The progress of a number of murder cases through the Central Criminal Court has been affected by the serious difficulties encountered by defence lawyers in securing psychiatric assessments for their clients.
Although psychiatric issues are explored in as many as 20 per cent of murder trials in Ireland, there is no legal obligation for HSE-employed psychiatrists to provide assessments for criminal cases.
While the Central Mental Hospital has a panel of experienced forensic psychiatrists employed by the HSE, they are under no contractual obligation to provide reports for either prosecution or defence teams. Currently, there is no definitive panel of psychiatrists available to defence lawyers to conduct assessments.
This work is undertaken by individual psychiatrists on a voluntary basis and the system has worked on an ad hoc, 'grace and favour' basis for decades.
It has emerged during case management hearings at the Central Criminal Court that there are fewer psychiatrists willing to make themselves available for defence work, resulting in a greater burden for those that do.
This has resulted in a backlog in preparing reports, which themselves necessitate a reply from psychiatrists retained by State prosecutors.
Legal sources say there has been a growing difficulty in securing psychiatric assessments since late last year due to a number of factors. These include the low level of fees paid to psychiatrists retained by the defence under the Criminal Legal Aid scheme compared to those paid to psychiatrists carrying out assessments for State prosecutors.
It has also been argued that the Criminal Legal Aid Unit of the Department of Justice has put an effective fee cap in place by seeking to limit the number of hours it will approve for psychiatrists to conduct assessments for the defence.
The court has heard that these conditions act as a disincentive to those taking on reports.
In January, senior counsel Brendan Grehan told Mr Justice Paul McDermott, the judge overseeing the trial list at the Central Criminal Court, that it was becoming "a major problem" to arrange defence psychiatric reports.
Mr Grehan explained how fees for "professional witnesses" under the Criminal Legal Aid scheme were cut to €120 per hour due to the 2008 recession and never restored. He said the number of psychiatrists now prepared to work for that rate is "far less than it was in previous times".
Counsel said the Director of Public Prosecutions can sanction a rate of €184 an hour, which is approximately 50 per cent more than the Department of Justice currently offers.
A new development, Mr Grehan said, occurred last summer when the Department of Justice insisted on being supplied in advance with an estimate on the number of hours required to prepare a report. This then had to be approved before a suitable expert psychiatrist could be engaged by the defence.
In his client's case, Mr Grehan said the psychiatrist had given an estimate of up to 25 hours to prepare the accused's report and indicated that he was prepared to work at the rate of €120 per hour. However, Mr Grehan said the Department of Justice would at first only sanction 15 hours before upping this to 20 hours at the same rate.
This represented a "fundamental unfairness to the accused," counsel told the court.
Mr Justice McDermott told Mr Grehan that the defence could bring an emergency judicial review application to challenge the position being adopted by the Department of Justice. Just a week later however, Mr Grehan returned to court to say that the Department had agreed to approve the 25 hours sought.
Counsel noted that what the department had put forward "as a matter of principle and policy" on fee limits for psychiatrists seemed subject to change in the face of threatened legal action. Mr Justice McDermott said it was of "considerable concern" that these matters were arising.
In a statement, the Department of Justice said it was aware of "just one murder trial" in which there was a possibility of delay due to a payment of fees issue. The Department said that "as soon as it was made aware of the issue", it sought further information in respect of the application and approval was given.
"No delay arose from this process," the Department said.
However, it is not the first time that similar issues have been raised at the Central Criminal Court this year.
In a case mentioned before the court in the last few weeks, a defence practitioner told Mr Justice McDermott that his solicitor had been unable to find a forensic consultant psychiatrist in Ireland to assess his client and they were now "ransacking London" in search of one.
In a separate case, a defence barrister told the court that her solicitor had to go through five different psychiatrists in order to get a report.
In another, one barrister informed the court that his solicitor had to get psychiatrists "from outside the fold", which would delay setting a trial date until the summer.
In January, Mr Grehan said a similar dispute had occurred in a different case, where the Department of Justice said they would only sanction 18 hours for a defence report where 25 hours was needed.
In a separate murder case before the court this week, Mr Grehan said the defence are seeking a second opinion on their client but have to seek assistance outside of Ireland as "none of the psychiatrists in the Central Mental Hospital indicated that they can provide" one.
In October last year, Michael Bowman SC told the court that a professor who had been retained to offer evidence in a murder trial was offered a fee that was substantially less than what he had been offered previously for similar work.
The Department of Justice has said a review of all fees paid through the Criminal Legal Aid scheme is currently underway. It says that the €120 rate for defence consultant forensic psychiatrists paid out by the scheme is sanctioned by the Department of Public Expenditure, NDP Delivery and Reform.
"There is no ‘cap’ for the number of hours [sanctioned] for consultant forensic psychiatrists but where the hours quoted are above the norm, those submitting the request for payment are asked to account for the hours charged and to detail the exceptional nature of the report," the Department said.
