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Cite as:  IESC 71,  1 ILRM 157,  1 IR 635
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Judgment Title: Carmody -v- Minister for Justice Equality and Law Reform & ors
Neutral Citation:  IESC 71
Supreme Court Record Number: 82/2005
High Court Record Number: 2000 14671 p
Date of Delivery: 23 October 2009
Court: Supreme Court
Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.
Judgment by: Judgment of the Court
Status of Judgment: Approved
Outcome: Allow Appeal
THE SUPREME COURT
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
In these proceedings the appellant claims to have been denied a constitutional right to legal aid in criminal prosecutions before the District Court because there is no statutory or other means by which he can seek to have free legal representation which includes counsel as well as solicitor even though the circumstances pertaining to the prosecution brought against him are such that representation by solicitor and counsel may be essential in the interests of justice.
Two remedies have been sought by the plaintiff and appellant (hereafter the appellant) namely (a) a declaration that s. 2(1) of the Criminal Justice (Legal Aid) Act 1962 is invalid as being repugnant to the Constitution and (b) a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2(1) of the Criminal Justice (Legal Aid) Act 1962 is incompatible with the obligations of the State under the provisions of the Convention.
(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and
(b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it, the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.
(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable.
It confers jurisdiction on the District Court to grant a person of insufficient means legal aid “in the preparation and conduct of his defence”.
That legal aid can only be granted if it appears to the District Court “that by reason of the gravity of the charge or of exceptional circumstances, it is essential in the interests of justice” that the legal aid should be granted.
With one exception, the legal aid granted is confined to legal representation by a solicitor only for the preparation and conduct of the defendant’s defence.
The only exception specified in the section is that where the accused is charged with murder, and the Court thinks fit, counsel may be assigned in addition to a solicitor.
The exception is effectively redundant as a result of the abolition of the then existing preliminary examination procedure in the District Court for persons charged with all indictable offences, as a consequence of the Criminal Justice Act 1999.
Otherwise, whatever “the gravity of the charge”, whatever “exceptional circumstances” may exist and whatever “the interests of justice” might require the District Court has no power or discretion to consider whether legal aid should be granted for the purpose of assigning counsel to prepare or conduct a defendant’s defence. The reference to counsel in this judgment is a reference to a practising barrister.
When he appeared before the District Court on foot of the summonses served on him the appellant was allowed legal aid and he engaged as his solicitor Mr. Mannix.
Thus it has been decided by the District Court that the appellant does not have the means to pay for legal representation and that it is essential in the interests of justice that he be granted criminal legal aid for that purpose, namely a solicitor. These rulings by the District Court are not put in issue by the State.
Mr. Mannix is a solicitor of 26 years experience particularly in the field of criminal law having been on the legal aid panel for the representation of persons in the District Court and other courts for some 25 years. He practised on his own until 1999 when he engaged an assistant solicitor and since June 2002 he has been in partnership with two other solicitors. His practice is based in Tralee.
Particulars concerning the offences for which the appellant was summoned were summarised in the submissions filed on behalf of the appellant in the following terms:
"Section 48(1)(a), (d) and (e) of the Diseases of Animals Acts 1966 as amended by the Bovine Diseases (Levies) Act 1979 and the Bovine Diseases (Levies) (Amendment) Act 1996 as introduced by the Minister pursuant to the powers conferred upon him by Sections 3, 12, 13, 19, 20, 27 and 48 of the said Act of 1966 and introduced by Article 7.3(a) and 7.3(b) of the Brucellosis in Cattle (General Provisions) Order, 1991 (S.1. No. 114 of 1991) as amended by the Brucellosis (sic.) in Cattle (General 114 of 1991) as amended by the Brucellosis (sic.) in Cattle (General Provisions) (Amendment) Order 1996 (S.1. No. 86 of 1996) as amended by the Brucellosis in Cattle (General Provisions) (Amendment) Order, 1998 (S.1. No. 39 of 1998)."
(2) "[The Plaintiff] being a person who was notified in accordance with paragraph (1) of Article 7 of the Brucellosis in Cattle (General Provisions) Order 1991, S.1. No. 114 of 1991, on the 15th September, 1998 that [his] holding at Gortalea, Tralee in the County of Kerry and elsewhere was declared restricted under Article 7 of the above-mentioned Order, that [he] failed to deliver forthwith to a veterinary inspector or to an authorised officer every identity card issued in respect of any eligible animal or female animal aged less than twelve months on the holding, such identity cards not already having been issued pursuant to Article 5(3)(b) of the above-mentioned Order, contrary to Section 7(2) of the Brucellosis in Cattle (General Provisions) Order 1991 (S.1. No. 114 of 1991) as amended by the Brucellosis in Cattle (General Provisions) (Amendment) Order 1998 (S.1. No. 39 of 1998)"
(3) "[The Plaintiff] did on a date unknown between the 15th day of April, 1998 and the 18th day of May, 1998 at Gortlea, Tralee in the County of Kerry in the Court Area and District aforesaid move an eligible animal into your holding without the said animal having passed a blood test within a period of thirty days prior to the day on which the animal was so moved Contrary to Section 18 of the Brucellosis in Cattle (General Provisions) Order of 1991 as amended by Section 2 of the Brucellosis in Cattle (General Provisions) (Amendment) Order 1998."
The Plaintiff himself is a farmer who resides in Co. Kerry and the prosecutions against him were brought by the Minister for Agriculture, Food and Rural Development. When he appeared before the District Court on 9th October 2000 the Court granted a legal aid certificate in accordance with s. 2 of the Act of1962.
Mr. Mannix had given prior notice to the State Solicitor that he would be seeking legal aid on behalf of the plaintiff, to include the assignment of junior counsel, and that if the plaintiff did not receive the assistance of representation by counsel, these proceedings would be commenced.
