HRinI Blog Symposium on Carmody v Minister for Justice, Equality and Law Reform (2009)

Today on Human Rights in Ireland we are delighted to host our first Blog Symposium. Today’s symposium focuses on the Supreme Court’s recent decision in Carmody v Minister for Justice, Equality and Law Reform [2009] IESC 71.

In this case Carmody argued that the lack of a statutory or other right to free legal aid for representation by a barrister in the District Court was both unconstitutional and incompatible with the European Convention on Human Rights, pursuant to the ECHR Act 2003. The relevant statutory provision is s. 2, Criminal Justice (Legal Aid) Act 1962, which provides:

(1) “If it appears to the District Court –

(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and

(b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it, the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable.

As is clear from the terms of this section the only situation in which the statute permitted appointment of counsel by means of legal aid in the District Court was where the charge was one of murder and the Court thought it fit to appoint a barrister, and exception that was essentially redundant.

Although it did not find that s. 2 was unconstitutional. the Court held that “the denial of an opportunity to apply for and be granted, where appropriate” legal aid for the appointment of counsel in the District Court “is a denial of a constitutional right” and that “the appellant in this case cannot be tried unless and until he is afforded an opportunity to apply for legal aid to include solicitor and counsel and have that application determined on its merits having regard to the considerations referred to in this judgment”.

In today’s symposium we present four different perspectives on this judgment, all focusing on different issues:

1. Noeline Blackwell, Director General of FLAC, writes here about the problems and puzzles presented by Carmody from a practical perspective
2. Liam Thornton of the University of Ulster and (of course) HRinI, writes here about the right to free legal aid as founded in the European Convention on Human Rights
3. Fiona de Londras of University College Dublin and (of course) HRinI writes here about the treatment of ECHR arguments in Carmody and, particularly, about the question of sequencing as between constitutional and Convention arguments
4. Paul Daly of the University of Cambridge (and currently visiting at Harvard) writes here about the potential for the Supreme Court to have used s. 2 of the ECHR Act 2003 [the interpretive section] in this case and hypothesises as to how the UK Supreme Court might have approached an analogous question.