How habitual offenders benefit from Legal Aid, while ordinary citizens pay

A thin and sickly-looking man walks into a district court in session in the Criminal Courts of Justice building in Dublin. Like so many of the clients of the court, he’s an obvious drug addict. He’s barely noticed by anyone. The courts are generally busy, noisy places anyway with people coming and going and whispered conversations going on between clients and solicitors as the judge deals with the scores of cases of a morning.

The thin man walks to the front of the court and taps a barrister on the shoulder. “I need a solicitor”, he says. He has a strong Dublin accent and speaks with the slow, thick-tongued mumble that marks him out as a methadone user. The barrister looks around. There’s a flash of recognition and he says to a colleague that the man needs a solicitor. The colleague gets up and walks briskly out of the court with the man for a consultation out in the foyer. That’s how criminal legal aid works.

That’s not how a working person gets a solicitor. If a working person wants a solicitor that person will make an appointment and then pay. Even a person on welfare isn’t guaranteed free legal aid. Say, an old age pensioner finds himself charged with Careless Driving. He believes the charge to be unfair so he decides to contest it and wants a professional to act for him in court. His problem is that he has always lived an honest life. So as a person with no previous convictions he is not deemed to be “at risk”, that is, at risk of imprisonment. So no free legal aid. The addict, because of his impressive list of previous convictions, is always “at risk”, no matter how minor his latest charge. And worse for our pensioner, he is unlikely to generate repeat business for the solicitor. The addict, by contrast, will generate payments for not just his current case but probably for many more cases to come. That’s why the pensioner will wait his turn to see the solicitor and the addict does not. The addict gets what he wants. And then some.

I was reporting from outside the district court in Carlow a few years back.  A young woman came out and told me she had just been up for shoplifting. She told me she was now dealing with her heroin habit and wanted to leave her life of crime behind her. So how had she got on in the court just now? “It was put back. I was going to plead guilty but my solicitor applied for a Gary Doyle order.”

For readers who are neither legal professionals nor habitual criminals, I’ll explain that a Gary Doyle order is a court order that allows an accused person to get discovery of evidence against them, typically CCTV footage, named after a right established by the eponymous Mr Doyle in a case involving him in 1994. Every day of the week in our courts, you will hear Gary Doyle orders being applied for in shoplifting cases. If the CCTV images prove to be of low quality then the accused may plead not guilty. If good quality, the accused will plead guilty and ask the court to accept their sincere remorse. Common sense might suggest that only guilty people in shoplifting cases will look to see CCTV evidence in advance but that’s not an inference that a court of law is allowed to make.

The young woman in Carlow believed her solicitor was acting in her best interest. I question that. When the case would eventually come up, the defendant, if found guilty, will have lost her chance for mitigation for an early guilty plea; many hours of Garda work and preparation of CCTV evidence will have been necessitated by the not guilty plea. The only clear winner in all of this, no matter what the outcome, is the solicitor. More court appearances means more fees.

But it’s in drink drive cases, in my experience, that you see the most extravagant use of free legal aid. Drink drive penalties are mandatory so there is no leeway for a judge to give credit for an early guilty plea. That’s why solicitors will tell you that you should never, ever plead guilty to drink driving. You have nothing to lose, they will tell you except, of course, the fee you will have to pay to them. But if free legal aid is available, even that fee is paid by the state so the accused person has no incentive at all to plead guilty.

It was in Carlow again, as it happened, that I spoke to a married couple outside the court about the drink drive case the husband was about to face. A Garda intervened to tell me that the man was in custody and I could not speak to him. It turned out that he was already serving a sentence for another conviction but had been brought to court that day to answer the charge of drink driving for which he had been arrested before his current imprisonment. I stopped the interview but not before the wife, who was happy to speak, told me the defence her husband was about to put up was stupid.

The case was called and over the next hour or so we heard the arresting Garda and then the station Garda give their detailed evidence. This is standard. Defence listens for any flaw in the Garda case. The taking of the urine sample is always subjected to particular scrutiny. There are three men present for this: the Garda, the doctor and the man providing the sample. It’s not a complicated procedure, you may think. But many a drink drive prosecution fails when a defence solicitor spots some flaw in how this procedure has been carried out.

In the Carlow case, the Garda evidence came to an end and Defence didn’t ask to cross-examine. So the Garda case must have been flawless. Then the solicitor came to his feet and gave the defence which the accused man’s wife had told me would be stupid. It was. The solicitor told the court he was instructed that the night his client had been arrested in a crashed car in a ditch on a country road, the real driver had fled the scene. That man was now living in Wales and could not be contacted and was therefore not in court to give evidence. The judge delivered a guilty verdict. He gave the man a driving ban and a fine with a prison sentence in default. The man hugged his wife as he left the court to be taken out to the van to head back to prison.

Think about how much that case cost us all. There was the hours of court and Garda time. The preparation of the Garda case. The cost of transporting the accused man from and back to whatever prison he was serving his time in. The accused man incurred no loss. The winner of the day was his solicitor.

In my view, people on criminal legal aid should have to pay something towards their legal costs. After, say, ten criminal convictions, a habitual criminal should have to allow a small weekly deduction from his welfare payment to go towards his legal costs. If the accused defends a case over several appearances then costs will increase. That way a person on legal aid will have to assess whether or not to defend a case, in the same way that a working person has to.

Of course, our legal profession will be outraged by my suggestion. They don’t want their source of regular income to be interfered with in any way. But I have compensation in mind for our solicitors. Let’s get rid of the “at risk” pre-condition for legal aid. That way generally law-abiding people, such as our pensioner on the Careless Driving charge, will also get legal aid if they need it and the solicitor will be paid on their behalf. Let’s make legal aid available to whoever needs it due to poverty and restrict it for those who commit crimes habitually and never work.