The Evidence before the High Court and its Findings of Fact
“The evidence is that the Minister has a panel of barristers from which counsel is assigned to prosecute offences of the type with which the plaintiff is charged. There are ten barristers on the panel, both senior and junior counsel. The policy is to assign junior counsel to prosecute in the District Court and senior counsel to prosecute in the Circuit Court. The barristers on the panel are experienced prosecutors. Prosecuting counsel is instructed by the State Solicitor for the locality in which the offences are being prosecuted. A survey carried out by the Minister’s department indicates that between September, 2000 and March, 2004 123 prosecutions were initiated for this type of offence. Counsel was retained on the prosecution team in most of the cases. In 18 of the cases, which were interlinked and had not been concluded, the defendant was represented by counsel. Of the remaining 105 prosecutions, the defendant was represented by counsel in 26 cases. Counsel has already been briefed for the prosecution of the plaintiff in the District Court.
The plaintiff’s solicitor, Mr. Mannix, practises in Tralee. He is an experienced solicitor who has been on the criminal legal aid panel for over twenty years. His normal practice is to represent his clients in the District Court himself. Only in exceptional cases does he brief counsel for the District Court. He considers that the prosecutions pending against the plaintiff are unusual and exceptional in comparison to the generality of prosecutions in the District Court. They could have serious consequences for the plaintiff. They are complex and, in Mr. Mannix’ view, more difficult to defend than a trial on indictment. In his opinion the plaintiff would not receive a proper level of representation on the charges if he was not represented by counsel on legal aid. When asked, in cross-examination, whether he had considered that a change of solicitor would be appropriate, Mr. Mannix testified that he had not. Moreover, he stated that, if the State Solicitor was prosecuting himself without the aid of counsel, he would still advise that the plaintiff be represented by counsel, on the basis that the State Solicitor is a very experienced prosecutor.
Mr. Robert Pierse, who has over 40 years experience as a practising solicitor in County Kerry, gave evidence on behalf of the plaintiff. In his view, solicitors should themselves represent their clients in the District Court and counsel should only be used in very exceptional cases. This, in fact, is what happens. However, in relation to the charges which are pending against the plaintiff, Mr. Pierse pointed out that, while technically they are all minor offences, because of the volume of offences alleged, the matter has serious consequences. The summonses raise a considerable number of points on which a reasonable solicitor would need counsel’s advice. He himself had instructed counsel to represent a client who faced similar charges. His opinion was that the plaintiff should be represented by counsel because of the risk of imprisonment and the possible detriment to his reputation. He also expressed the view that it is important that the client’s and the public’s perception of representation on both sides on such charges should be of parity. He expressed the view that counsel is more expert than a solicitor in criminal law matters. The court was invited to infer from the fact that experienced prosecuting counsel are briefed in most of the cases of the type at issue here establishes the complicated nature of the cases. No other reason was advanced by the defendants for the use of a solicitor and barrister on the prosecution team in these cases, although counsel for the defendants did suggest that the presentation of the prosecution may be more difficult than defending such charges. Counsel for the defendants dismissed as being misplaced the analogy drawn by counsel for the plaintiff of a specialist in the case of prosecuting counsel and a general practitioner in the case of a solicitor. I think it is reasonable to infer from the evidence that prosecutions involving charges of the type with which the plaintiff is charged are more complex than the generality of prosecutions with which the District Court deals. I so find. A lawyer, whether a barrister or a solicitor, who is involved in the prosecution or defence of such charges is going to have the time consuming task of familiarising himself or herself with a body of regulation the source of which is both domestic law and European law, which has been the subject of considerable amendment and revision over the years. It is a body of law to which the lawyer may rarely have to have recourse. … Further, I consider that the court is entitled to assume that a solicitor on the legal aid panel will represent his client according to the standard of conduct expected of his profession. In any event, aside from those assumptions, in my view, a finding that a qualified solicitor exercising ordinary professional skill and care could not effectively and adequately defend an accused person on such charges in the District Court is not open on the evidence.”
Two points highlighted in the evidence of the appellant’s solicitor, Mr. Mannix are illustrated in the two following extracts from the transcript of his evidence:
(b) “It was not one that I thought I could properly and adequately deal with on his own behalf on my own. I was aware of the fact that counsel was retained by the Minister … and because of the complexity of the case and the complexity of the law in the case it was wholly appropriate that Mr. Carmody be assigned counsel to enable him to properly meet the case against him and defend himself.”
The High Court dismissed the appellant’s claim that s. 2 of the Act of 1962 is unconstitutional. It also refused his application for a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2 is incompatible with the State’s obligations under the Convention. The appellant has appealed against these findings.
In deciding on the appellant’s claim the High Court determined that the issue raised by the appellant’s claim for a declaration of incompatibility pursuant to s. 5 of the Act of 2003 should be determined first and before the determination of the constitutional issue raised particularly as regards the claim that s. 2 of the Act of 1962 is unconstitutional. One of the questions which arises for this Court to decide in this appeal is whether in principle, a claim that an Act of the Oireachtas is repugnant to the Constitution should be determined prior to the consideration of any claim for a declaration that the Act is incompatible with the provisions of the European Convention on Human Rights as provided for by s. 5 of the Act of 2003.
The claim that the appellant is denied his constitutional right to legal aid by virtue of s. 2 of the Act of 1962 has been advanced on two grounds.
Firstly the appellant contends that a defendant on a criminal charge before the District Court, who does not have the means to pay for his own legal representation, has a right under the Constitution to apply for legal aid so that he may be legally represented by both a solicitor and counsel where such representation is essential in the interests of justice. This, it is contended, is a constitutional requirement in order that the trial of a defendant before the District Court is conducted in accordance with the due process of law. Section 2(1) of the Act of 1962 he claims is repugnant to the Constitution because it prevents the District Court considering whether, in the particular circumstances of a given case, it is in the essential interests of justice that a defendant be represented not only by a solicitor but also by a barrister or counsel.
