The Gazette 1975

REPORT ON CRIMINAL LEGAL AID

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 94

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 6 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; (c) to defend himself in person or through legal 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