The Gazette 1976

GAZETTE

UNE

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-

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.