The appellant emphasised the complex nature and sources of the law underlying the charges which had been brought against him and the seriousness of the consequences which would flow from a conviction. The appellant also relied on the fact that the Department of Agriculture, Food and Rural Development, for the purpose of prosecuting offences of this nature, engaged and relied upon a specialist panel of barristers, including senior counsel, in addition to a solicitor, the State Solicitor, for the purpose of prosecuting such offences. This was evidence of the especially complex nature of the legal issues to which such prosecutions give rise. Although the appellant did not seek parity of representation as such the circumstances demonstrated that in order to ensure that the appellant could be fairly represented and thus receive a fair trial he was entitled to representation by counsel in addition to that of solicitor. It was also submitted that the exclusion of a right to counsel in all and every criminal prosecution being dealt with by the District Court was inflexible, irrational and arbitrary and constituted a denial of constitutional right to a fair trial. The test that should be adopted is whether in any particular case there was a real risk of an unfair trial if a defendant was denied the opportunity of being represented by counsel in addition to a solicitor. Where a prosecution before the District Court was of sufficient complexity and seriousness a defendant who could not afford to pay for legal representation should be granted legal aid for the purpose of being represented by counsel as well as solicitor in order to ensure that he or she had a fair trial in accordance with the Constitution. In this respect the appellant relied principally on the decision of this Court in The State (Healy) v. O’ Donoghue  I.R. 325.
In the foregoing circumstances it was submitted that s. 2(1), in arbitrarily failing to provide for the grant of legal aid to include counsel in any appropriate cases, s. 2(1) of the Act of 1962 should be declared repugnant to the Constitution.
In the second ground or aspect of his claim the appellant claims that the particular facts and circumstances of his case, that is to say, the alleged seriousness of the offences and the exceptional complexity of the law under which the offences are prosecuted, are such that he is entitled to an order declaring that in the interests of justice, he is entitled to legal aid providing for his representation by counsel and solicitor in this case. Accordingly, since by virtue of the application of s. 2(1) by the District Court he was denied legal representation, to include counsel, in this case he has been denied his constitutional rights.
For essentially the same underlying reasons the appellant has also claimed a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2(1) of the Act of 1962 is incompatible with the obligations of the State under the provisions of the Convention.
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
Since the Court has not considered it necessary to consider the claim for a declaration of incompatibility with the European Convention on Human Rights sought by the appellant pursuant to s. 5 of the Act of 2003 it is not necessary to refer further to the submissions on that question.
The Human Rights Commission, were granted leave by the Court pursuant to s. 8(h) of the Human Rights Commission Act 2000 to intervene as an amicus curiae. Its submissions may be summarised as follows:
As regards the order for determination of on the one hand, the constitutional issue, and on the other, the application for a declaration of incompatability pursuant to s. 5 of the Act of 2003 it was submitted that the constitutional issue should be determined first. It was submitted that a declaration of incompatibility pursuant to s. 5 of the Act of 2003 could not determine and dispose of the dispute between the parties. Accordingly, having regard to the terms of s. 5 of that Act, the constitutional issue should be determined first.
As regards the substantive constitutional issue it was submitted that the test to be applied is whether there was a “real risk” of the defendant receiving an unfair trial if he was denied representation by counsel as well as solicitor. Applying that test the appellant, in the circumstances of the case, was entitled to be provided with legal aid for that purpose. It was also submitted that the overall “interests of justice”, which included considerations broader than those included by the High Court, require that such legal aid be provided where the interests of justice so require and the Commission relied on The State (Healy) v. O’Donoghue  I.R. 325 in support of this proposition. It also submitted that the notion of ‘equality of arms’ meaning ‘reasonable equality’ as previously applied by this Court and as referred to in the jurisprudence of the European Court of Human Rights would require that the defendant be provided with legal aid to include counsel as well as solicitor in this case. It was also submitted that standards of fairness in criminal proceedings must, as Kenny J. indicated in The State (Healy) v. O’Donoghue be kept under review so that a defendant can be afforded his or her constitutional rights according to contemporary circumstances.
On the constitutional issue the respondents submitted that the learned High Court Judge was correct in her findings of fact and in particular in her determination of the law and the constitutional rights of the appellant. In particular it was submitted that the constitutional rights of the appellant are fully vindicated by his entitlement to nominate a solicitor of his choice from the legal aid panel in the District Court. The right to ‘equality of arms’ was met once a defendant was provided with legal aid for legal representation which was sufficient to ensure a fair trial. Representation by a solicitor in prosecutions before the District Court met that requirement.
Order in which the Issues should be Addressed
The question arose before the learned trial Judge as to whether, in addressing the issues raised in the proceedings she should first of all decide the issue concerning the declaration sought pursuant to s. 5 of the Act of 2003 having regard to the principle reflected in the statement of Henchy J., in The State (Woods) v. The Attorney General “…that a court should not enter upon the question of constitutionality unless it is necessary for the determination of the case before it.”
The principle has been reiterated in a number of cases including by Finlay C.J. in Murphy v. Roche  I.R. 106 at 110 where he stated:
It would have been more desirable if the parties did debate in the High Court whether the obtaining of such a declaration would resolve the issue between them. This would have more readily enabled the learned trial Judge to examine this question in the context of the case as a whole which could have led to a different order of priority being accorded to the issue of constitutionality on the one hand and that arising from the claim for a declaration of incompatibility on the other.
In any event, the order in which issues in proceedings should be determined, where one of them involves the constitutionality of an Act, is ultimately and finally a matter for the Court rather than the parties while taking into account any views or submissions tendered on their behalf.
As the case-law referred to in this context makes clear, and indeed as the learned trial Judge pointed out, the question involving any validity of a statute or a section thereof should be postponed until consideration has been given to any other question of law the resolution of which could determine the issues between the parties. If a decision on such questions of law does determine such issues then, in principle, it is not necessary for the Court to address the constitutional question.
