The Gazette 1975

REPORT ON CRIMINAL LEGAL AID

Article 6 of the European Convention on Human

Rights (which was signed on behalf of the people of

Ireland on the 4th November 1930 and ratified by the

Oireachtas on the 25th February 1953) provides as

follows:-

Artic.lc

1. In the determination of . . . any charge against

him, everyone is entitled to a fair and public bearing

within a reasonable time by an independent and im-

partial tribunal established by law.

2. Everyone charged with a criminal ofTcnce shall

be presumed innocent until proved guilty according

to law.

3. Everyone charged with a criminal offence lias the

following minimum rights:

(a. to be informed promptly and in language which

be understands and in detail, of the n a t u re and cause

of the accusation against him;

(b) to have adequate time and facilities for the

preparation of bis defence;

assistance of his own choosing or, if he has not sufficient

means to pay for legal assistance, to be given it free

where the interests of justice so require;

(d) to examine and have examined witnesses against

him and to obtain the attendance and examination of

witnesses on bis behalf under the same conditions a.;

witnesses against him;

(e) to have the free assistance of an interpreter if he

cannot understand or speak the language used in Court.

At the date of ratification the domestic law of Ireland

appeared to secure all of the foregoing minimum right*

with the exception of those set out at 3(c) and under-

lined and 3(d) of Article 6 above set out.

The Criminal Justiec (Legal Aid) Act 1962

For the purpose of supplying the deficiency and

bringing the domestic law of Ireland into accord with

Our treaty obligations the Criminal Justice (Legal Aid)

A<:t 1962 was enacted by the Oireachtas.

The Act was brought into operation by Statutory

Instrument no. 13 of 1965 and a scale of fees and

•yslein of regulation was provided by"Statutory Instru-

ment no. 12 of 1965. The system of Legal Aid in

Criminal Cases came into operation as and from the

1st April 1965. The regulations and scale of fees were

•mended by Statutory Instrument no. 240 of 1970.

There are indications that in drafting the legislation

ich became the Act of 1967 the Department of

' stice was more concerned to have on the statute book

Act which could be pointed to as a compliance with

PART I

the European Convention than to establish a system

of Legal Aid which was best calculated to fulfil the

needs of those likely to be compelled to avail of it, or to

facilitate legal practitioners charged with implementing

the scheme for the protection of the needy charged with

criminal offences.

As far as we have been able to ascertain no prior

consultations were held with any of the likely interested

parties or their representatives. There is no indication

that either the prison welfare services, social workers

or anv other party who might have been able to speak

on behalf of the needy were consulted and it is certain

that neither branch of the profession was given an

opportunity to express views on the proposed legislation

or regulations. Indeed at the commencement of the

scheme it appears that no appropriation had been

made to meet it's cost. In the first years of its

operation at least, it was proposed by the Department

of Justice to finance the operation of the scheme out

of the residues of funds voted by the Dai] to the De-

partmen' of Justicc for totally other purposes.

In these circumstances the two branches of the

profession were asked by the then Minister for Justice,

Mr. Lenihan to implement the scheme for a limited

experimental period. There was a clear undertaking

bv the then Minister that the working of the scheme

and in particular remuneration of the profession under

it would he reviewed after a specified period. There

is disagreement between the Minister's advisers and

the representatives of the Bar as to whether the experi-

mental period was to he of two or four years. However,

the profession agreed to attempt to work the schcmc

and the 'experimental' period began.

Since the commencement o( the scheme there have

been occasional meetings between delegations from the

Bar Council and successive Ministers for Justice, con-

cerned exclusively, it appears, with improving the

remuneration of barristers attempting to work - the

scheme. Minor increases in fees were conceded in

1970, not, regrettably, as a result of any meaningful

negotiations or understanding of the difficulties being

experienced by the profession in attempting to work

the scheme but on a 'take-it-or-leave-it' basis pre-

determined by the Minister and his advisers.

In early December 1974 the Bar Council decided

that after an 'experimental' period of approximately

eight and a half years the time was overdue for an

examination in some depth of the Legal Aid scheme and

the svstem and scale of payment in the light of experi-

ence to date. A delegation from the Bar Council was

received by the present Minister for Justice, Mr.

Coonev, in November 1974. At that meeting the

members of the delegation indicated to the Minister