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(xxii) Where an application for separate trials is
to be made it is frequently prudent and necessary to
make arrangements to have this heard at a time or
place other than that for which the jurors are sum-
moned. Counsel and solicitor should attend on any
such application.
xxiii) Prior to trial, client's instructions with regard
to character witnesses should be taken, the desired
witnesses communicated with and a proof of their
proposed evidence taken by the solicitor and briefed
to Counsel.
(xxiv) It is the duty of the solicitor or his clerk and
of all Counsel briefed to attend at the trial and through-
out it.
(xxv) At the conclusion of the trial Counsel should
apply for leave to appeal where in his view there are
stateable grounds for so doing. He should state his
grounds to the
Court.
(xxvi) After the conclusion of the trial the solicitor
either alone or with Counsel should attend on the
client for the purpose of advising him and taking his
instructions on the question of appeal.
(xxvii) Counsel should advise upon the question of
appeal and where so instructed draft the notice of
appeal including the grounds thereof. This should be
completed as soon as possible after the conclusion of
the trial.
(xxviii) The Solicitor should lodge the Notice of
Appeal in the appropriate Court office within the time
limited by the Rules of Court.
(xxix) Where leave to appeal is granted by the
Court of trial the solicitor should take his client's
instructions on the question of bail pending the appeal
and take such steps as are necessary to implement these
instructions.
(xxx) The solicitor should bespeak a transcript of
the trial and where necessary make application to the
Court of Criminal Appeal for a free transcript. He
should attend on the hearing of any such application.
(xxxi) The client's instructions should be taken
with regard to any evidence which may have come to
hand since the trial and which may be tenderable.
(xxxii) If there be such evidence available applic-
ation should be drafted for leave to introduce same at
the hearing of the appeal.
(xxxiii) Counsel should be briefed by the solicitor
for the hearing of the appeal. If new Counsel is re-
tained for the appeal he will normally require the
material which was available to Counsel at the trial,
the transcript, notice of appeal, proof of any new
evidence and notice to admit same together with the
solicitors instruction for the appeal.
(xxxiv) Counsel attended by the solicitor or his clerk
should attend at the hearing of the appeal.
(xxxv) Where an appeal fails but a certificate of
leave to appeal to the Supreme Court is granted client's
instructions should be taken, the necessary books of
appeal should be lodged, notice of appeal drafted,
settled by Counsel, and lodged, and Counsel briefed
for the further hearing.
(xxxvi) Counsel, attended as before, should attend
at the hearing of the appeal.
(xxxv) After an appeal to the Supreme Court a
possible appeal to the European Commission of Human
Rights will have to be considered in the rare appro-
priate case.
(xxxvi) Throughout the process it is the duty of
the solicitor to make sure that all necessary legal aid
forms are completed and filed. This again may entail
attending upon his client wherever he may happen
to be.
(xxxvii) If in the course of a case or appeal it
appears that there is a statable appeal by way of Case
Stated to any other Court it will be the duty of solicitor
and Counsel to take such steps as are necessary to
pursue same to conclusion.
(xxxviii) Similarly where in the course of a case
or appeal it appears that the Constitutionality of a
statute or the legality or constitutionality of a statutory
instrument affecting the outcome of the case to the
detriment of the client are in doubt and that there
is a statable case for impugning such, it is the duty
of solicitor and Counsel to take such steps as are necess-
ary to protect his client's interests in this respect by
pursuing such proceedings as may be necessary to have
the constutionality or legality of the Act or instrument
tested.
It is not, of course, contended that any one case
is likely to present all of the complications outlined
above. Nonetheless it is our opinion that it is the duty
of a member of the profession undertaking a criminal
case whether on legal aid or otherwise to take such
of the steps above listed as are appropriate to the
particular case. Unless solicitor and Counsel are in
a position so to do, we believe that the minimal rights
of persons charged with crime or about to be charged
with crime cannot be secured or vindicated.
We have used above the model of the trial of an
indictable offence. Similar if somewhat more limited
considerations arise in respect of the trial of summary
offences. In respect of summary offences the avail-
ability of State Side remedies, particularly certiorari,
is, in our view, even more fundamental and important.
Defect? of Present Legal Aid System
Having regard to the rights and duties which we
have above enumerated we are forced to the conclusion
that the
present legal aid system is not adequate to
secure the needy client's minimal rights
or to permit
of fulfillment by solicitor or barrister of their respective
professional
duties.
We believe that the system at present in operation
is fundamentally and seriously defective in several
regards. We set out hereunder what we believe to be
the most serious and fundamental defects:-
1. The stage at which legal aid can now be granted
is unnecessarily late in the criminal process and so late
as to deprive many persons of assistance at the stage
of the process when it is frequently most needed.
We express no view as ti> whether or not a person
should have legal assistance before interrogation or
before being invited to make a statement. We take
the view that the Irish law in this regard is not settled.
The question we believe to be of urgent importance but
outside the scope of the present memorandum.
We consider that a legal aid system to be effective
must be such as to afford legal assistance to a person
seeking it at the latest at the point of time when i*
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