The Gazette 1975

'S decided to prefer charges against him. At this stage

we believe that a person about to be charged should

e informed of his right to legal assistance in clear

and unambiguous terms; he should further be informed

that if he is unable from his own means to provide such

assistance he is entitled to have it provided for him

y the State. He should be supplied with a list of

solicitors willing and equipped to act on Legal Aid and

should be given an opportunity to communicate with

a solicitor either from the list or otherwise. Should

he choose a Legal Aid Solicitor and should that solicitor

attend to assist him the latter should be paid a fee for

his service even if legal aid is not subsequently con-

tinued on a later application. There appears to us to be

n o

reason why a person who avails of free legal aid

under these circumstances and is subsequently found

not to have been entitled to it should not be required

to indemnify the State against the cost involved. We

believe that the cost involved would be more than

niade up for by the benefit to the prisoner and to

the administration of justice of having assistance

Mailable at this very vital stage in the process.

A corollary to this right in the Accused person would

ppear to be the duty on the solicitors on the panel

jo make arrangements between themselves to have at

•east one solicitor available at all times. Such a system

taken for granted by doctors and by others convinced

that they are providing essential services.

It would also appear to follow, if the right to choose

his solicitor is to be honoured, that a solicitor so sum-

moned (altrough entitled to payment for the services

actually rendered by him) would not necessarily be

the solicitor who would ultimately conduct any pro-

ceedings which might follow.

2. We believe that any system of legal aid which

Joes not make provision for Habeas Corpus, Certiorari,

Prohibition, and bail applications is fundamentally

lacking.

Similarity we can see no basis of principle upon

which citizens of means can test the constitutionality

o f

penal statutes invoked against them or cause cases

t o

be stated for the determination of Superior Courts

points of law arising in the course of penal pro-

eeding.s whilst the poor are debarred from having

d i s t a n ce in mounting and pursuing such proceedings

solely because of their poverty.

- We consider that the terms of "gravity of the

harg

" and "exceptional circumstances" in Section 2

toe 1962 Act and "serious nature of the offence"

Sections 4, 5 and 6 of the Act are inadequately

defined. Indeed whilst the commonly accepted canons

statutory interpretation would lead one to expect

toat the different words indicate different meanings we

a r e

at a loss to understand what distinctions it is sought

t o

make.

We would suggest that any criminal charge liable

° attract a sentence of imprisonment for any term or

to result in the loss of livelihood should auto-

atically entitle a needy person to legal aid. In addition

discretion should be left with the Court to award

gal aid in any other case where the Court is of

°Pmion that the interests of justice so require and in

°f doubt such doubt should be resolved in favour

o f

die Applicant.

4. We consider that the absence of any appeal

from a refusal of legal aid is so harsh as to constitute

a fundamental defect in the system. Such absence of

appeal has resulted in very considerable unevenness

of application of the Act throughout the country and

from Court to Court. We believe that the right to

renew an application in an Appeal Court is not an ade-

quate safeguard in this regard. Whilst we appreciate

that decisions on whether or not to grant legal aid must

frequently be made as a matter of urgency we consider

that an appeal against a refusal should lie preferably

to a single Judge

a single judge of the Circuit and

each of the Superior Courts. We believe that such

a right of appeal would in time even out the unequal

application of the Act now being experienced.

Again it is suggested that in the case of an appeal

being lodged legal aid should be granted pro tempore

and in the event of its being ultimately refused the

money expended should be recovered from the appel-

lant.

5. We consider that the basis upon which the

Remuneration at present is upon the basis of a pre-

at under the present system is arbitrary and totally

unsatisfactory both from the point of view of the

Accused person and of the profession.

Remuneration at present is upon tre basis of a pre-

ordained fixed fee irrespective of the gravity, perplexity

or difficulty of the case or any other consideration.

(The only deviation from this norm is the provision for

a slightly higher level of taxation in murder cases). We

believe that this inflexibility lies at the root of most of

the difficulties bearing on the present system.

We believe that, if a legal aid scheme is to work so

as to afford the poor equality before the law, the basis

of remuneration must be that of reasonable payment, of

a standard which would be paid to a solicitor or bar-

rister doing comparable work outside the scheme, for

work reasonably and necessarily done. We further be-

lieve that the appropriate person to decide in the first

place what work should be done is the person answer-

able for it — the solicitor and barrister in their respec-

tive spheres. We accept that whether any given work

was reasonable and necessarily done requires adjudi-

cation and we see no reason why the ordinary pro-

visions for taxation should not apply. The Taxing

Master has long since had power to tax bills of costs

in criminal cases — whether in cases where the Court

of Criminal Appeal quashed a conviction and awarded

costs of the trial or under the jurisdiction to award

costs in criminal cases declared by the Supreme Court

in the People (A.G.) v. Bell — (1969) I.R.24. Similarly

taxation in State Side applications has long since been

carried out by the Taxing Master. There is well estab-

lished case law governing such taxations, and the right

of appeal to the Court. We cannot see any basis

of principle upon which such well established pro-

cedures available to all others should be denied to

the poor in favour of a set of arbitrary payments bear-

ing no relationship to the realities of any human

situation.

We believe that all disbursements made by a solicitor

on behalf of his client in a legally aided criminal

basis stated by Gannon, J. in his judgment should be

recoverable by him on taxation as laid down in Dunne

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