The Gazette 1975

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.

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