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REALITIES OF LEGAL
by GARRETT SHEEHAN, Solicitor
When the Minister for Justice, Mr. O'Malley, spoke
on "Legal Aid in Ireland" at a recent world conference
in Belgrade, he made three points which need further
examination. First, he declared that it has been tradi-
tional for members of our legal profession to give their
services to needy clients at reduced fees or completely
free. Second, that legal aid is available in criminal
cases. And third, that legal aid and advice in civil mat-
ters would be too costly to introduce.
Whatever about the past it would not seem true of
the legal profession today that it caters for the poor.
The majority of accused persons who appear daily in
minimum fee of £10-£15 for legal representation at
this level would appear to be too high for many de-
fendants. Few lawyers appear to be concerned about
this. And it is not sufficient for Mr. O'Malley to
point out that the judges act with scrupulous fairness.
A District Justice or Circuit Court judge is not a
defence attorney.
Even where an accused person pleads guilty there
may be a number of factors in mitigation of his guilt
which require a presentation by a lawyer. Recent
articles in
The Irish Times
by Nell McCafferty on the
Children's Court and "Women in Court" showed that
on the occasions she was present in the juvenile court
and in Court Four at the Bridewell the majority of
children and women were not represented.
The rapid growth of the Free Legal Advice Centres is
further evidence that the legal profession is not serving
the poor. If the people who attend these centres knew
of solicitors who would attend to their legal problems
for a fee they could reasonably afford, they would
surely go straight to them.
The Gap
Mr. O'Malley claimed that the Legal Aid Scheme,
which was introduced in 1965 for criminal cases, was
comprehensive in character and provided not only for
legal aid in criminal courts of first instance but also in
the various Courts of Appeal. A close reading of the
1962 Criminal Justice (Legal Aid) Act shows that this
could be true. However, there is at least one serious
gap in the Act which would refute the Minister's claim
that it is comprehensive. An amendment in the Criminal
Procedure Act 1967, provided that where a person
elects to be tried by a judge and jury, instead of having
his case dealt with summarily in the District Court, he
is not entitled to legal aid for the preliminary investiga-
tion of his case. If the case is one where the Attorney
General refuses or is unable to consent to summary
trial, legal aid will be granted only if the charge is one
of murder.
To be entitled to legal aid in the District Court, a
poor person must show that the charges he faces are
serious or else that it is essential in the interest of
justice that legal aid be granted. Legal aid is granted
at the discretion of the District Justice and such deci-
sion is not appealable. Thus, on one occasion last April,
legal aid was refused in the case of a 16-year-old boy,
known to be mentally handicapped, who appeared on
charges of larceny and housebreaking. A further weak-
ness of this part of the Act is that in many cases legal
representation is necessary to shqw that a particular
case is a proper one for legal aid.
The greatest weakness of the 1962 Act is that it
contains no provision for informing accused persons of
their possible right to legal aid. The Department of
Justice appears to be reluctant to remedy this defect.
In the Children's Court, for example there is a notice
measuring six inches by four on the wall on the right
as you go into the main building. This notice is
partially blocked by the door and it is pure chance if
any parent or child ever sees it.
No Notice
In Court Four at the Bridewell (the court where all
accused adults in the Dublin Metropolitan District first
appear) there is no notice. If Mr. O'Malley is con-
cerned about the rights of accused persons, the least
he could do would be to ensure that they are aware
of their possible right to legal aid.
Finally, Mr. O'Malley said that in view of more
pressing demands on State resources it would be too
costly to introduce civil legal aid at the moment. One
wonders if he has given thought to the establishment
of Legal Centres in poor areas. In January, 1967, the
Society of Labour Lawyers held a meeting in London
and recommended the establishment of such centres as
a means of ensuring that justice would be available for
all. This meeting had previously found that despite the
fairly comprehensive system of legal aid in both civil
and criminal matters operating in the U.K. there were
still many people who needed legal advice but did not
get it. The society suggested that the system of local
legal centres be introduced by way of a pilot project
in three or four areas.
The Department of Justice should finance a pilot
project in Dublin. This project could be set up in any
one of a number of areas. One could be started, for
example, close to the Five Lamps at Amiens Street
and would initially serve the surrounding areas—North
Wall, East Wall, North Strand, Fairview, Killarney
Street, Summerhill, Hardwick Street, etc. While such
a centre could be self-supporting, this would not be of
primary importance. An efficient and free legal service
could be provided for the people of these areas at
approximately £12,000 a year. The centre should be
run by a solicitor of five years' standing in general
practice and he would be assisted by a barrister and
solicitor, both of whom would have to have had at
least three years' continuous practice since qualifying.
The centre could advertise its service in the Local Post
Offices and possibly by the distribution of handbills in
the areas concerned.
The combined wisdom of both the Incorporated Law
Society and the Bar Council would no doubt help to
indicate how such a centre could be most effectively run.
In the introduction to their pamphlet entitled
Justice for All,
the Society of Labour Lawyers says :
"A society which relies so heavily on law as an instru-
ment both of social order and reorganisation, including
the distribution of wealth and other advantages, has a
duty to ensure that its members are enabled to conduct
their lives within the law, receive justice when the law
is enforced against them, and take advantage of the
benefits which the law confers upon them." In Ireland
this duty is clearly not being discharged. The establish-
ment of local legal centres would go some way towards
a remedy.
The Irish Times,
October 1971