that her right of access to the courts guaranteed by Article 6 (1) of the
Convention was violated because she was unable to obtain a judicial separation due to
the prohibitive cost involved. The Court held that although the European Convention
of Human Rights contains no provision on legal aid for civil disputes, Article 6 (1)
may compel states to provide free legal assistance when such assistance proves
indispensable for effective access to the courts, either because legal representation is
mandatory under domestic law or because of the complexity of procedure or the case.
In 1979, the first Legal Aid Board Law Centre was opened. The proposal of the
Pringle Report that the provision of legal aid should be a comprehensive one was
rejected. The scheme only provided for one aspect of securing access to justice, the
expense involved75. The scheme was considered to be inadequately funded and one
that had necessary limitations on the types of cases it covered.76
In campaigning for a comprehensive and properly funded civil legal aid system,
FLAC joined with other 11 organisations77 in applying pressure to the government to
74
Pringle Committee Report on Civil Legal Aid, 1977
75
Gerry Whyte, “And Justice for some” an article published in “The Closed Door, a Report on Civil
Legal Aid Services in Ireland,” page 19
76
Irish Times, October 14th, 1996
77
Among those organisations it was included the Coolock Community Law Centre (CCLC). The
community-based centre was created to undertake casework, to provide community education and to
24
achieve that aim and established the Civil Legal Aid Alliance in 1992.
The scheme was finally placed on a statutory footing with the enactment of the Civil
Legal Aid, Act, 1995. Pursuant to the Act, a Legal Aid Board was established. The Act
was as restrictive as the old scheme and did not provide for the implementation of the
report of the Pringle Committee. The primary focus of the Act was on providing legal
advice and to some extent representation in individual cases. It did not make any
substantial alteration to the Civil Legal Aid Scheme. The main goals of the act were to
give the Legal Aid Board a legal identity with a guarantee of permanence and to
improve the Board’s position as regards recovery of costs.
b. The Civil Legal Aid, Act 1995 and Regulations – A general overview
The Legal Aid Board administers the civil legal aid scheme in Ireland. The Board was
set up on an administrative basis in 1979, and was established as a statutory body on
11 October 1996. The board provides legal aid and advice in civil cases to persons
who satisfy the requirements of the Civil Legal Aid Act, 1995. The provision of legal
services is available to individuals regardless of nationality or residence. Businesses
are not eligible.
Legal Advice is defined as any oral or written advice provided by a solicitor or
barrister, including writing letters and negotiations; advice can be provided to persons
contemplating taking proceedings before any court or tribunal. Legal Aid is any
representation by a solicitor or barrister in court proceedings; representation before
tribunals is excluded except for asylum/refugee cases.. A specialised legal service is
afforded for those seeking asylum through the Refugee Legal Service (RLS)
Legal services are afforded primarily through the Law Centres established by the
Board throughout the country. In certain matters, such as refugee law, there is limited
provision for representation through a panel of solicitors/barristers in private
practice78. People seeking legal services can contact their nearest Law Centre to
campaign for law reform in 1975. CCLC, now North-side CLC, is an independent Law Centre and is
managed by a committee including representatives of the local community. More recently, in 2002
another community law centre was created in Ballymun, the BCLC. The community based legal
service seeks to provide community legal education and service to local community groups operating
in the area. In addition, in 2003 the Independent Law Centre Network (ILCN) was also established
when a number of organisations (Irish Travellers Movement Legal Unit, Immigrant Council of
Ireland, Ballymun CLC, North-side CLC, FLAC) decided to meet regularly to further the
development of the independent/community law centre movement.
78
Through the Private Practitioner Scheme, lawyers in private practice were available to provide
services to those seeking remedies under the Domestic Violence legislation in the Dublin area.
Outside Dublin, services also included maintenance and/or custody and access proceedings. The
system is not operating at the moment due to funding constrains.