The essence of the issue raised by the appellant in these proceedings is that the State respondents, by virtue of the terms of s. 2 of the Act of 1962, wrongfully denied him the possibility of applying to the District Court for the grant of legal aid to include counsel and, or alternatively, the refusal to actually grant such legal aid in the circumstances of his particular case to the appellant.
In these circumstances the Court is satisfied that a declaration of incompatibility pursuant to s.5 of the Act of 2003 cannot be said to be a remedy which would resolve the issue between the parties. Any such declaration in this case would leave the appellant in the same position with regard to his claimed constitutional right to legal representation in the prosecution pending against him in the District Court as he was prior to the commencement of proceedings.
That in itself is sufficient ground, in the Court’s view, for considering that an issue as to the constitutionality of a statute should first of all be addressed by the Court when the only other issue is a claim for a declaration pursuant to s. 5 of the Act of 2003.
In addition, it must be noted, that s. 5(1) in conferring on the High Court, or this Court on appeal, jurisdiction to make a declaration concerning a statutory provision or rule of law only arises “where no other legal remedy is adequate and available”.
Where a citizen’s constitutional rights are violated, statute law or some other rule of law may provide a remedy which vindicates such rights. Where a statute or a rule of law does not provide a remedy for the violation of such a right the citizen is entitled to rely on the provisions of the Constitution for a remedy in vindication of the right. That is what the appellant has done in this case in relying on the provisions of the Constitution, and the principles which flow from it, as affording him a remedy for the alleged breach of his rights. It hardly needs to be said that the provisions of the Act of 2003 cannot compromise in any way the interpretation or application of the Constitution, a principle which is acknowledged in the long title to the Act which states that the effect of the Act is “subject to the Constitution”.
Accordingly the Court is satisfied that when a party makes a claim that an Act or any of its provisions is invalid for being repugnant to the Constitution and at the same time makes an application for a declaration of incompatibility of such Act or some of its provisions with the State’s obligations under the Convention, the issue of constitutionality must first be decided.
If a Court concludes that the statutory provisions in issue are incompatible with the Constitution and such a finding will resolve the issues between the parties as regards all the statutory provisions impugned, then that is the remedy which the Constitution envisages the party should have. Any such declaration means that the provisions in question are invalid and do not have the force of law. The question of a declaration pursuant to s. 5 concerning such provisions cannot then arise. If, in such a case, a Court decides that the statutory provisions impugned are not inconsistent with the Constitution then it is open to the Court to consider the application for a declaration pursuant to s. 5 if the provisions of the section including the absence of any other legal remedy, are otherwise met.
Decision on the Constitutional Issue
It is submitted that s. 2 could only withstand challenge if it could be assumed that the interests of justice never requires representation by counsel in criminal cases before the District Court.
It may seem extraordinary now but prior to the adoption of the Criminal Justice (Legal Aid) Act 1962 no legal aid was available for poor persons except when they were charged with the crime of murder (then a capital offence) or in certain circumstances where a retrial was ordered by the Court of Criminal Appeal or the Supreme Court. That situation had for a long time been considered by many to be inconsistent with the notion of a fair trial although no issue concerning it had been raised before the Courts. When Ireland ratified the European Convention on Human Rights in February 1953 the State must have foreseen that the absence of legal aid for poor persons in nearly all cases might place it in breach of Article 6 of the Convention on the right to a fair trial because, as regards that Article, it inserted in its instrument of ratification a reservation pursuant to Article 15 of the Convention that Ireland did not “interpret Article 6.3.c of the Convention as requiring the provision of free legal assistance to any wider extent than is now provided in Ireland.” Article 6.3.c of the Convention provides that
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
In any event in 1962 the State took, in introducing the Act, what was then generally regarded as its first tentative but meaningful step in the provision of legal aid for poor persons. That is to say persons who did not have the means to pay for their own legal representation would be granted legal aid where the essential interests of justice so required.
Up to that time no case had been brought before our courts seeking to assert a constitutional right to legal aid in criminal cases and for once an initiative in the field of justice involving public expenditure for the protection of the rights of citizens, in this instance those who had little or no means, was taken without being forced upon the State by a decision of our courts but was no doubt taken in cognisance of the fact that a right to legal aid in criminal cases was becoming generally recognised as a basic right not only in an international instruments such as the European Convention but also in the laws of many countries, with particularly strong developments in the constitutional case-law on due process in the United States.
Although the Act of 1962 has been the subject of some minor amendments in the meantime it has remained in substance the same and particularly so as regards the provision for criminal legal aid in the District Court.
Thus the framework for criminal legal aid in the District Court, fashioned in the mindset and circumstances of now nearly half a century ago as a first and valuable step in this area, remains applicable today notwithstanding the substantially changed legal environment in which the District Court functions in the area of criminal justice. Those changes will be referred to later but the Court will first refer to some constitutional principles concerning the provision of legal aid in criminal cases that have been expressed in the case-law of this court.
Criminal Legal Aid and the Constitution
In the Healy case the Court was asked to grant orders of certiorari quashing certain convictions and sentences which had been pronounced against the applicant John Healy and his co-accused, Anthony Foran. For present purposes it is sufficient to state that in one case the applicant, John Healy, had not applied for legal aid and was convicted and sentenced without legal representation. As regards other charges, both applicants had been granted a legal aid certificate and, both having pleaded guilty, their sentencing was adjourned. Their cases were listed on several occasions for sentencing but no solicitor appeared for them and eventually the District Judge decided to proceed with sentencing in the absence of legal representation. The relevant conviction and sentences were quashed by the Courts on the grounds that the two accused had not been dealt with in accordance with the due process of law as the Constitution requires. One outcome of that case is that a defendant has a constitutional right to be informed of his or her entitlement to legal aid even though the Act of 1962 did not specify that he or she be so informed.
