The Gazette 1975

(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* 121