25
undergo a means test. If they are eligible, they will then be put on a waiting list for an
appointment with a solicitor. There is a priority system for matters classified as
urgent.79
The provision of legal service is both means and merits tested. Applicants who are
financially eligible must first wait for a legal aid certificate to be issued, specifying
the legal services being granted, and pay the contribution that is indicated. To be
financially eligible, a person must currently have a disposable income of less than
€13,000 and disposable capital of less than €320,000.
The Board must also be satisfied, before legal aid is provided, that it is reasonable to
take or defend proceedings having regard to the merits of the case. The criteria
considered include the prospect of success in the proceedings, and the availability of
any method, other than court proceedings, for dealing satisfactorily with the problem,
for example, mediation. The probable cost to the Board of providing legal services is
measured against the likely benefit to the applicant if he/she is successful in the
proceedings. The merits test is modified in cases involving the welfare of a child,
including custody and access.
c. The right to civil legal aid - Relevant Irish Jurisprudence
Although the 1995 Act has provided for a statutory right to civil legal aid, the Irish
courts have been reluctant to consider the right to civil legal aid to be a constitutional
right. In the case M. C. v Legal Aid Board80 the plaintiff had applied to the Legal Aid
Board for legal aid in respect of nullity proceedings brought by her husband. Her
application was deferred due to backlog work and inadequate staffing level. As a
result, no decision was made by the Legal Aid Board in consideration to her
application. She then instituted proceedings against the Board arguing that the
Scheme of Civil Legal Aid was a purported compliance by the State with its
constitutional duty of affording the applicant access to the court and that the
continuing unreasonable delay in processing her application for legal aid amounted to
a deprivation of her right of access to the courts. This argument was dismissed by the
High Court finding that the existence of the nullity proceedings does not confer any
duty on the State nor on any of the respondents either of the parties thereto either
under the Constitution or at law and that the duty of administering justice and
adjudicating by due process does not create any obligation on the State to intervene in
any private civil litigation so as to ensure that one party is as well equipped for their
dispute as is the other. The Court went on to say that the fact that the existence of
fundamental personal rights is expressly recognised by the Constitution does not
impose on the State any duty to intervene in aid of a party involved in any private
civil dispute in relation to any such personal right and that there is no provision in the
79
Ibid
80
M. C. v The Legal Aid Board [1991] 2 IR 43
26
Constitution which imposes a duty on the State to provide any form of support for
civil litigation among citizens81.
Since the enactment of the 1995 Act, similar cases that were instituted against the
Legal Aid Board on grounds of delay in the provision of legal aid have also failed. In
the case of Kavanagh v Legal Aid Board82 a woman who had to wait more than a year
and a half for the State to provide her with civil legal aid took the case to the High
Court to be compensated for such a delay. The Court ruled that the Board was not
liable for damages, finding that at the time the woman made her application all
evidence proved that the Board’s resources were limited and stretched. Based on
Section 5 of the 1995 Act83, the Court was satisfied that the language of the section 5
was plain and obvious, and hence, that legal aid should be provided within the board’s
resources as the board had done. The case is currently under appeal to the Supreme
Court.
d. Perceived gaps in the civil legal aid scheme
The regime of civil legal aid in Ireland is open to criticism. From the start, the
statutory scheme is not comprehensive –cases going before social welfare appeals
officers and the Employment Appeals Tribunal are excluded, as well as representative
actions and test cases. 84 The present system in operation is under-funded and
under-resourced, meaning that people on low incomes are waiting over one year for
appointments with solicitors in the State’s Law Centres. It is also arguable that there is
not a periodical review of the financial limits on eligibility which leaves open the
probability that inflation has been restricting the category for eligible applicants.
This effectively means that many people with inadequate resources are being denied
access to the Irish courts and raises the question to whether the State has complied
fully with its obligation under Article 6 (c) of the ECHR.
