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.

Daly on Carmody

We are delighted to welcome this guest post from Paul Daly of the University of Cambridge to our Symposium on Carmody. You can learn about Paul on the guest contributors page.

No Solicitors on Escalators: Some Thoughts on Statutory Interpretation and Carmody

I intend to take full advantage of the blog format and roam fairly widely here, possibly beyond the traditional confines of a peer-reviewed journal. In this post I will examine section 2 of the European Convention on Human Rights Act 2003 (2003 Act), in the light of Carmody’s case. In doing so, I want to compare and contrast the situation in Ireland with that in Britain – the equivalent provision ‘across the water’ is section 3 of the Human Rights Act 1998 (HRA). My reason for wanting to do so is that a thought experiment which addresses how the UK Supreme Court would have dealt with the issues in Carmody can highlight important aspects of the Irish legislation. I will then conclude by offering some thoughts on statutory interpretation; I intend there to be deliberately provocative.

To being with, it is worth highlighting the rather strange outcome to the case. In response to Carmody’s submission that a failure to allow for the provision of counsel to represent indigent defendants in the District Court breached his right to a trial in due course of law, the Supreme Court held that:

“In order to vindicate the constitutional right of an indigent defendant in the District Court to a fair trial he or she must be entitled to legal aid with representation by counsel as well as solicitor where it is established that because of the particular gravity and complexity of the case or other exceptional circumstances such representation is essential in the interests of justice. It follows that any such defendant must have a right to apply for such legal aid and have the application determined on its merits”.

But the legislation was not struck down:

“There is nothing in the provisions of the Act of 1962, and in particular in s. 2(1), which could be said to prohibit or create an obstacle to the introduction by the State of procedures or means which would enable a defendant in a criminal prosecution before the District Court to apply for legal aid which could, in particular circumstances, include representation by counsel”.

Instead, the Court issued a declaratory judgment to the effect that putting Carmody on trial without allowing him the opportunity to apply for representation by counsel would breach his right to a trial in due course of law. Accompanying the declaration was an order of prohibition preventing any prosecution from proceeding before Carmody could apply for legal aid to retain counsel. Allied to the Court’s decision on the order in which constitutional and Convention claims would be dealt with (rendering a declaration of incompatibility unnecessary) these remedies disposed of the case. What happens next is anybody’s guess: the Oireachtas could pass amending legislation, or the Minister could institute some sort of executive scheme. Until then, Carmody won’t be standing trial for the alleged breach of various cattle regulations. However, if Carmody had posed the same question that he did to the Irish Supreme Court to the United Kingdom equivalent, it probably would have been answered very differently.

de Londras on Carmody

My interest in the Supreme Court’s decision in Carmody is primarily on the sequencing decision as between the Constitutional and ECHR claims forwarded by Carmody himself. He claimed that the apparent lack of capacity under s 2 of the Criminal Justice (Legal Aid) Act 1962 for the District Court to certify appointment of a barrister was a breach of both Article 6 of the Convention (right to a fair trial) and the due process/fair trial rights under the Irish Constitution. In the end, as we know, the Court focused on the Constitutional arguments but this was done following a consideration by the Chief Justice of the appropriate order in which these arguments ought to be considered.

The questioning of sequencing as between Constitutional and Convention arguments is not new to Carmody. Prior to the Supreme Court’s decision in this case there were conflicting authorities on the appropriate sequencing to be adopted. These questions arise where, as in Carmody, a Declaration of Inconsistency is sought under s 5 of the ECHR Act 2003. Section 5(1) provides:

In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as ‘‘a declaration of incompatibility’’) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.

Sequencing decisions are important, in my mind, because of the importance of the doctrine of constitutional avoidance (sometimes termed ‘constitutional self-restraint). It is well established that, in general, Courts will not consider the constitutionality of an impugned measure unless such a consideration is necessary simply because where an enactment is deemed unconstitutional a gap in the law is created which can cause significant difficulties in practical terms (The State (P Woods) v AG [1969] IR 385). In short, the rule of constitutional avoidance holds that constitutional matters that are raised before the Court should be considered only if the non-constitutional arguments had first been taken account of and the dispute could not be resolved on the basis of such arguments (Murphy v. Roche [1987] IR 106). This docrtine of constitutional avoidance is not, however, an absolute principle in Irish law. As early as M v An Bord Uchtála [1977] IR 287 the Court accepted that “there may be circumstances of an exceptional nature where the requirements of justice and the protection of constitutional rights make the larger enquiry necessary”. Section 5 applications call for such a determination.

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.

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.