The Gazette 1975

'S decided to prefer charges against him. At this stage we believe that a person about to be charged should J 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 ,J 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 a 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 ls 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 ° n points of law arising in the course of penal pro- c 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. 3 - We consider that the terms of "gravity of the c harg e " and "exceptional circumstances" in Section 2 ? f toe 1962 Act and "serious nature of the offence" * n 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 | e to result in the loss of livelihood should auto- m atically entitle a needy person to legal aid. In addition a discretion should be left with the Court to award e gal aid in any other case where the Court is of °Pmion that the interests of justice so require and in C * Se °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 or 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 122