S.I. No. 234/1976 - Criminal Justice (Legal Aid) (Amendment) Regulations, 1976.

S.I. No. 234 of 1976.

CRIMINAL JUSTICE (LEGAL AID) (AMENDMENT) REGULATIONS, 1976.

I, PATRICK COONEY, Minister for Justice, in exercise of the powers conferred on me by section 10 of the Criminal Justice (Legal Aid) Act, 1962 (No. 12 of 1962), and, in so far as these regulations are in relation to rates or scales of payment of fees, costs or expenses payable out of moneys provided by the Oireachtas pursuant to certificates for free legal aid, with the consent of the Minister for Finance, hereby make the following regulations:

1. (1) These Regulations may be cited as the Criminal Justice (Legal Aid) (Amendment) Regulations, 1976.

(2) The Regulations and these Regulations may be cited together as the Criminal Justice (Legal Aid) Regulations, 1965 to 1976.

2. In these Regulations—

"the Act" means the Criminal Justice (Legal Aid) Act, 1962 (No. 12 of 1962);

"the Principal Regulations" means the Criminal Justice (Legal Aid) Regulations, 1965 ( S.I. No. 12 of 1965 );

"the Regulations" means the Principal Regulations, the Criminal Justice (Legal Aid) (Amendment) Regulations, 1970 ( S.I. No. 240 of 1970 ), and the Criminal Justice (Legal Aid) (Amendment) Regulations, 1975 ( S.I. No. 100 of 1975 ).

3. (1) The fees (payable under the Act) for any particular case of senior counsel (subsequently referred to in this paragraph as "the defence counsel") assigned in relation to that case in pursuance of a certificate or certificates for free legal aid shall—

( a ) in case the same number of senior counsel appear for the prosecution in relation to that particular case and are present in court during the whole of the case and the prosecution relates only to the defendant or defendants to whom the defence counsel are assigned, be fees of the same amount as the fees of the senior counsel appearing for the prosecution, and

( b ) in any other case, be fees of the same amount as the fees that would, in the opinion of the Attorney General, formed after consultation with the Director of Public Prosecutions, have been payable to senior counsel appearing for the prosecution in that particular case if the same number of senior counsel appeared for the prosecution and were present in court during the whole of the case and the prosecution related only to the defendant or defendants to whom the defence counsel were assigned.

(2) The fees (payable under the Act) for any particular case of junior counsel (subsequently referred to in this paragraph as "the defence counsel") assigned in relation to that case in pursuance of a certificate or certificates for free legal aid shall—

( a ) in case the same number of junior counsel appear for the prosecution in relation to that particular case and are present in court during the whole of the case and the prosecution relates only to the defendant or defendants to whom the defence counsel are assigned, be fees of the same amount as the fees of the junior counsel appearing for the prosecution, and

( b ) in any other case, be fees of the same amount as the fees that would, in the opinion of the Attorney General, formed after consultation with the Director of Public Prosecutions, have been payable to junior counsel appearing for the prosecution in that particular case if the same number of junior counsel appeared for the prosecution and were present in court during the whole of the case and the prosecution related only to the defendant or defendants to whom the defence counsel were assigned.

(3) ( a ) Notwithstanding paragraphs (1) and (2) of this Regulation, where any counsel assigned in relation to a case in pursuance of a certificate for free legal aid is not present in court during the whole of the case, the question whether the fees of that counsel calculated under the said paragraphs (1) or (2), as the case may be, should be modified and the nature and extent of the modification (if any) shall be determined by the Attorney General, after consultation with the Director of Public Prosecutions, by the application of the criteria applied in determining the like matters in relation to the fees of counsel appearing for the prosecution in a case and any modification so determined shall be made accordingly.

( b ) Notwithstanding paragraphs (1) and (2) of this Regulation, where the fees of counsel appearing for the prosecution in a case include a fee that is specifically for attendance at a conference or consultation in relation to the case, the amount of such fee shall, unless the Attorney General, after consultation with the Director of Public Prosecutions, otherwise directs, be disregarded in the calculation of the fees (payable under the Act) of counsel assigned in relation to that case in pursuance of a certificate for free legal aid.

