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GAZETTE
SEPTEMBER1979
COMMENT:
The Public Defender: A Useful
Concept — somewhere else?
In a recent, but little publicised speech to the
Conference of European Ministers of Justice, the Minister
of State for the Department of Justice, Mr. David
Andrews, referred to the fact that the Tormey Committee
on Criminal Legal Aid was considering the advantages of
the Public Defender System. While the Minister was
careful to indicate in his speech that he did not think it
right to express a personal view on the merits of a salaried
service it must be taken as very significant that reference
was made to the proposals on such an occasion.
While it has been rumoured for some time that the
introduction of a Public Defender System, to replace the
present Criminal Legal Aid Scheme, was being mooted, it
was only in the early summer of this year that any indica-
tion was given by the Tormey Committee to outside
bodies that the matter was under serious and apparently
urgent consideration. It seems unfortunate that the views
of the Professions were being sought during what is for
many practitioners a holiday period and with peremptory
time limits.
The Public Defender System originated in the United
States under the Federal Public Defender Services Legis-
lation of 1964 and 1970 which followed the seminal
decisions of the United States Supreme Court in
Gideon v.
Wainright
and
Miranda
v.
Arizona
the first of which
established that a person accused in the Federal Courts of
a felony (an offence for which the penalty is a year's
imprisonment or more) has the right to be represented by
Counsel and the
Miranda case
imposed an obligation on
the Police to a suspect taken into custody of his right to
Counsel.
In the United States the control of the establishment of
a Federal Public Defender's office is under the control of
the United States District Court with the approval of the
Judges of the Federal Circuit for the area and there is pro-
vision both for the employment of full-time salaried
employees in a Federal Public Defender's office and for
the establishment of a panel of private practitioners with a
statutory proviso that at least 25% of the persons charged
with federal offences have to be defended by a panel
attorney.
The Federal Public Defender's office has been estab-
lished in most states and is funded out of the funds pro-
vided for the administration of the Courts. There is an
interesting statutory provision that the salary of the
Public Defender in any district is not to exceed die salary
of the United States Attorney for the District and the
salaries of lawyers in the Federal Public Defender's
System are linked to those in the office of the United
States Attorney for the district. It appears that salaries in
the Federal Public Defender Service are generally found
acceptable by lawyers and it appears to be the position
that posts in the Public Defender system are chosen by
lawyers who propose eventually to go into private
practice as Trial Lawyers as a useful training ground. The
same situation does not appear to the panel attorneys
where there is dissatisfaction about the level of remunera-
tion and it is suggested that the top 10% of Criminal
Practice Firms do not apply for panel membership. It is
significant that State Public Defender systems are not at
all so well funded.
A recent instalment of the BBC 2 Television series
"Circuit 11 Miami" provided a brief insight into the
operation of a State Public Defender System, though
largely in relation to the operation of the "Plea-
Bargaining" practices so common and allegedly so
necessary in the overworked Florida judicial system. The
Public Defender Attorney shown, appeared to have
behaved reasonably and properly within the limits of the
"Plea-Bargaining" system but his client expressed himself
as being totally dissatisfied and clearly regarded the
Public Defender as being an ally of the prosecutor and the
judge in "the System". The fact that the "Plea-
Bargaining" system operated at all makes it very difficult
to assess the operation of a Public Defender Systme but
there does appear to be reasonable satisfaction with it.
Whether such a system translated to the Irish scene
would work is however a totally different question. There
is unfortunately no history of paying top professional
people in the Public Service salaries comparable to those
which they would earn elsewhere either in private prac-
tice or as whole-time employees of commercial organisa-
tions. It is well known that great difficulty has been found
in filling certain local authority Law Agent and Assistant
Law Agents' positions in recent years and it is difficult to
avoid the conclusion that this is due to the low status in
the Public Service which the Law Agent holds, in spite of
the enormous responsibility and wide range of legal
problems that he is expected to deal with, and the "dead
hand" of the first Devlin Report has left the salaries of
Law Agents and Assistant Law Agents well below those
on offer in private practice or for salaried solicitors in
commercial organisations. The gap between the starting
salaries in the Public Service, which are not inadequate
and the top salaries which do not compare favourably
with outside salaries is far too narrow and must be seen
as a deterrent to many prospective applicants.
It is to be feared that if a Public Defender System was
introduced in Ireland, particularly if one of the motives
for its introduction was the hope of a reduction in the
present very modest cost of a Criminal Legal Aid
Scheme, no effort is likely to be made to ensure that the
top posts in the system are adequately remunerated or
carry a suitable status and accordingly while it may prove
possible to recruit adequately at lower levels the system is
unlikely to attract the calibre of appointee at its top levels
to give the system the status which it would need if it were
to be seen as a genuine attempt to cope with the needs of
accused persons without means and not merely as a sop
to public opinion or the European Court of Human
Rights.
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