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.

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

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.

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