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COMMITTEE ON COURT
PRACTICE AND PROCEDURE
The Committee on Court Practice and
Procedure are at present considering
the
question of civil jury trial with a view to making
recommendations to the Minister for Justice as
to whether this mode of trial should be
modified or abolished.
The Committee are
prepared to hear evidence from members of
the legal profession on this matter. Persons
wishing to attend a meeting of the Committee
for this purpose should write to the Secretary
at the Four Courts, Dublin, or ring 76642,
Extension 42.
DECISIONS OF PROFESSIONAL
INTEREST
Order against solicitor to pay costs reversed
The Court of Appeal has reversed the decision of
a Divisional Court which had ordered a solicitor to
pay fifteen guineas the costs of a successful appeal by
the prosecution from a decision of justices dismissing
summonses in a road traffic case. This case was
reported in the January issue of the GAZETTE at
page 68. The informations were laid against the
accused, whom the solicitor represented before the
justices, in February 1961
five weeks after the
alleged offence. The respondent could not then be
found and the summonses were not served until
September :8th, 1961. The solicitor had taken the
point that the proceedings were barred by lapse of
time and this was held by the Divisional Court to be
a bad point. The particular section upon whiich the
point was taken provides that summary proceedings
for the offence should be " brought" within six
months from the date of commission of the alleged
offence and the solicitor had submitted that the
proceedings were not " brought " until the summons
was served.
In the Court of Appeal it was stated by Lord
Denning M. R. that the solicitor appearing as he was
on behalf of the accused had a duty to take any
arguable or even bad point which could honestly
be put before the court on behalf of his client. An
advocate had not to determine whether a point was
good or bad.
His duty was to take any point
available and it would only become misconduct if it
was dishonest, if he knowingly took a point and
thereby deceived the court. Nothing short of that
would amount to misconduct in an advocate. Lord
Denning described
the point taken as
"fairly
arguable." Another of the judges thought that it was
" faintly arguable." In addition it was held that no
order should be made against the solicitor to pay
costs in pursuance of the jurisdiction over solicitors
unless fair notice is given to the solicitor of the
matter alleged against him as misconduct and unless
he was given a fair opportunity of being heard in
answer.
In this case the solicitor had not been
given such an opportunity and on that ground alone,
apart from the fact that in the opinion of the Court
of Appeal there had been no misconduct, the
decision of the Divisional Court should be reversed.
(The IMW Times.
May 3rd, 1963).
Mere presence at an affray not sufficientfor a conviction of
aiding and abetting
The Court of Criminal Appeal in England allowed
the appeal of three defendants against their con
victions at Lincoln Assizes on February 8th 1963. The
appellants were accused and convicted of aiding and
abetting an affray at Scunthorpe on September 8th,
1962 in which a number of Somalis fought with a num
ber ot white men and one Somali was killed. The basis
of the appeal was a complaint that the trial judge had
wrongly directed the jury as to the law of aiding and
abetting an affray. All the appellants had stood and
watched at the fight and it was the prosecution's
case at the trial that they were thereby aiding and
abetting it. The judge has a printed direction on the
law which he handed to each member of the jury
and paragraph 4 of this direction ran as follows :
" Every person is however a party and guilty who
d) agrees that such a fight should take place and
in pursuance of that agreement is later present at it.
(2) Without such agreement unlawfully joins in such
fight or being present chooses to remain either
(a)
knowing that his continued presence encourages the
fight or
(b)
intending to join in the fight it his help
was needed by his side." Exception was taken by
the defence to paragraph 4 (2)
(b~)
and it was said
that in effect the judge had told the jury that they
were in duty bound to convict an accused person
who was proved to have been present at an affray
if it was also proved that he nursed an intent to join
in if his help was needed. This was said to be so
notwithstanding that he did nothing by word or
deed to execute his intention.
If this were right a
man might be convicted for his thoughts.
In the
opinion of the court encouragement in one form or
another was the minimum requirement before an
accused person could be a principal in the second
degree of any crime. In the present case paragraph
4 (2)
(b)
amounted to a basic misdirection tor the
jury might well have thought they were bound tp