For the last four decades, FLAC has been campaigning for a more comprehensive
system of civil legal aid in Ireland, and in that regard, it has been following the work
of the Legal Aid Board in the provision of civil legal aid. The following are the
81
Similar reasoning was held in Corcoran v Minister for Social Welfare [1991]; [1992] ILRM 133 in
relation to administrative proceedings
82
83
High Court, October 24th, 2001
Civil Legal Aid, Act 1995 S. 5 states that the principal function of the Legal Aid Board shall be to
provide within the Board resources and subject to other provisions of the Act, legal aid and advice in
civil cases to persons who satisfy the requirements of this act
84
The Family Law and Civil Legal Aid Committee of the Law Society of Ireland recommended in its
Report on Civil Legal Aid in Ireland (Law Society of Ireland, 2000) that the remit of the Legal Aid
Board be extended to include tribunal work, test cases and representative actions subject only to the
merits test in the particular case – See page 8 of same.
27
particular areas of concern for the organisation regarding the current system in
operation.
Lack of public awareness of the Legal Aid Board
Equal access to justice requires that all members of society be aware of their rights
and obligations. In line with the decision of the European Court of Human Rights in
the Airey
Case, the State has an obligation to take such positive action as may be necessary in
order to secure the effective right of access to the Courts. FLAC’s view is that the
failure to publicise the Scheme adequately may constitute a violation of Article 6 (1)
of the European Convention on Human Rights and Fundamental Freedoms.
The Legal Aid Board has produced a range of leaflets and forms and developed a web
site to inform the public about its service; however, available evidence seems to
indicate that the Scheme has not been adequately publicised. Those who are entitled
to use the assistance of the Legal Aid Board are generally persons on a low income;
many of them may not be familiar with the use of information technology, may be
unaware of the service and the location of the law centres, or may find the system
itself too intimidating. Moreover, some people still confuse FLAC with the Legal Aid
Board’s Law Centres. There is also a lack of awareness that issues other than family
law may be covered by the scheme.
Waiting Lists
Article 6 of the European Convention on Human Rights and Fundamental Freedoms
is intended to guarantee the right of effective access to the courts. Persons, who
cannot afford their own solicitor and meet the criteria for Civil Legal Aid as a result of
long delays, are effectively being denied this fundamental right of access to the
courts.
The latest figures published by the Legal Aid Board in April 2003 show that in almost
one third of the States’ 30 law centres, clients faced waiting times of at least seven
months for an initial appointment with a solicitor. As a result of these backlogs,
hundreds of people are being denied prompt access to justice. FLAC monitors the
trend in delays at Legal Aid Board Law Centres, and its view is that no noticeable
progress has been made in recent years85.
Furthermore, two factors have exacerbated waiting times at law centres. In first place,
the cutting of the Legal Aid Budget for 2003 from €17.6m to € 17.075m has meant
85
Wicklow law centre had the longest waiting time of 13 months; the waiting list was10 months in
Nenagh, Co Tipperary,
9 ½ months in Brunswick Street in Dublin and 8 months in both Cork City
Centres
28
that plans to recruit additional solicitors appear to have been frozen. Solicitors and
administrative staff leaving the Law Centres or going on maternity leave are not being
replaced leading to longer waiting lists. Secondly, the termination of the Private
Practitioner Scheme in the Dublin District Courts in relation to maintenance, access,
guardianship and custody applications has meant that these cases now have to be
handled through the Law Centres and are subject to the waiting list.
Eligibility
1. Means Test:
The Scheme does not provide for a periodic review of the financial limits on
eligibility. The amount of allowances is not linked to a variable such as Consumer
Price Index or the average industrial wage, resulting in the exclusion of many needy
potential litigants. The financial limits on eligibility have only been revised in 1996
and 2002. A five-year review is not
adequate in view of the rapidly increasing cost of living. FLAC feels that yearly
reviews are essential to ensure that inflation does not restrict the category of eligible
applicants.
2. The Scope of Legal Aid
In practice, the Legal Aid Scheme is almost exclusively a family law service.