Since that case did not involve an issue as to the constitutionality of any provision of the Act of 1962 but concerned certiorari proceedings the order made is not strictly relevant to the issues in this case but the principles expressed in the judgments of the Court are directly relevant to any consideration of the constitutional right of poor persons to legal aid in criminal cases.
One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely a means of vindicating that right.
As O’Higgins C.J., stated at page 350 of the report in Healy:
This opportunity must be provided by the State. Only in this way can justice be done, and only by recognising and discharging this duty can the State be said to vindicate the personal rights of the person charged. To hold otherwise would be to tolerate a situation which the nature and extent of a man’s ability to defend himself, when accused, would depend on the nature and extent of his means. That would be to tolerate injustice.”
Again at page 357 Griffin J., stated:
The right is a constitutional right. Everyone has a right to be represented in a criminal trial but justice requires something more than the mere right to be represented when a person, who cannot afford legal representation, is facing a serious criminal charge. Such a person has a constitutional right to be granted legal aid by the State to enable him or her to have legal representation at the trial. The nature and extent of that right may be affected by the gravity and complexity of the charge. In addition, although the Act does not require it, every unrepresented defendant must be informed of his or her right to legal aid if they cannot afford it themselves.
Although at different points in the judgments in that case reference is made to the right to legal representation by a solicitor or by a solicitor and counsel no issue arose as to when and in what circumstances a right to be represented by solicitor and counsel would arise and in particular whether it could arise in respect of proceedings before the District Court.
It is clear that the judgments are based on the assumption that, as the Act of 1962 and regulations thereunder provided, in all trials before the Circuit Court or the Central Criminal Court an accused had a right to be represented by solicitor and counsel and in some instances two counsel. The unquestionable right of a poor accused to be provided with legal aid for solicitor and counsel in such cases undoubtedly arises from a range of factors inherent in the trial of indictable offences before such Courts. It is sufficient to mention two of them. There is the particular seriousness attached to offences tried in such Courts because of their nature or the range of severe sentences which the Court of trial has power to impose. There is the process of trial before a Judge and jury, which for many self evident reasons is more complex than a summary trial in the District Court and which necessarily requires representation by an advocate skilled in the conduct of such trials. Again the Oireachtas itself has recognised that necessity and so provided in the case of trials before a judge and jury.
The respective role and function of the two professional branches of the legal profession are known and well established. As Griffin J. stated above when referring to the right to solicitor and counsel “Ours is an adversary system of criminal justice”. In the second of two articles entitled “Competition in the cab rank and the challenge to the independent bar”, Judge John Cooke, as he then was as a member of the Court of First Instance of the European Communities, in referring to the underlining rationale of the two professions stated, inter alia:
Solicitors, as well as barristers, are of course professionally skilled to deal with cases in the District Court, particularly those who are on legal aid panels, because that is where they have professionally exercised and developed their skills in the course of their career. The fact is that District Court cases are heard in a local court and are in the main short cases (as opposed to criminal trials which can last many weeks). Again they are in general less complex and there is less at stake. That is not in any way to suggest that they are not important or serious cases which at times will give rise to complex legal issues.
There are many criminal cases which come before the District Court which are serious and complex. Solicitors are professionally well qualified to represent and conduct defences on behalf of defendants in such cases so as to meet the requirements of constitutional justice. But the question, as properly raised by the appellant, is whether that can be said of all cases where there is a confluence of the gravity of the charges and particular complexity or other factors.
As O’Higgins J., also stated in the Healy case:
These criteria are very close to if not substantially the same as the criteria set out in s. 2(1) of the Act for the grant of legal aid in the District Court but, as already pointed out, the issue of the compatibility of that section with the Constitution is said to arise because the Act does not provide for the possibility of legal aid being granted for representation by counsel in any case irrespective of the circumstances.
The Criminal Jurisdiction of the District Court
In the Healy case in 1976 the Court was not asked whether the lack of jurisdiction in the District Court to consider the possibility of providing a poor person with the assistance of counsel in addition to a solicitor was compatible with the Constitution. It would be idle now to speculate on what it would have decided had that issue been raised. This Court must deal with the issue as it presents itself today in the context of the ambit of the jurisdiction of the District Court in criminal matters. As Kenny J., observed in the Healy case “It would be foolish to lay down what constitutes a fair trial because its requisites change from generation to generation”.
It would still be true to say that the District Court does deal with thousands of relatively trivial cases and also that as a general rule the more serious or complex criminal cases requiring legal aid could not, in the Court’s view, require more than the services of a professional solicitor to meet the essential requirements of justice.
Account must however be taken of the fact that the legal environment to which the District Court exercised its criminal jurisdiction has changed significantly since the Act of 1962 was introduced.
In 1962 any consecutive term of imprisonment which could be imposed by the District Court could not exceed 12 months, by virtue of s. 5 of the Criminal Justice Act 1951. The section provided that where two or more sentences passed in respect of a defendant by the District Court were ordered to run consecutively “the aggregate term of imprisonment shall not exceed 12 months”.
This section was amended in 1984 by the Criminal Justice Act which substituted the period of 2 years for the aforementioned period of 12 months. Thus, since 1984 where the District Court imposes two or more sentences to run consecutively the aggregate term of imprisonment may be twice the amount which it was in 1962. No change was made as regards the provision of legal aid.
Perhaps of even more pertinence is the fact that there is a wide range of potentially complex offences created in recent decades for which the District Court now has jurisdiction and which have serious import from both the perspective of the public interest and defendants. Many of these offences arise from the introduction of modern regulatory regimes often accompanied by regulatory bodies with powers of prosecution.
