IN A judgment expanding the constitutional right to legal aid for persons facing trial in the District Court for serious offences, the Supreme Court has ruled that a Co Kerry farmer is entitled to apply for legal aid to include a barrister as well as a solicitor.
The decision has implications for thousands of defendants.
Until now, unless charged with murder, persons facing trial in the District Court had no statutory right to legal representation to include a barrister but could only have legal aid via a solicitor.
The five-judge Supreme Court yesterday upheld claims by Edward Carmody, a Co Kerry farmer charged with 42 offences related to alleged wrongful movement of cattle, that he has a constitutional right prior to trial to apply for legal aid to include representation by a barrister in addition to a solicitor.
The court halted Mr Carmody’s trial until his application is determined, on its merits, by an appropriate court or body, with the State deciding the nature of that appropriate body.
The Chief Justice, Mr Justice John Murray, stressed the Supreme Court was not itself ruling whether or not Mr Carmondy is entitled to be represented by counsel.
The Chief Justice said the Supreme Court was satisfied – given the wide scope and range of criminal offences now before the District Courts and the increased complexity of modern legislation and regulatory measures – cases would arise where it would be essential a defendant of insufficient means should have a barrister as well as a solicitor.
He stressed the State was not required to provide an “optimum form of representation” sought by a defendant, only that essential to the interests of justice.
The right to a fair trial is a right of the prosecution and defendant, he said. The fact an accused’s defence could be effectively and fairly advanced was “essential for public confidence” in the system of trial and also gave victims confidence the true perpetrator of a crime was convicted.
In Mr Carmody’s case, the volume of the charges exposed him to a possible jail sentence. The legal representation provided must be that which is essential in the interests of justice having regard to the gravity of the charge, the complexity of the case involved and any exceptional circumstances.
The State, he noted, had engaged a barrister for the prosecution of Mr Carmody and the State generally engaged barristers for similar such prosecutions.
Mr Justice John Murray also ruled the absence of a right to apply for free legal aid to include a barrister arises from the State’s failure to make specific provision for such legal aid and was not the result of any provision or prohibition in section 2 of the Criminal Justice (Legal Aid) Act, 1962.
Given that finding, he rejected Mr Carmody’s claim that section 2 was unconstitutional. In those circumstances, he said it was unnecessary to rule whether the 1962 Act was compatible with the right to fair trial provisions of the European Convention on Human Rights.
The Supreme Court’s decision has implications for thousands of people facing criminal charges in the District Court. In 2008, the number of criminal cases disposed of summarily in the District Courts was 550,694 (some 65 per cent being road traffic offences).
The Chief Justice said the District Courts dealt in 2008 with 68,491 indictable offences. In the same year some 11,747 people were sentenced to detention or imprisonment in those courts.
Mr Justice John Murray said the figure for persons jailed indicated the seriousness of offences which may be tried in the District Court while other offences involving no jail term could result in serious reputational damage.
The District Courts also dealt, he added, with thousands of “relatively trivial” cases which did not merit the services of barristers.
In ruling in favour of Mr Carmody, the Supreme Court had to take account of the fact the legal environment has changed substantially since the 1962 Act was enacted, he said. Maximum consecutive jail terms for District Court offences had, for example, doubled to two years and a wide range of potentially complex new offences had been introduced in areas such as consumer and environmental law.
It was in all those circumstances the Supreme Court found a defendant of insufficient means facing trial on a criminal charge before the District Court has a constitutional right to apply for legal aid, including a barrister and solicitor and was entitled to have their application determined on its merits in the essential interests of justice.