According to the Legal Aid Board Annual Report, 200186, the Legal Aid Board dealt
was involved in a total of 3,992 Family Law proceedings through its Law Centres and
a total of 2,293 through Private Practitioners, against 232 Non-Family Law Cases.
With regard to the latter, cases included: Tort: 26; Contract: 11; Employer/Employee:
1; Debt: 8; Landlord/Tenant: 10; Miscellaneous: 33; and Refugee Legal Service
Judicial Review: 143.
At present, Legal Aid is not provided for representations at tribunals. Section 27 (2) (b)
of the Civil Legal Aid Act, 1995 which allows for the scope of the legal aid scheme to
be extended to tribunal representation has never been commenced. Effectively this
means that people pursuing social welfare appeals or employees appearing before the
Employment Appeals Tribunal or Equality Tribunal are very often unable to secure
legal representation as they are likely to be unable to afford a private solicitor.
Representative actions and test cases are also excluded. As mentioned above, the civil
legal aid scheme only applies to individuals; no provision was made for legal aid to
community groups. Section 28 (9) (viii) states that legal aid shall not be granted
where the proceedings are brought by the applicant as a member of and by
86
Legal Aid Board Annual Report, 2001,– Appendix 2, Statistics for 2001, Table 3: (a) Law Family
Cases and (b) Non-Family Cases
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arrangement with a group of persons for the purpose of establishing a precedent in the
determination of a point of law, or any other question, in which the members of the
group have an interest. In other words, “test cases.”87
Test cases have always been regarded as a useful vehicle for bringing about changes
in the law; their exclusion from the scheme is a clear indication that the State
understands legal aid as being primarily about the servicing of individual cases rather
than about achieving law reform.
The lack of accountability for refusal of legal services
Section 7 of the Civil Legal Aid Regulations, 1996, states that where a legal aid
certificate is refused the Board must convey its decision in writing and state the
reasons for refusal. However, current statistics from the Legal Aid Board do not
record reasons for refusals.
87
It should be noted that the description of “test cases” in sub-para (viii) allows the Board to provide
legal aid to an individual who is pursuing a case, the outcome of which may affect many other in a
similar situation:
S. 28 (9) (d) “An application for a legal aid certificate shall not be refused by
reason only of the fact that a successful outcome to the proceedings for the applicant would benefit
persons other than the applicant”
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CONCLUSION
Human rights international law highlights the inherent dignity and worth of every
human being. In its broadest application the human rights system seeks to protect
every individual’s civil, political, economic, social and cultural rights. The system is
based on the principle of equality and on the belief that the law is a fundamental tool
to achieve its objectives.
Access to justice is an imperative in human rights law. That all persons can avail
themselves of the judicial resources afforded by the legal system to protect their rights
is essential in a democratic State that purports to be guided by the principles of rule of
law and equality. It is in the pursuit of an agenda of equality that the question of legal
aid becomes relevant.
For those who cannot afford the service of private practitioners, legal aid is the only
mechanism possible to ensure that their rights are effective and not just a mere
illusion.
An appropriate system of legal aid is crucial for the effective guarantee of human
rights.
Despite this, the guarantee of legal aid in non-criminal matters is not strongly framed
by the different international human rights treaties,
If human rights are indeed indivisible, interrelated and interdependent, there are no
substantive reasons why the procedures for their protection should be different.
Human rights do not derive stature from their justiciability and as such, although the
absence of international remedies for ESC rights violations may weaken the full
enjoyment of such rights, this does not derogate from their inherent quality as human
rights.
The fact that may Western societies are keener to recognise and safeguard civil and
political rights over socio-economic ones has given rise, certainly in an Irish context,
to substantive differences in the quality of access to the courts that a person of limited
means can expect in civil and in criminal matters88.
This is not to say that the current criminal legal aid system if transposed to deal with
civil matters would provide the best solution. On the contrary, provision of legal aid
across the board would benefit from a broader perspective which is open to exploring
barriers to access not only from the legal point of view, but also from a sociological
88
See hypothetical case study in the Appendix of this paper. The case illustrates a typical consultation
at FLAC
centres
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one.