Such offences arise in areas such as competition law, (enforced by the Competition Authority), consumer protection (enforced by the Consumer Protection Agency), environmental law including illegal dumping, handling of hazardous waste, environmental pollution, and planning (enforced by the Environment Protection Agency, local authorities, planning authorities and other agencies), food safety (enforced by the Food Safety Authority), company law including corporate governance (Director of Corporate Enforcement) to name at least some.
In addition of course the nature and volume of crime has changed dramatically over the decades. For example dealing in and supplying illicit drugs was virtually unknown in the 1960s. Successive statutes, apart from amending legislation governing long standing criminal offences, have created new ones. The offence of possession of child pornography, which may in certain circumstances be tried summarily, is an example. Another obvious example is the regulation of the farming or agriculture industry which has seen a host of regulatory measures often, as in this case, designed to protect a vital industry from the hazards of animal disease and also public health. Such regulatory measures may be introduced in the implementation of national policies or be required to be introduced as a result of obligations arising from EU legislation.
There can be no doubt that over recent decades the enforcement and application of the criminal law in the District Court has become more complex.
In his book on sentencing law and practice, Mr. Thomas O’Malley, summarised some aspects of the evolution of the criminal jurisdiction of the District Court. He noted that:
As a result of all these developments the District Court’s criminal jurisdiction has grown enormously ….”
It is in the foregoing context that the Court is asked to consider whether a defendant without sufficient means who is to be tried on a criminal charge before the District Court has a constitutional right to make an application for legal aid for both solicitor and counsel and have that application determined on its merits in the essential interests of justice.
In support of his contention the appellant relied in part on the fact that the State prosecutor in this case chose to be represented by solicitor and counsel. It was pointed out on behalf of the appellant that such counsel was part of a “special panel of experienced counsel”, ten in number, who habitually represent the State in such prosecutions. It appears that that panel consists of members of the Bar of high standing and long professional experience including at least 3 senior counsel who could be counted among leaders of the Bar one of whom, regrettably, is now deceased. Curiously, State counsel were not in the position to confirm or reject the existence of the panel but acknowledged that counsel was engaged in the case against the appellant. In fact the evidence in the High Court was that most of the prosecutions of the kind involved in this case were conducted by counsel on behalf of the State.
At one point it was suggested by counsel for the State that the retention of counsel conferred no “added value” and he speculated that if counsel were retained it was possibly to avoid a “valuable solicitor” having to leave his office and conduct the prosecution. It is not necessary to pronounce on the State’s explanation for the engagement of counsel in this particular case although the Court is not entirely convinced by the suggested explanation for that. It may well be that an agency or authority which has the responsibility for enforcing the regulatory regime in the courts throughout the country might engage counsel for reasons that are not germane to the gravity or complexity of a particular case. Neither does the Court exclude the possibility that the very reason for engaging counsel may be due to particularly contentious issues of fact or the particular complexity of the law governing an offence.
It is nonetheless a fact that the State, with all the resources which it has at its disposal, is at liberty to engage counsel to act for the prosecution before the District Court irrespective of whether the services of counsel in addition to that of a solicitor are strictly required by the circumstances of the case. More relevantly it may do so because the State considers representation by counsel is necessary due to the complexity or gravity of the case.
Counsel for the appellant did however rely on the principle of “equality of arms”. Quite correctly, counsel did not go so far as to say that equality of arms meant parity of representation – so as to claim that where the State is represented by counsel a defendant had a right to be represented by counsel. To adopt an observation, cited by the amicus curiae, made by the European Court of Human Rights in Steel & Morris v. United Kingdom  41 EHRR “The adversarial system … is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent’s evidence in circumstances of reasonable equality.” And it might also be noted that that Court has not found that simple parity of representation is required by the principle of “equality of arms”. In general terms the principle or notion of equality of arms means that neither party in criminal trials should be procedurally disadvantaged as compared to the other party. As Henchy J., put it in the Healy case, a defendant is entitled to have his or her trial conducted in the manner which would not “shut him out from a reasonable opportunity of establishing his innocence; or, … of receiving a sentence appropriate to his degree of guilt and his relevant circumstances”. The notion of “equality of arms” is but one aspect of the general right to a fair trial or a trial in due course of law. Therefore the Court does not consider it necessary to analyse that notion further for present purposes since the issue in this case falls to be decided within the broader notion of right to a just or fair trial. Within that broader concept the fact that the State prosecutor is represented by solicitor and counsel may be a relevant factor should a court or other body have to determine whether the defendant should also be represented by counsel as well as a solicitor. If such a question fell to be determined by the District Court, which of course it has no power to do at present, and it was satisfied that granting legal aid for a solicitor only, notwithstanding the appearance of counsel for the State, was sufficient to meet the essential requirements of justice in providing effective legal representation then the constitutional obligation to the defendant would be met. On the other hand, in deciding whether legal aid should be granted to include counsel as well as solicitor such a court would in such instance, be entitled to take into account the fact that the State were represented by counsel in determining whether there were particular aspects of the case as regards the gravity, complexity or other exceptional circumstances which required the grant of legal aid for counsel in all the circumstances of that case. In making the foregoing observations the Court does not purport to pronounce in this judgment, for reasons stated later, on whether in fact in the circumstances of this particular case the appellant should be granted the services of counsel on legal aid.
It is also appropriate to note that the right to a fair trial is a right of both the prosecution and a defendant. It is a right which is protected in any modern, democratic society in the interests of society as a whole and indeed is one which is enshrined in the Constitution by the decision of the people. Sometimes simplistic and unthinking comments surface in the public arena suggesting that fairness and fair procedures at a criminal trial only exist for the benefit of criminals. So far as a defendant is concerned these are protections in place for every citizen charged with a criminal offence, who enjoys the presumption of innocence unless proven guilty. Furthermore the constitutional guarantee to a fair trial minimises as far as reasonably possible the risk of an innocent person being convicted of an offence. The fact that an accused’s defence can be effectively and fairly advanced at a trial is essential for the purpose of public confidence in the system of trial. It also gives confidence to the victims that the true perpetrator of the crime has been convicted. It is of no benefit, to say the least, to a victim or society in general if a conviction is later set aside on the grounds of a miscarriage of justice at a time when the trail to the true culprit may have become obliterated or difficult to pick up again with the passage of time.
