The Gazette 1975

THE GENERAL COUNCIL OF THE BAR OF IRELAND

REPORT ON CRIAAINAL LEGAL AID

Part II (reprinted by kind permission)

'Where no Counsel is the people fall: But in multitude

of Counsellors there is safety'. Proverbs xi.14.

Lawyers Accepting Instructions in a Criminal

Ca.ve

In approaching the first question from the point

of view of the client we have in summary answered the

second question. However, we consider that it is

desirable to examine in greater detail the practical

implications for a solicitor or barrister of what may,

and frequently will, he entailed in accepting instruc-

tions in a criminal case. Since, under the Constitution

all citizens are guaranteed equality before the law

identical considerations must apply to legal aid and

non-legal aid work.

Having embarked on an examination of the workings

of the legal aid system we make no apology for exam-

ining what is, or should be, entailed for solicitors as

well as barristers working under the scheme. We believe

that the functions of solicitor and counsel in criminal

(as in most other professional) matters are comple-

mentary and that each has his separate and necessary

sphere of activity and duty.

It would appear to us to follow that, since the State

has undertaken under the Act to provide legal assist-

ance for the needy, it must provide the services of a

solicitor where solicitors special functions are required,

and the services of a barrister where his special func-

tions are required. In seeking to implement the

scheme, both solicitor and barrister are entitled to

expect, and client to require, that the appropriate ser-

vice be provided under the Act.

We understand by the duty to 'provide' legal aid

imposed on the State by the Act, and to 'give legal

assistance free' under the Convention, a duty to make

that assistance available

and

to pay for it.

The following then are, in our view, the obligations

upon a member of the legal profession who undertakes

the duty of assisting a needy person (or for that matter

any other person) in connection with a criminal

matter:-

(i) A solicitor must make himself available for

consultation with his client as soon as he reasonably can

having regard to all the circumstances of the case.

Depending on the urgency of the case and many other

factors this may entail cancelling other appointments,

travelling to and attending at a Garda station, prison,

or Court, making himself available out of normal

office hours or during the night and substantial dis-

ruption of office routine. More than one such attend-

ance may, on occasion, be necessary.

Solicitor's Advice as to statement, identification parades,

fingerprints, bail and detention.

(ii) Arising from the preliminary consultation a

solicitor may have to advise his client on the advis-

ability of making a statement to the Gardai, advise

upon the contents of any such statement and, on

occasion, attend with his client whilst a statement is

made.

(iii) A. solicitor may have to advise his client in

relation to whether or not he should go upon an identi-

fication parade. He may have to attend upon his client

at the holding of such parade. This will frequently

entail a separate attendance upon his client at a Garda

Station at some time convenient to the Gardai with

attendant disruption to his practice, domestic affairs

or on occasion sleep. It may also entail travelling and

sustenance expenses for him. Barristers are precluded

by a ruling of the Bar from attending identification

parades.

(iv) A solicitor may at this stage have to advise his

client with regard to giving fingerprints.

(v) If the client is in custody it is the clear duty of

his solicitor to take instructions and make all necessary

inquiries and investigations with regard to the question

of bail. Should he form the opinion that there is a

reasonable case to be made for the admission of his

client to bail it is his duty to take all such steps as are

necessary to make the necessary application. On occa-

sion this will entail an application to the High Cour».

and may necessitate the retention of Counsel, drafting

and having engrossed and sworn affidavits, communi-

cating with and interviewing proposed bailsmen, attend-

ing Court on the hearing of the application and, from

time to time pursuing an appeal.

(vi) Again where the client is in custody his solicitor

will be under a duty to consider the legality and con-

stitutionality of his detention and advise accordingly-

Should he form the opinion that there is a reasonably

stateable case for contesting the legality of his client's

custody it is his duty to take such steps promptly

as are necessary to bring an application for Habeas

Corpus to the High Court. Again this may and gener-

ally will entail retaining and instructing Counsel and

will invariably mean disruption of office routine, other

commitments and not infrequently an application to a

Judge at his home. Again the application will generally

entail several appearances in Court and sometimes an

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