Legal aid should be guaranteed by the states to those who cannot afford the services
of a lawyer as a necessary condition to avail themselves of their right of access to
justice. The right of access to the courts is a fundamental right in itself. Failure to
guarantee the citizens of a state access to its courts undermines the principle of rule of
law, rendering the legal system meaningless. The challenge is for States be willing to
commit resources to the provision of access to the courts in order to safeguard rights
outside the narrow and well-defined boundaries of those rights at stake in the criminal
process.
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Appendix:
Case Study
Jack Murray left school at 16 and has been employed in the local factory for the last
15 years until its closure last year. He has a wife and two young children.. He has
always had something of a drink problem, combined with depression. This has
become worse since he lost his job.
When out drinking one night he gets involved in a brawl. Blows are exchanged,
Jack strikes a man with a bottle. He is taken to the Garda station charged with assault,
various public order offences and resisting arrest. The station sergeant offers him the
option of having a solicitor present during questioning. As he doesn’t know a solicitor
himself the sergeant calls one from the list in the office. A solicitor attends and
advises before he makes a statement. He is released on bail. On his first
appearance in court and every subsequent appearance his solicitor is present in court.
Ultimately he receives a suspended sentence, due to his solicitor’s strong argument as
to mitigating circumstances the fact that it is his first offence, and his offer, on his
solicitor’s advice of compensation to the injured party.
At the same time, Jack is having serious marital difficulties. Following a row in the
home during which he hits her, his wife obtains a barring order, removing him from
the family home. Both are unrepresented in court at the time. Jack does not handle
the situation well- he is confused and angry and becomes aggressive in court. His wife
is awarded the barring order. He does not have enough means to secure
accommodation and lives with other family members and friends.
His wife, who had applied for legal aid some months earlier when their marital
difficulties worsened, issues him with separation papers. She seeks sole custody of his
two young children, seeks maintenance for herself and the children, and is asking for
the house, owned on a shared ownership scheme with the local authority, to be put in
her sole name.
Jack attends the local Legal Aid Board Law Centre. He is referred to a diffirent centre
some distance away as his wife is already a client of that centre. He travels into
town to the other centre. The means test is administered and he is told he is eligible
for legal aid and will be required to make the minimum contribution of €35. However
there is currently a 10 month waiting list and he will not see a solicitor before this
time.
In the meantime, problems arise during his access visits to the children and his wife
decides to refuse him access. He is advised by a friend to go to the District Court to
apply for access. He attends the District Court Office, completes the forms with the
assistance of the clerk and is given a date to attend court. He is paying maintenance
33
only sporadically and the following week receives a District Court summons for
maintenance to be heard at the same time. He contacts the Law Centre again and is
told that there will not be a solicitor available to represent him. Neither is it possible
for him to speak to a solicitor for advice as he is still on the waiting list. He is given a
letter stating that he has been awarded legal aid and is waiting to see a solicitor, which
he hands to the judge on the day asking for the matter to be put off.
The judge
reluctantly adjourns the case for one month. On the second appearance, Jack hands
in a similar letter. The judge refuses to adjourn the matter again. Jack has not prepared
and is able to give only vague information to the court about his income and
expenditure. His wife’s solicitor argues that he is unstable and has no suitable
accommodation in which to have overnight access with the children. Again he
becomes frustrated and aggressive when questioned by his wife’s solicitor.
Maintenance is awarded to this wife and children in a sum which he will find
extremely difficult to pay. If he defaults, he ultimately faces prison. He is awarded
very restricted access to take place in his wife’s parents’ house. .
Before Jack’s appointment with a solicitor comes round, he has defaulted on
maintenance over a period of several months and is facing a committal hearing and a
possible jail term. He has seen his children very infrequently, and he is now living in
a hostel due to his inability to secure other accommodation. His drink problem has
worsened considerably, and his chances of obtaining improved access to his children
are limited.
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