S.I. No. 129/1989 - Criminal Justice (Legal Aid) (Amendment) Regulations, 1989.

S.I. No. 129 of 1989.

CRIMINAL JUSTICE (LEGAL AID) (AMENDMENT) REGULATIONS, 1989.

I, GERARD COLLINS, 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 shall be deemed to have come into operation on the 25th day of May, 1989, and may be cited as the Criminal Justice (Legal Aid) (Amendment) Regulations, 1989.

(2) The Criminal Justice (Legal Aid) Regulations 1965 to 1988 and these Regulations may be cited together as the Criminal Justice (Legal Aid) Regulations, 1965 to 1989.

2. Regulation 10(5) (as inserted by the Criminal Justice (Legal Aid) (Amendment) Regulations, 1975 ( S.I. No. 100 of 1975 ) of the Criminal Justice (Legal Aid) Regulations, 1965 ( S.I. No. 12 of 1965 ), is hereby amended by the substitution therefor of the following:

"(5) No fee shall be paid under the Act to a solicitor or counsel assigned in relation to any particular case in pursuance of a certificate for free legal aid in respect of any day on which the hearing of the case consists only of an application in relation to bail, other than a day when the hearing consists only of an application to fix bail, to the Circuit Court or Special Criminal Court, which is contested by the prosecution, in respect of which a fee of £46 shall be paid to a solicitor and counsel appearing in connection with such an application.".

3. The Criminal Justice (Legal Aid) (Amendment) Regulations, 1976 ( S.I. No. 234 of 1976 ), are hereby amended by—

( a ) the substitution for Regulation 3 (1) (b) of the following—

"(b) in any other case, including a case where senior counsel appearing for the prosecution is not present in court during the whole of the case, be fees of the same amount as the fees that would 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, such fees to be determined in accordance with such general directions as may be issued from time to time by the Attorney General or, in a case to which such general directions do not apply, to be such fees as in the opinion of the Attorney General, formed after any consultation with the Director of Public Prosecutions which he may consider necessary, are payable in accordance with the provisions of this paragraph.",

( b ) the substitution for Regulation 3 (2) (b) of the following—

"(b) in any other case, including a case where junior counsel appearing for the prosecution is not present in court during the whole of the case, be fees of the same amount as the fees that would 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, such fees to be determined in accordance with such general directions as may be issued from time to time by the Attorney General or, in a case to which such general directions do not apply, to be such fees as in the opinion of the Attorney General, formed after any consultation with the Director of Public Prosecutions which he may consider necessary, are payable in accordance with the provisions of this paragraph.",

( c ) the substitution for Regulation 3 (3) of the following—

"(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 in accordance with such general directions as may be issued from time to time by the Attorney General or, in a case to which such general directions do not apply the question as to whether the said fees should be modified and the nature and extent of the modification (if any) shall be determined by the Attorney General after any consultation with the Director of Public Prosecutions which he may consider necessary.

( 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 not be payable to counsel assigned in relation to that case in pursuance of a certificate for free legal aid unless he attended at a conference or consultation in relation to the case, on a date other than a date of trial, and a fee for such attendance has been claimed, and satisfactory evidence of such attendance has been provided.

( c ) Notwithstanding paragraphs (1) and (2) of this Regulation, where the fees of counsel appearing for the prosecution in a case were not the fees normally payable in such a case for reasons which, in the Attorney General's view, formed after any necessary consultation with the Director of Public Prosecutions, are not relevant to the determination of the fees of defence counsel, the fees (payable under the Act) of counsel assigned in relation to that case in pursuance of a certificate for free legal aid shall be the fees normally payable to prosecution counsel in such a case, as ascertained by the Attorney General following any necessary consultation with the Director of Public Prosecutions.".

4. The Criminal Justice (Legal Aid) (Amendment) Regulations, 1978 ( S.I. No. 33 of 1978 ), are hereby amended by—

(a) the substitution for Regulation 3 (1) (f) (ii) of the following—

"(ii) the same solicitors are not assigned in relation to all the cases in pursuance of certificates for free legal aid to all the defendants aforesaid,

the fees of counsel in the cases shall be deemed, for the purposes of these Regulations, to be, in relation to each such solicitor, such amount, as would have been payable to the counsel if the prosecution had related only to the defendant or defendants represented by that solicitor and the counsel had been present in court during the hearing to the same extent as that solicitor and the said fees shall be determined in accordance with such general directions as may be issued from the time to time by the Attorney General, or in a case to which such general directions do not apply, shall be such fees as in the opinion of the Attorney General, formed after consultation with the Director of Public Prosecutions, are appropriate.",

(b) the substitution for Regulation 3 (1) (h) of the following—

"(h) Where, in a case referred to in subparagraph (g) of this paragraph, there is more than one defendant and the same counsel are not assigned in pursuance of the certificates referred to therein to all defendants, the fees of counsel who are so assigned shall be deemed, for the purposes of these Regulations, to be the fees that would have been payable if the same counsel had been so assigned to all the defendants in respect of whom the certificates were granted and such fees shall be determined in accordance with such general directions as may be issued from time to time by the Attorney General, or in a case to which such general directions do not apply, shall be such fees as in the opinion of the Attorney General, formed after consultation with the Director of Public Prosecutions, are appropriate:

Provided that, if any of the cases to which this subparagraph applies is one in relation to which two counsel are assigned in pursuance of a certificate or certificates for free legal aid and relates to a charge of murder, the case in relation to which the solicitor is deemed to have been assigned as aforesaid shall be deemed to be such a case.",

( c ) the insertion after Regulation 3 (1) (i) of the following—

"(j) Notwithstanding subparagraphs (a) to (i) of this paragraph, 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 not be payable to a solicitor assigned in relation to that case in pursuance of a certificate for free legal aid unless he attended for the full duration of a conference or consultation in relation to the case, on a date other than a date of trial, and a fee for such attendance has been claimed, and satisfactory evidence of such attendance has been provided.".

5. Where, in connection with a case or cases in relation to which counsel has been assigned pursuant to a certificate or certificates for free legal aid, it is essential for counsel to visit a prison or other custodial centre ( other than a Garda Station), a fee of £52.74 shall be paid under the Act in respect of each such visit.

6. The Minister for Justice may refer the question of assessment of the appropriate fees payable to a solicitor or counsel in pursuance of a legal aid certificate, to the Attorney General for determination, in any case (other than a case in the District Court or an appeal to the Circuit Court) where a dispute has arisen as to the appropriate fee that is payable. The Attorney General shall determine the appropriate fee payable in a case referred to him by the Minister for Justice under this Regulation, after any necessary consultation with the Director of Public Prosecutions.

GIVEN under my Official Seal, this 30th day of May, 1989.

GERARD COLLINS,

Minister for Justice.

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

GIVEN under my Official Seal, this 30th day of May, 1989.

ALBERT REYNOLDS,

Minister for Finance.

EXPLANATORY NOTE.

These Regulations, which take effect from 25 May 1989, provide for the payment of fees under the Criminal Legal Aid Scheme, to counsel for visits to prisons and other custodial centers, and to solicitors and counsel for certain applications to fix bail, and for certain conferences or consultations. They also amend, in certain respects, the Regulations providing for parity between the fees payable to defence counsel under the Scheme, and those payable to prosecution counsel, and the Regulations governing payment of fees to solicitors for cases in the higher courts.