Blackwell on Carmody

We are delighted to welcome this guest post as part of our Symposium on Carmody from Noeline Blackwell, Director of FLAC. You can learn some more about Noeline on our Guest Contributors page. (photo credit)

The examination in Carmody related to the extent of legal aid in criminal law proceedings and to that end, did not at all help answer the vexing question of what is needed to give a person the court representation they require to vindicate their rights in matters other than criminal law. However, it did turn a spotlight on certain elements of a fair hearing which are helpful in guiding those charged before our courts on the right to representation and public funding in modern day cases.

The question of the complexity of the case was central to the application by Mr. Carmody’s solicitor Mr. Mannix to ask for representation by solicitor and barrister and was an important element in the judgment. In ruling in his favour,  the Supreme Court had to take account of the fact that 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. In addition of course the nature and volume of crime has changed dramatically over the decades. For example dealing in and supplying illicit drugs was virtually unknown in the 1960s. Successive statutes, apart from amending legislation governing long standing criminal offences, have created new ones. The offence of possession of child pornography, which may in certain circumstances be tried summarily, is an example. As a result of all these developments the District Court’s criminal jurisdiction has grown enormously.

The case reminds us of the serious consequences for people who have to appear in the District Court. Because of the numbers of people who go through that lowest level of the court system every year (550,694 cases disposed of in 2008), we can forget that the consequences for people can be very serious indeed. People can be jailed for an offence, or even for not paying a debt. People can lose their means of livelihood if it depends on a court licence. The District Court can assist in ending discrimination against a person. A person’s reputation can (as the court noted) be seriously damaged. The penalties can be serious – 11,747 sentenced to imprisonment – but also the charges can be serious and complex.

Taking all of this into account, the Chief Justice said:

“The Court reiterates the view that the principles of constitutional justice require that a person who is charged with an offence before the District Court and who does not have the means to pay for legal representation be provided by the State with legal representation that is necessary to enable him or her to prepare and conduct the defence to the charge. 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 including the applicable law and any exceptional circumstances.”

While the Carmody case was a criminal law case, and while its line of analysis was from a line of criminal law cases, this statement would form a good argument for anybody seeking access to justice through the courts in any case. While our Supreme Court clearly sees a distinction in constitutional terms between a case where someone can be imprisoned and any other issue, FLAC comes across people all the time who need adequate representation to defend themselves in situations which, for them, are at least as important. The parent accused of abduction in a complex Hague Convention custody hearing (where one side is always legally aided if they want it) or the employee desperately trying to save a job by proving indirect discrimination under EU regulations and case law, the tenant about to be evicted from their local authority home – all of them have matters that are at least as urgent and crucial to them as those facing imprisonment, yet under the rules of the current scheme they are or may be excluded from civil legal aid.

Coming back to the case under discussion, Carmody also looked briefly at the question of “equality of arms”. In this case, the State had a barrister and solicitor. That is often the case. Were we to take it that if they had 2 lawyers, that a defendant was also entitled to representation? No. The Chief Justice said that equality of arms was only one aspect of the right of a defendant to a fair and just hearing and warned that:

“[I]t might also be noted that that Court has not found that simple parity of representation is required by the principle of “equality of arms”. In general terms the principle or notion of equality of arms means that neither party in criminal trials should be procedurally disadvantaged as compared to the other party”

If equal representation is not to be an overarching deciding factor, then the Carmody judgment may result in little practical change in the District Courts. As all the lawyers in the case – both judging and representing the parties – agreed, solicitors will for the most part be perfectly comfortable in providing full representation. They will have the capacity even in complex cases to do so. It was the size as well as the complexity of the case against Carmody and the need for background research and preparation that alerted his solicitor to the need to engage counsel. He considered this case to raise points which were unusual and exceptional in comparison to the generality of prosecutions in the District Court. If this case is to be guidance for the judiciary, then it seems that solicitors will have to establish the exceptional nature of cases in order to convince the court to certify for counsel. It is interesting to see that the court did not actually say that Mr. Carmody should be certified for representation by a barrister as well as a solicitor, just that it was possible that a person could be.

I am a bit puzzled as to what needs to happen next to implement the Carmody Judgment. The court found that S.2 of the Criminal Justice Act 1962 which says that a person can only be assigned a solicitor in most cases, is not unconstitutional. However, it found that the State has not put in place a mechanism to implement the right of a person to a barrister where that is necessary to prevent injustice. Is the implication then that new legislation is needed to fill the gap? Or a new ad hoc scheme? The Minister for Justice Equality & Law Reform has warned that he proposes new legislation soon to put further restrictions on criminal legal aid. Will he wait for that legislation to fill the gap? In the meantime, on a very practical level, if a judge awards representation in the District Court by a solicitor and barrister, how will the barrister be paid? There are certainly no public answers to these questions yet.

It was also interesting to see that the Court recognises the role that the courts play in protecting and promoting human and fundamental rights. In looking back over the short history of criminal legal aid, the Chief Justice cited the 1962 Act as the “first tentative but meaningful step in the provision of legal aid” for poor persons. He went on to say

“Up to that time no case had been brought before our courts seeking to assert a constitutional right to legal aid in criminal cases and for once an initiative in the field of justice involving public expenditure for the protection of the rights of citizens, in this instance those who had little or no means, was taken without being forced upon the State by a decision of our courts”

And finally, for all those who try valiantly to explain the difference between being a barrister and solicitor – and for us solicitors who have to deal with the question of how long you have to be a solicitor before you can become a barrister – the Chief Justice’s explanation – though too long to give at a party – may be helpful:

“… there are solicitors who are or have been skilled advocates in criminal trials before a judge and jury, having devoted much of their professional practice developing those skills just as there are or have been barristers who do not profess to have full professional skills in advocacy having specialised exclusively in non court work such as conveyancing but these are very much in a minority in both professions and an exception to the general rule. In general the nature of a solicitor’s professional practice is such that he or she is committed to working on behalf of clients principally in their offices, a professional practice which they could not maintain if they were to prepare for and appear in jury trial courts with regularity. Most of the legal services required by most clients can be fully provided by a solicitor. When a client needs, exceptionally, for the purpose of legal representation or advice, the professional advice or representation of a barrister, the solicitor has at his disposal an ad hoc “partner” so to speak who can be briefed according to that barrister’s general or specialised skills that best serves the particular needs of the client on a particular matter.”

That’s a neat explanation Chief Justice. Thank you.