(4) ( a ) Where the same counsel are assigned—

(i) in pursuance of two or more certificates for free legal aid to two or more defendants and the cases to which they relate are heard together, or

(ii) in pursuance of two or more certificates for free legal aid to one defendant,

the counsel so assigned shall be deemed, for the purposes of these Regulations, to have been assigned to the said defendants or defendant, as the case may be, in relation to one case only:

Provided that, if the cases in relation to which the certificates are granted are treated, for the purposes of the determination of the fees of counsel appearing for the prosecution in the cases, as being any number of cases other than one, the counsel so assigned shall be deemed, for the purposes of these Regulations, to have been assigned to the said defendants or defendant, as the case may be, in relation to the same number of cases.

( b ) Regulation 7 (4) of the Principal Regulations shall not apply in a case where subparagraph (a) (ii) of this paragraph applies.

(5) References in this Regulation to fees of counsel appearing for the prosecution in a case do not include references to any fee paid to such counsel in respect of the preparation of statements of the evidence to be given on behalf of the prosecution in the case.

(6) Where two senior counsel are assigned to a person in relation to any particular case in pursuance of a certificate or certificates for free legal aid and two or more senior counsel do not appear for the prosecution in that case, one senior counsel only and one junior counsel only shall be deemed, for the purposes of these Regulations, to have been assigned to the person in relation to that particular case in pursuance of the certificate or certificates aforesaid.

4. Regulation 3 of these Regulations is in substitution for so much of the Regulations as prescribe rates or scales of payment of fees of counsel assigned in pursuance of certificates for free legal aid but nothing in this Regulation shall be construed as affecting the operation of paragraphs (2) and (3) of Regulation 7 of the Principal Regulations.

5. (1) The fees (payable under the Act) for any particular case of a solicitor assigned to a person in relation to that case in pursuance of a certificate for free legal aid the grant of which entitled the person to have counsel assigned to him in relation to that case shall, if the person is represented at the hearing of the case by the solicitor and not by counsel and counsel appear for the prosecution in that case, be fees of the same amount as the fees that would, in the opinion of the Attorney General, formed after consultation with the Director of Public Prosecutions, have been payable to counsel assigned to the person in relation to that case pursuant to the certificate aforesaid if the counsel so assigned were present in court during the whole of the case.

(2) Paragraph 1 of this Regulation is in substitution for so much of the Regulations as prescribe rates or scales of payment of fees of solicitors assigned in pursuance of certificates for free legal aid in relation to cases to which the said paragraph (1) applies.

(3) Travelling and subsistence expenses incurred by a solicitor in connection with a case to which paragraph (1) of this Regulation applies and in relation to which the solicitor is assigned pursuant to a certificate for free legal aid shall not be paid under the Act.

6. (1) Regulation 10 (inserted by the Criminal Justice (Legal Aid) (Amendment) Regulations, 1975 ( S.I. No. 100 of 1975 )), of the Principal Regulations is hereby amended by:

( a ) the insertion in paragraph (5) after "counsel" of "or a solicitor", and

( b ) by the deletion of paragraph (6).

(2) Regulation 11 (as amended by the said Criminal Justice (Legal Aid) (Amendment) Regulations, 1975) of the Principal Regulations is hereby amended by the deletion in paragraph (4) of "other than an application in relation to bail to the High Court or Supreme Court".

GIVEN under my Official Seal, this 5th day of October, 1976.

PATRICK COONEY,

Minister for Justice.

The Minister for Finance hereby consents to the making of the foregoing Regulations in so far as they are in relation to rates or scales of payment of fees, costs or expenses.

GIVEN under the Official Seal of the Minister for Finance, this 5th

day of October, 1976.

LIAM MAC COSGAIR,

Acting Minister for Finance.

EXPLANATORY NOTE.

These Regulations provide for parity between the fees payable to defence counsel under the Legal Aid Scheme and those payable to prosecution counsel; for the payment to solicitors, in certain circumstances, of fees determined on the same basis as counsel's fees and for certain other amendments to the Legal Aid Regulations.