Thornton on Carmody

The Supreme Court decision in Carmody, did not examine the merits of the case vis-à-vis the European Convention on Human Rights Act 2003 (ECHR Act 2003). The only European Court of Human Rights (ECtHR) case mentioned by the Supreme Court was that of Steel & Morris v. United Kingdom [2005] 41 EHRR 22. Murray C.J. noted that the obligation under Article 6(3) of the Convention was not parity of representation or equality of arms for those facing trial on criminal charges. The obligation is to ensure that parties to a case can “…adduce their evidence and test their opponent’s evidence in circumstances of reasonable equality” [arguments of the applicants in Steel & Morris, para. 50]. However, the Supreme Court  focused on the constitutional right to a fair trial and why this was violated in the particular case at hand. It would have been welcome, if the Supreme Court had commented on whether, in this particular case, the constitutional obligations of Ireland were the same as, or differed from, the obligations of the state under the ECHR Act 2003.

Article 6(3)(c) ECHR guarantees the right of a person charged with a criminal offence to “…defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to  be given it free when the interests of justice so require.”  When ratifying the ECHR, Ireland made a reservation (which is still in force) to Article 6(3)(c), limiting obligations to provide “free legal assistance to any wider extent than is now provided in Ireland.” At that time (1953), free legal assistance in criminal law was available solely in capital and murder cases.

More substantive examination of Convention rights was provided in the High Court judgment. Ms. Justice Laffoy examined in some detail, whether the Irish scheme of criminal legal aid (Section 2, Criminal Justice (Legal Aid) Act 1962) was compatible with ECHR obligations, under Article 6 alone or in conjunction with Article 14 of the Convention. Ms. Justice Laffoy also examined the incompatibility of the criminal legal aid provisions with the ECHR and the Irish Constitution in tandem. Interestingly, neither party in the case made reference to Ireland’s 1953 reservation to the Article 6(3) ECHR.

Mr. Carmody had argued that Article 6(3) was violated, due to the failure to provide him with a solicitor and barrister, where the State had access to this and did not respect the principle of equality of arms. Ms. Justice Laffoy concentrated on ECtHR cases which dealt with the ineffectiveness of legal representation, due to time restraints on counsel (Goddi v Italy [1984] ECHR 4) and problems with a legal representative’s competence (Imbrioscia v Switzerland [1993] ECHR 56). The fact that Mr. Carmody had access to a solicitor (who himself stated that he needed instruction from counsel) did not, in Laffoy J’s opinion result in any a violation of Article 6(3).  After examining a number of ECHR cases on this issue (Neumister, Monnell and Morris, Borgers and Boner) the High Court found that there was no obligation under the ECHR to provide Mr. Carmody with both a solicitor and counsel.  The Supreme Court decision, while solely examining Irish constitutional protections, concluded differently. The Supreme Court noted the complexity of the case at hand and the absolute prohibition on appointing both a solicitor and counsel for a defendant at District Court level, and concluded that the interests of justice mandated both a solicitor and counsel to be made available to Mr. Carmody.

In addition, Mr. Carmody argued that Article 6, in conjunction with Article 14, would be violated, as he suffered discrimination in comparison with a wealthier individual who could have a solicitor and a barrister representing him. However, Laffoy J. stated that this does not amount to discrimination in the enjoyment of rights or freedoms under the ECHR.

In relation to equality of arms, the European Court of Human Rights (ECtHR) has decided that in criminal cases a defendant must not be placed at a substantial disadvantage vis-a-vis his or her opponent (Dombo Beheer v Netherlands, para. 33). Whether one side is placed at a significant disadvantage, will, in general be for national courts to decide within the margin of appreciation. The treatment of the facts in this case by the High Court and the Supreme Court could not have been more different. The High Court focused on individual cases, where decisions were made on the facts of the case from the ECtHR. Laffoy J. attempted to adduce overarching principles from ECtHR case law, even thought these decisions very much revolved around the facts of each particular case. The ECtHR has, in a large number of cases, stated that where legal aid is granted, it should be practical and effective legal assistance. The decision in the Supreme Court, which couched in constitutional language, basically came down to the question as to whether the legal assistance granted to Mr. Carmody was effective. It is clear from the Supreme Court ruling that issues of effectiveness were key to the judgment. The High Court, rather than focusing on individual facts of cases as presented to the ECtHR, could have focused on the need to ensure that rights to representation were “…practical and effective, rather than theoretical and illusory”. However, given that the ECtHR has not had to decide on a case such as Carmody before, it could have equally been argued that provision of a suitably qualified solicitor would have satisfied the state’s obligations under Article 6(3)(c). The argument that Irish constitutional rights and rights under the ECHR are similar, well very true for many rights protections, does highlight that in certain areas at least, there is a possibility that Irish constitutional rights protections are over and above rights protections under the ECHR. The decision of the Supreme Court seems more in line with the object and purpose of ECHR protection  rather than the specific conclusions reached on the ECHR’s ambit by the learned Ms. Justice Laffoy in the High Court.