The Gazette 1976

J UNE /J U LY 1976

GAZETTE

tiorari absolute on 29 January, 1975. The three defendants then appealed, and the Supreme Court dismissed the appeal on 18 March, 1976, but stated they would give their reasons later. These young men had no particular educational attainments, and no legal knowledge. As they had no means, they could not engage lawyers for their defence. O'Higgins C.J. stated that the Preamble to the Constitution makes clear that rights given by the Con- stitution must be considered in accordance with concepts of Prud- ence, Justice and Charity, which may change and develop according as to whether society does so. As Walsh J. said in McGee v. Attorney-General (1974) I.R. 319 — "No interpret- ation of the Constitution is intended to be final for all time. It is given in the light of he prevailing ideas and concepts". The prosecutors con- tend that the Justices, in sentencing them, denied them the right to a fair trial, as well as their personal rights. The concept of Justice, referred to in the Preamble is undoubtedly carried into the Courts, by Art. 34. The Justice that is to be administered by the Courts must import not only fairness and fair procedures, but also regard to the dignity of the indiv- idual. No Court under the Constitu- tion has jurisdiction to act contrary to Justice. Even Article 38 makes it mandatory that every criminal trial shall be conducted in accordance with Justice, and that the person accused be afforded every opportun- ity to defend himself. If this were not so, the dignity of the individual would be ignored, and the State would have failed to vindicate his personal rights. Because of ignorance, or lack of education, justice may re- quire that an accused should have legal assistance, and that if necessary the State should aid him. According to McDonald's case (1965 I.R. 217), and the East Donegal Mart case (1973) I.R. 388 — Justice requires that a person charged must be afforded the opportunity by the State of being represented — otherwise the Court would tolerate injustice. This is specifically confirmed by the wording of Art. 6 (3) (a) of the European Convention on Human Rights ratified by Ireland on 25th February, 1953. The American Supreme Court had held, in Gideon v. Wainwright Corrections Director 372 U.S. that the right of an indigent defendant in a criminal trial for a serious offence to have the assistance of counsel is a fundamental right. The Criminal Justice (Legal Aid) Act 1962 provided that a person seeking legal aid must apply for it,

but a person's constitutional right is violated, if, due to ignorance, he does not apply for legal aid. Accord- ingly the convictions and sentences in these cases were pronounced in violation of the constitutional rights of both accused, as justice requires a lawyer to defend them. Per Henchy J. Art. 40(3) of the Constitution which defends and vin- dicates the personal right of every citizen, implies at the very least a guarantee that a citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a man- ner calculated to shut him out from a reasonable opportunity of estab- lishing his innocence. If, by the 1962 Act, a District Justice grants free legal aid by reason of the gravity of the charge, this is a judicial deter- mination that an accused is entitled to have such legal aid, or he would otherwise be exposed to the risk of injustice. But by virtue of his pro- claimed duty to uphold the Constitu- tion, it is the duty of the Justice to see not merely that the applic- ation is granted, but to ensure that the accused will not be tried against his will without the benefit of legal aid. In sentencing the accused with- out legal representation, the Justice deprived them of a guaranteed con- stitutional right. A trial without legal aid in such circumstances is not a trial in due course of law. Where the known circumstances are such as to show that the accused would be entitled to free legal aid, and he is not so informed, and is subsequently convicted and deprived of his liberty, such conviction and detention obviously stem from a total disregard of his constitutionally guaranteed rights. Kenny J. also delivered a judg- ment to the same effect. Parke J. concurred with O'Higgins C.J. The Supreme Court accordingly unanim- ously dismissed the appeal from the granting of an absolute order of Certiorari in these cases by Gannon The State (Healy and Foran) v. The Governor of St. Patrick's In- stitution and District Justices Eileen Kennedy and O'Reilly. Reasons given by full Supreme Court for dis- missing appeal — unreported — 22 July, 1976.

importance, and granted an appeal to the Supreme Court. Later the Supreme Court fixed the hearing for 1st November, and granted a stay of execution of the death sentence. The People (D.P.P.) v. Noel and Marie Murray — Court of Criminal Appeal (O'Higgins C.J., Doyle and McMahon JJ.) — unreported — 29th July, 1976. (Note :- No legal authorities were cited in the judgment). GRANTING OF LEGAL AID Reasons given by Supreme Court for quashing conviction and sentences imposed upon the accused in the absence of their solicitor, despite the granting of legal aid. The facts of this case were reported in the April, 1976 Gazette at page 11. Healy was 18 years old when, in June, 1974, he was charged in the Children's Court, with breaking and entering St. Mary's Rugby Club and stealing property, and pleaded guilty. Sentence was deferred to enable him to pay £18.80 — the value of the property — but by 31 July, 1974, when the Court sat, Healy had gone to England. Consequently a bench warrant was issued for his arrest. He was thereupon arrested, brought before the Court on 15th January, 1975, and sentenced to 3 months detention in St. Patrick's. Meanwhile, on 13th December, 1974, Healy and Foran, who was then 16, were charged in Dundrum District Court with having stolen and caused malicious damages to a motor car, and elected to have the charges dealt with summarily, and pleaded guilty. They were remanded for five days in custody, and were then charged with causing malicious dam- ages to another motor car which in this case they pleaded guilty to steal- ing. They were then remanded on bail until 30 December, but were un- able to get it; on that date, they were granted a Certificate for legal aid, but were not able to secure a lawyer, even when the case was listed on 30 January, 1975. The Justice there- upon decided to punish them without further ado, and sentenced both of them to 6 months detention in St. Patrick's for stealing and a further 6 months for malicious damage. On 7 February, Foran obtained 3 conditional Orders of Certiorari in respect of the 3 convictions, and on 21 February, 1975, Healy obtained similar Orders in respect of his 3 convictions. Cause was shown by the State, but nevertheless Gannon J. made the conditional Orders of Cer-

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