In this case the Court must address the issues raised by the appellant concerning his right to apply for criminal legal aid and the constitutionality of s. 2(1) of the Act of 1962 in the light of the constitutional principles governing the right to a fair trial referred to earlier in this judgment and the nature and scope of the criminal jurisdiction which the District Court exercises today.
There is no doubt that s. 2(1) of the Act of 1962 accords only limited jurisdiction to the District Court to grant legal aid in criminal cases being tried before it. If legal aid is necessary in the interests of justice the certificate for legal aid granted by the District Court may only provide for representation by a solicitor. It has no jurisdiction whatsoever to provide for representation by counsel in a criminal trial in that court.
That is to say that whatever “the gravity of the charge”, whatever “exceptional circumstances” may exist and whatever “the interests of justice” might require, a defendant in a trial before the District Court has no right to apply for legal aid to include counsel.
Unless it could be assumed that no criminal case which comes before the District Court could ever require representation by counsel, in order to ensure that the trial was in accordance with the requirements of constitutional justice, this limitation on a poor defendant’s right to apply for legal aid must be considered arbitrary.
Having regard to the extremely wide scope and range of offences which come within the jurisdiction of the District Court in the field of criminal law and the increased complexity of modern legislation and regulatory measures, with which the Court is by no means unfamiliar, the Court is satisfied not only that the necessity in the interests of justice for a defendant to be represented by counsel as well as solicitor cannot be excluded but that cases, however infrequently that may be, will inevitably arise where it would be essential that an indigent defendant be afforded such legal aid.
In order to vindicate the constitutional right of an indigent defendant in the District Court to a fair trial he or she must be entitled to legal aid with representation by counsel as well as solicitor where it is established that because of the particular gravity and complexity of the case or other exceptional circumstances such representation is essential in the interests of justice. It follows that any such defendant must have a right to apply for such legal aid and have the application determined on its merits.
Context and Ambit of the Right to Criminal Legal Aid
The constitutional obligation on the State to vindicate the rights of an indigent defendant to legal representation is met by providing him or her with legal aid to obtain such representation for the preparation and conduct of a defence which is essential to the interests of justice but no more. The State is not bound to provide what might be perceived by an individual defendant to be the optimum form of representation or that which he or she desires. Undoubtedly a reason why the State would limit the provision of legal aid, as it has sought to generally in the Act of 1962, to that which is required in the essential interests of justice, is the burden which the public purse would otherwise have to bear if the scheme had too broad a criteria for the grant of legal aid. In this context it must be said that a Court when considering whether to grant legal aid usually has little more to rely on other than the required form which has been filled out by the defendant/applicant. A Court, such as the District Court, is only rarely in a position to go behind what is stated in the application form or in an uncontradicted statement made in Court. The D.P.P., understandably, is given no particular role in relation to the grant or refusal of legal aid. A Court is not an investigatory body but the State has investigatory means at its disposal. Rarely does the State raise any objection at the time of the initial application for legal aid, or subsequently, concerning the means of a defendant to pay for his or her own defence. That said, it is probably the situation in most such cases that the circumstances of a defendant as known by the Gardaí make it obvious that he or she is a person who cannot afford their own representation.
As earlier emphasised the Court is of the view that those criminal cases in which the District Court grants legal aid the right of a defendant to such legal aid will normally continue to be met when he or she is awarded legal aid for a solicitor only. This is so even where the case may be considered to be grave, complex or involve other exceptional circumstances. District Court trials are less formal than jury trials. There are also procedural options available to the District Court which may facilitate the defence in certain circumstances. Unlike jury trials, hearings in the District Court may be adjourned mid-hearing if this is necessary to permit a defendant’s solicitor to deal with an issue which for good and sufficient reason cannot be addressed there and then. In substance it would be a question of judgment in each case for the Judge (assuming that a Court was conferred with such jurisdiction) concerned based on the degree of gravity and complexity in conjunction with any other exceptional circumstances of the case which may be taken into account, and which taken together necessitate a conclusion that the legal aid granted should include counsel. The object is to enable a defendant to be legally represented so that his or her defence can be properly prepared and fairly put.
In considering the legal aid to be granted a court would be bound to take into account any procedural measures which may assist the defendant in the preparation and presentation of his case. This may include the fact that the defence, in some cases at least, is provided with the statements setting out the evidence which the prosecution propose to call. This procedure is often followed in the District Court where the interests of justice in the particular case require that this be done. Although it is a relatively rare occurrence in the District Court there have been cases where the prosecution have been required to furnish written submissions on the law, in advance of a final decision, to the Court and to the defence. This gives advance notice to the defence of the legal ground which the prosecution intends to traverse and though, naturally not bound in any way by the approach of the prosecution in such submissions, in particularly complex cases the procedure may facilitate the defence in addressing particular legal issues.
The Effect of section 2(1) of the Act of 1962
As O’Higgins C.J., stated at page 351 in that case “It seems to me that in 1962 the State recognised the existence of this fundamental right when the Oireachtas passed the Criminal Justice (Legal Aid) Act of that year … to the extent that this Act provides for legal aid, it discharges what I consider to be the constitutional duty imposed on the State. (emphasis added).
Subsequently in his judgment (at page 352) O’Higgins C.J., added “While I regard the Act as a recognition by the State of what is the constitutional right of a poor person facing a serious criminal charge, I do not say that the provisions of the Act match exactly what the Constitution requires”. Although he then went on to say that the right of an accused, as expressed in the Act, to be represented by solicitor and counsel of his choice might be narrowed or circumscribed and still be consistent with the Constitution, O’Higgins C.J., was clearly of the view that the Act, insofar as it went, consisted of positive provisions designed to give effect to the constitutional right of poor persons to legal aid without being definitive as to the extent of the constitutional right. Although the constitutionality of the Act was not in issue in that case that approach is of course the correct one since the ambit of any right can only be determined by reference to the provisions of the Constitution themselves.
