Carmody-v-Minister for Justice, Equality and Law Reform
Supreme Court
Judgment was given on October 23rd by the Chief Justice, Mr Justice Murray, Mrs Justice Denham, Mr Justice Hardiman, Mr Justice Geoghegan and Mr Justice Fennelly concurring
Judgment
In exceptional circumstances, and where the issues are particularly grave or complex, a defendant appearing before the District Court has a constitutional right to seek legal aid which includes counsel as well as a solicitor.
Background
The case was brought by Edward Carmody, a farmer who was charged in the District Court with 42 offences, all arising from various regulations intended to protect cattle from brucellosis, and relating to the wrongful movement of cattle, and failure to keep a register or identity card in relation to certain cattle. The maximum penalties, if imposed consecutively, could amount to two years in prison and fines of up to the euro equivalent of £2,500.
When he appeared in the District Court he sought legal aid and was granted representation by Joseph Mannix, practising in Tralee, a solicitor of 26 years’ experience.
Mr Mannix told the court he would be seeking legal aid, including counsel, and would take High Court proceedings, seeking a declaration that section 2 of the 1962 Criminal Justice (Legal Aid) Act was unconstitutional, if denied the assistance of counsel. The appellant also sought a declaration that such a refusal was incompatible with the European Convention on Human Rights. The Irish Human Rights Commission appeared as amicus curiae.
The High Court heard evidence that in such cases the Minister for Agriculture had a panel of barristers from which counsel is assigned to prosecute cases of this kind, and generally did retain counsel in such cases.
The High Court judge found that, while these kinds of prosecutions were more complex than the generality of District Court cases, a finding that a qualified solicitor could not adequately defend an accused person was not justified by the evidence. A declaration that the section was incompatible with the Constitution was refused, as was a declaration that it was incompatible with the State’s obligations under the ECHR. Mr Carmody then appealed this decision to the Supreme Court.
Mr Justice Murray said that the remedy under the 2003 Act (incorporating the Convention) was both limited and sui generis, and did not provide any direct or enforceable judicial remedy. Therefore, a declaration of incompatibility would not resolve the issues between the parties, and the constitutional issue should be considered first.
Decision
He reviewed the history of the development of criminal legal aid in Ireland, pointing out that it was a constitutional right. The assumption was that in all trials before the Circuit Court or the Central Criminal Court an accused would be represented by solicitor and counsel, and in some instances by two counsel.
District Court cases are heard in a local court and are, in the main, short cases. They are in general less complex and there is less at stake. There were, however, many criminal cases coming before this court which were serious and complex.
The question was whether, in all cases where there was a confluence of the gravity of the charges and particular complexity or other factors, representation by a solicitor was sufficient to meet the constitutional right to legal aid, he said. The Act did not provide for the possibility of legal aid being granted to include counsel, irrespective of the circumstances.
The legal environment in which the District Court exercises its criminal jurisdiction has changed a lot since 1962, Mr Justice Murray said. This included increasing the aggregate time of imprisonment that could be imposed from one to two years, and the introduction of new offences, many of them arising out of the introduction of modern regulatory regimes and often emanating from EU legislation. In addition, dealing in and supplying illicit drugs was virtually unknown in the 1960s, as was the offence of possessing child pornography.
In this case the State had chosen to be represented by a solicitor and counsel. While “equality of arms” did not necessarily mean parity of representation, the fact that the State prosecutor was represented by both solicitor and counsel was a relevant factor.
“Having regard to the extremely wide scope and range of offences which come within the jurisdiction of the District Court in the field of criminal law, and the increased complexity of modern legislation and regulatory measures . . . the court is satisfied not only that the necessity in the interests of justice for a defendant to be represented by counsel as well as solicitor cannot be excluded, but that cases, however infrequently that may be, will inevitably arise where it would be essential that an indigent defendant be afforded such legal aid,” he said.
Thus, in order to vindicate the constitutional right to a fair trial, a defendant must be entitled to legal aid with both solicitor and counsel, where it was established “that because of the particular gravity and complexity of the case or other exceptional circumstances, such representation was essential in the interests of justice”.
He pointed out that the State rarely raises any objection to legal aid in the District Court at the time of initial application, or subsequently, concerning the means of a defendant to pay for his or her own defence.
It would probably continue to be the case that legal aid would generally still be granted for a solicitor only, even when a case was grave or complex. It would be a question of judgment for each District Court judge, he said.
Mr Justice Murray said there was nothing in the 1962 Act to prohibit the introduction by the State of procedures whereby a defendant could apply for legal aid including, in particular circumstances, counsel. Therefore the Act was not unconstitutional. The absence of a right to apply for legal aid, including counsel, stemmed from a failure of the State to make specific provision for it. The court had a right to grant such remedy as it considered necessary to vindicate the right concerned, and in this case that would be a declaration that the appellant had a constitutional right to apply, prior to being tried, for legal aid in the criminal proceedings brought against him in the District Court, and to have that application heard and decided on its merits. He also made an order prohibiting the prosecution from proceeding with the case until he was afforded that right. He said that, as the remedy satisfied the complaint, the question of considering the compatibility of the Act with the European Convention on Human Rights did not arise.
The full judgment is on www.courts.ie
Michael Counihan SC, Michael O’Higgins SC and Rory White BL, instructed by Joseph Mannix, Tralee, for the appellant; James Connolly SC and David Barniville SC, instructed by the Chief State Solicitor, for the respondent; Patrick Gageby SC and Tony McGillicuddy BL, instructed by the Irish Human Rights Commission, which appeared as amicus curiae