In an important judgment expanding the constitutional right to legal aid for persons facing trial in the District Court for serious criminal offences, the Supreme Court has ruled 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 today upheld claims by Edward Carmody, a Co Kerry farmer charged with 42 offences related to alleged wrongful movement of cattle, he has a constitutional right prior to trial to apply for legal aid to include representation by a barrister as well as 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 extremely 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 both 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.
The Chief Justice 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 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.