In very much the same vein Henchy J., at page 354 of the Report in the Healy case said of s. 2(1) “So far as the section goes, it is the legislature’s implementation of the constitutional safeguards for the personal liberty of poor persons who are charged with criminal offences”. (Emphasis added).
In the Court’s view the provisions of the Act of 1962 and in particular s. 2(1) are positive rather than prohibitive or restrictive in that they conferred, for the first time, on the District Court jurisdiction to grant legal aid in specified circumstances in the furtherance of a constitutional right.
As both O’Higgins C.J., and Henchy J., observed in the Healy case, s. 2(1) insofar as it goes, vindicates a constitutional right in permitting defendants to apply for free legal representation by a solicitor in criminal trials before the District Court. As the Court has already pointed out that must be considered sufficient to vindicate that right in the vast majority of such cases. Notwithstanding the positive nature of the provisions of s. 2(1) the appellant complains that he has been deprived of his constitutional right to apply, and where appropriate be granted, legal aid to include counsel as well as solicitor.
The absence of a right to apply for such legal aid in the District Court, prior to 1962 and since, stems not from the specific provisions of the Act of 1962 and in particular from any prohibition in that Act, but from the failure of the Oireachtas to confer at any time on the District Court or any other body, jurisdiction to consider an application for legal aid to include solicitor and counsel in the exceptional circumstances to which the Court has referred above.
Since the effect of the Act of 1962 is to confer on the District Court jurisdiction to grant legal aid in circumstances it never had previously the mischief complained of by the appellant stems not from the effect of its provisions but from the failure of the State to make provision at any time for such legal aid.
In considering this issue the Court considers it relevant to point to the provisions of Article 15.4.2 of the Constitution which provides as follows:
From the perspective of the appellant it is claimed that there is a constitutional deficiency in the Act in failing to provide a statutory mechanism which will enable a defendant to apply for, and obtain in appropriate circumstances, legal aid which would include counsel as well as solicitor in criminal cases before the District Court. However, as previously pointed out, and as emphasised in the Healy case, the duty of providing adequate legal representation in criminal cases to persons who cannot afford it themselves rests with the State. It is a matter in the first instance for the State to provide the mechanism or procedures by which this right may be vindicated. It may do so by statutory or administrative means provided the provision of such legal aid is secured in a sufficiently clear and certain manner. There is nothing in the provisions of the Act of 1962, and in particular in s. 2(1), which could be said to prohibit or create an obstacle to the introduction by the State of procedures or means which would enable a defendant in a criminal prosecution before the District Court to apply for legal aid which could, in particular circumstances, include representation by counsel. This is so even if the State chose to provide such legal aid by supplemental or other provisions amending the Act of 1962.
So far as the right to be represented by a solicitor in such cases is concerned the Court is satisfied that s. 2(1) insofar as it goes secures that constitutional right, although to a limited extent, and cannot be considered repugnant to the Constitution in any respect. There may be circumstances where the provisions of an Act facilitate the exercise of a constitutional right to a limited extent only but nonetheless limit the exercise of the constitutional right in a manner which has other consequences which are incompatible with the Constitution such as invidious discrimination. As regards the Act of 1962 the Court does not consider that any other consequences of that nature arise in this case.
Accordingly, the absence of a right to apply for legal aid to include counsel in appropriate cases must properly be considered as stemming from a failure of the State to make by one means or another, specific provision for such legal aid rather than from any provision, in particular any prohibition, in the Act of 1962.
The Court has already determined that the denial of an opportunity to apply for and be granted, where appropriate, such legal aid is a denial of a constitutional right.
He is entitled to have that constitutional right vindicated. Article 40.3 of the Constitution imposes on the organs of government of the State the duty to defend and vindicate the personal rights of the citizen.
As this Court has frequently pointed out, and as Henchy J., repeated in the Healy case, this Court is one of the organs of government, the judicial organ. In exercising its judicial functions it must seek to vindicate such rights.
In doing so the Court is not confined to the specific form of remedy sought by a claimant who has established that his or her fundamental rights under the Constitution are being denied. Where that is established this Court has jurisdiction pursuant to the provisions of the Constitution and in particular Article 40.3 to grant such remedy as it considers necessary to vindicate the right concerned. As Barrington J., pointed out in McDonnell –v- Ireland  1I.R. 134 at 148 “… when the Legislature has failed in its constitutional duty to defend or vindicate a particular constitutional right pursuant to the provisions of Article 40.3 of the Constitution … this Court, as the Court of last resort, will feel obliged to fashion its own remedies.”
The Court is satisfied that it would be unjust and contrary to the appellant’s right to a trial “in due course of law” as required by Article 38.1 of the Constitution if the prosecution of the charges brought against him were allowed to proceed while he is denied the right to apply for legal aid to include solicitor and counsel and have that application determined on its merits. To allow a trial to proceed without any possibility of determining whether it was essential to a fair hearing that the defendant be represented by solicitor and counsel would be, in the words of O’Higgins J., in the Healy case, “to tolerate injustice”.
Conclusion on First Issue raised by the Appellant
Accordingly the Court will grant a declaration that the appellant has a constitutional right to apply, prior to being tried, for legal aid in the criminal proceedings brought against him in the District Court and to have that application heard and determined on its merits. It will also make an Order prohibiting the prosecution from proceeding in respect of the criminal charges referred to in these proceedings unless and until the appellant is afforded that right.
The Second Ground relied upon by the Appellant concerning the Constitutional Issue
Section 5 of the European Convention on Human Rights Act 2003