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I am aware of at least one case where an accused, who was unrepresented in the District Court and granted bail, assaulted their partner to a degree requiring surgery within two days of being released
I am aware of at least one case where an accused, who was unrepresented in the District Court and granted bail, assaulted their partner to a degree requiring surgery within two days of being releasedordered the immediate release of 11 people who had been remanded in custody.
The court found that they had been deprived of access to a solicitor. Without legal representation, their detention was illegal and could not stand. This ruling set a precedent that has resulted in people who would never normally get bail walking free. The risks arising from a precedent like this are obvious.
Preventable crimes are now much more likely to happen. And the longer the current dispute over the criminal legal aid scheme continues, these risks multiply. The 11 cases that were heard in the High Court were advanced under a provision in Article 40 of the Constitution, which allows people to challenge the legality of their detention. These individuals, who all faced various criminal charges, were unable to secure legal representation due to the current criminal legal aid impasse.
Many hundreds of solicitors, me included, stopped working under the scheme due to the unworkable changes that were made to it at the beginning of July. , a further 70 plus cases have since appeared before the High Court. We are now witnessing a steady stream of cases.
Trump scraps tariffs on Irish whiskey ‘on behalf of the United States of America’When a judge refuses bail and instead remands people in custody, it is usually because the alleged offence is particularly serious, there is concern about further offending or a risk to a victim or the wider public. While some accused are taking Article 40 cases in the High Court, others are being released in the lower courts as judges are aware of the precedent.
I am aware of at least one case where an accused, who was unrepresented in the District Court and granted bail, assaulted their partner to a degree requiring surgery within two days of being released. This issue arose because we believe the new criminal legal aid scheme is not financially or professionally sustainable. This is not something that only became apparent when it was introduced, it was long predicted by the profession.
Solicitors are not refusing to provide criminal legal aid because we do not believe in the principle. On the contrary, most criminal defence solicitors are passionate about access to justice. But our willingness to provide a public service does not mean we can absorb unsustainable losses indefinitely. In civil and family law, similar changes were made and a flat fee model introduced.
The number of solicitors willing to undertake legal aid work has fallen by 60 per cent over 10 years. Organisations working with victims of domestic violence have repeatedly raised concerns about this. The Legal Aid Board, the statutory body which oversees the scheme, has itself highlighted major challenges in recruiting and retaining professionals.
Many criminal defence solicitors looked at what happened in civil legal aid and concluded that the same mistakes were being repeated.show that 702 criminal legal aid certificates were issued nationally in July 2026, compared with 10,277 in July 2025, a 93 per cent reduction of certificates. A similar trend is evident for August. This is not because less crimes are being committed. It’s because cases aren’t being heard.suggested there was widespread abuse of the previous system.
Yet, when asked to produce the evidence, he offered a handful of cases out of an analysis of 350,000. That the claim was statistically indefensible was lost in the flurry of media coverage. Defence solicitors were blamed for a high number of adjournments. When asked to produce data showing who had requested the adjournments – the prosecution or defence – the Department of Justice was unable to produce any.
Next, it was claimed that action was needed because criminal legal aid cases typically take longer than criminal cases without legal aid. The Department of Justice has already acknowledged that legal aid cases involve more vulnerable and disadvantaged defendants which “inevitably leads to a higher number of adjournments”. Put simply, non-legal aid cases typically relate to minor matters such as road traffic offences or the failure to have a TV licence.
Then, we all heard about the case involving the Kerry football fan. His case was singled out by the Minister for Justice as an “unacceptable” example of District Court delays caused by the old criminal legal aid system.revealed it was not even a criminal legal aid case. The comment has not, to my knowledge, been withdrawn and remains uncorrected in various online publications. Criminal solicitors like me want to return to work.
Engagement on two issues is all that is required to ensure that we can do so. Firstly, under the new changes in the scheme, solicitors will only be paid for one case if their client happens to be up in court on three different charges on the one day.
A person could be accused of a burglary, an assault and a public order incident – all in different parts of the city or county – but if they are commenced on the same day, the solicitor will only be paid for one. If they are commenced on separate days, separate payments will be made for these distinct cases. How does this make sense?
The second issue relates to cases of extended duration, with the current scheme incentivising speedy resolutions over fair ones. This includes cases involving children, where the court exercises a more supervisory, rehabilitative type role. And it includes cases involving people with mental health or capacity issues, where fitness to plead issues can arise. These cases almost always require additional time, additional appearances and patient, repeated engagement with a solicitor – none of which is factored into the new scheme.
The Law Society has put forward recommendations designed to address these issues so that we can move forward and get back to doing the job we trained for – and proposed an independent mediator. The Minister for Justice is entrusted with ensuring that the State has a functioning criminal legal aid scheme. Right now we do not.
Just last week, O’Callaghan responded to data showing a 92 per cent fall in the number of criminal legal aid certs being issued by saying the system was functioning effectively. If he doesn’t see the evidence in front of him, perhaps the solution isn’t more data but an independent set of eyes. The appointment of a mediator, or a constructive engagement process, can’t come quickly enough. Yvonne Bambury is a criminal defence solicitor and partner in Fahy Bambury LLP.
This article was supplied by the Law SocietyRollout of the reformed Leaving Cert should be suspendedTrump’s focus turns to Doonbeg as thousands in Dublin and Clare protestPension coverage concerns and Lowry’s business interestsRollout of the reformed Leaving Cert should be suspended
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