A public defender system, similar to that which operates in the US and certain other countries, would cost more, be less flexible and offer less choice than the existing legal aid scheme in criminal cases, according to a report.
The report, by the Criminal Legal Aid Review Committee, was prepared for the Minister for Justice, Equality and Law Reform. The committee was set up in 1996 to consider the legal aid scheme, the fees paid in it and the practice whereby people qualify for aid.
The committee was specifically asked to consider the introduction of a public defender system, where salaried solicitors and/or barristers employed on a full-time basis by the State represent people who come before the courts in criminal proceedings.
The existing scheme means that private practitioners, solicitors and barristers, provide this service for a set fee, paid by the State. The review of the scheme arose in a context where the cost of providing the criminal legal aid scheme doubled between 1992 and 1995. In 1998 it cost the Exchequer £12.54 million.
Among the submissions received by the committee were two from the Law Society and Bar Council respectively, which argued that a public defender system would not be perceived to be independent.
The Law Society submission said: "Persons charged with serious offences have been arrested, questioned and eventually charged by one group of State officials, remanded by a second group, prosecuted by a third group, may be interviewed and reported on by a fourth group and eventually incarcerated by a fifth group. Defence lawyers are the only group in the whole criminal legal system who are independent of the State."
The Bar Council said: "Public confidence in the independence of the system is likely to be seriously undermined."
In its report the committee said this could be avoided if proper protections and structures were put in place. However, it added that the element of choice which exists under the existing scheme is one of its greatest strengths, and creates conditions for independence, client confidence and trust.
It added that administratively it was streamlined and cost-effective. A public defender system would entail a number of indirect costs such as a staff pension scheme, office accommodation and secretarial support.
Turning to the question of cost, the committee quoted a report from the Department of Finance in 1994 which found that the use of full-time salaried solicitors, barristers and support staff to provide criminal legal aid would be 70 per cent more expensive than the current scheme. The report commented that not all areas were covered in this report.
The cost of providing a full public defender service, which would entail employing 21 senior counsel, 58 junior counsel and 42 support staff for them, along with between 141 and 202 solicitors and 163 support staff for them, would be between £22.8 million and £27.2 million, excluding PRSI.
The report concluded that the current scheme is less expensive than any of the alternative models considered. It therefore recommended that it continue.