Legal aid for applications for the disclosure of counselling records
Section 28(5C) of the Civil Legal Aid Act 1995 provides that
“Notwithstanding any other provision of this Act, the Board shall grant a legal aid certificate to a complainant or witness for the purpose of his or her being represented in relation to an application referred to in subsection (3) of section 19A of the Criminal Evidence Act 1992 , that concerns him or her.”
There are a number of points to note about this procedure:
No means or merits criteria apply, but an application must be made
The legal aid service is not limited to the complainant (i.e. the alleged victim). Any witness that the counselling record concerns is entitled to avail of the service.
The range of sexual offences where these applications may arise is much wider than the limited range of serious offences in which the Board provides its existing services to complainants and that many of the offences on the list may be tried in the Circuit Criminal Court. It may therefore be the case that any law centre may be asked to provide services and it will not be possible to limit the service to Dublin or any other group of law centres.
The prosecutor (the Director of Public Prosecutions, or the state solicitor on behalf of the DPP outside of Dublin) will contact a local law centre for the purposes of referring the complainant/witness to whom the counselling record concerns to that law centre. The law centre must take on the case and treat it as a priority unless conflict arises in which case they must arrange for a neighbouring law centre to provide representation. In this regard it may be the case that both the complainant and one or more other witnesses may require representation. If a difficulty arises contact the Director of Civil Legal Aid/Regional Manager.
Where the application is made on notice prior to the commencement of the trial, the law centre should give the applicant a priority appointment prior to the commencement of services for the purposes of taking instructions and making an application for a legal aid certificate (which will be automatically granted). Thereafter a Junior Counsel who is a member of the barristers’ panel and who has an expertise in criminal law should be briefed to provide representation. There is no need for the instructing solicitor to attend court and counsel may be attended in court by a paralegal from the law centre instead. Where the application is made post commencement of the trial the law centre should proceed to brief Counsel without delay.
Where this service is provided to a witness other than the complainant, then the law centre will not be able to later provide representation to the complainant in relation to an application to cross-examine in relation to their past sexual history, should this arise, and the complainant should be referred to a neighbouring law centre.