126 / 336
v. O'Neill (1974) IR 180.
Whilst strongly maintaining that a taxation system
related to payments ordinarily recoverable by solicitors
and Counsel working outside the system for comparable
work must be the basis for remuneration we are im-
pressed by the system of payment in force in Northern
Ireland.
There a scale of fees is in force applicable to various
crimes arranged in six categories grouped by serious-
ness of offence. After a trial the scale fee is immedi-
ately payable but where in a particular case there have
been special factors affecting the work of Counsel or
solicitor a bill for the additional fees attributable to
those factors may be taxed and recovered in addition
to the scale fee. We believe that the Northern Ireland
system has the advantage of combining the principle
of taxation with a system wrich permits of prompt
payment of at least part of the fees. We also surmise
that it cuts down on administration costs since neither
solicitor or Counsel is likely to be disposed to go to
taxation where the difference between the scale and the
additional fees is trivial.
6. The level of fees
is
inadequate.
We do not consider that this aspect of the matter
requires expatiation. The fees payable to a barrister
going to, say, Sligo, to defend a prisoner, were sufficient
to defray his travelling expenses at ordinary civil service
rates, as far as Ballisodare before the increase in petrol
prices.
A. barrister conducting a case in Green Street Court
House for two days and taking judgment on the third
day is entitled to less in fees than is paid to a junior
member of the Garda Siochana who stands in the back
of that Court House on the same three days, provided
the Garda is being paid, as he will ordinarily be, at
overtime rates.
Difficulties in this area also would be overcome by
adopting the modified taxation system suggested.
7. The provision whereby a trial Court may certify
for a fee not to exceed ten guineas for written advices
is
unworkable. It is no part of a judge's function, duty,
or right, to read, explore or inquire into any advice
written or otherwise given by Counsel to his
client. The document is the property of the client.
Accordingly, this provision if it is to be implemented
entails inviting a Judge to exceed his functions or to
authorise a payment on a speculative basis. At least one
Judge of the High Court has expressed dissatisfaction
with the provision which is universally distasteful to
Counsel. Similar objections are found to the mode of
remunerating Counsel where a number of persons are
jointly tried.
8. It is our experience and the experience of those
we have consulted both inside and outside the profession
that the existence of a free legal aid service (such as
it is) is unknown to a great percentage of those clearly
entitled to it, and frequently badly in need of it. Even
those who know of it's existence find it mysterious and
inaccessible.
We suggest that a standard mandatory procedure
should be established for informing all accused persons
of their possible rights to receive free legal aid. We
recommend that all accused persons should be given
a document stating in simple terms the brief facts about
the legal aid to which Defendants are entitled.
This document should include information about the
method of application and of obtaining a solicitor;
It should be handed to the accused by the person
charging him on the occasion of the charge being put;
and the recipient should sign a receipt for it and for
the copy of the charge or charges which he is entitled
to be given also;
In the case of a summons, the document giving
details of the legal aid facilities should be served with
the summons. This information should be repeated
when and if necessary;
It should ultimately be the duty of the Clerk or
Registrar of the appropriate Court to inquire if, and
ascertain that, the Defendant has the legal aid he
requires and is entitled to;
This inquiry should be repeated at the end of pro-
ceedings involving committal for trial or sentence.
A Notice containing the information suggested should
be prominently displayed in all Garda stations in a
place where they are most likely to be seen by accused
persons and in all Court Houses.
Accordingly, we are forced to the conclusion that
the present system of legal aid does not operate to
secure or vindicate the legal and constitutional rights
of poor persons involved in the criminal process.
Neither does it permit of either branch of the pro-
fession fulfilling it's professional duties to its clients.
We believe that to be workable the Act and regul-
ations require fundamental overhaul. Fresh and basic-
ally rethought legislation is clearly indicated.
The changes which we have indicated as being in our
view essential would undoubtedly cost somewhat more
than the present system — but the present system is
incapable of functioning and is undoubtedly having
a baneful effect on both branches of the profession
and on the development of the rule of law at a time
when the rule of law must be carefully nurtured. We
consider that the cost of an effective system would not
be great and would be money well spent. We believe
that the country can neither afford to continue to
present system or be without a proper one.
'God blessed be, the amending Hand'.
—Coke (being the final
word of the Institutes.
123