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.

Proposed Changes to the Criminal Legal Aid Scheme

In the last week, Irish newspapers (Irish Times (here, here, here and here) and Irish Independent, here) have reported on potential cuts to the scheme of criminal legal aid. The rationale for these cuts is to curb the escalating costs of criminal legal aid. The proposed plan, under a new Criminal Legal Aid Bill, aims to allow Gardaí have access to a defendant’s Personal Public Service Number to ensure that he or she does not have the means to employ his or her own solicitor. The Free Legal Advice Centres (FLAC) have stated that any changes to the criminal legal aid scheme should preserve the right to “real and effective justice”. FLAC have warned the Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern T.D. that changes should not lead to an ineffective and bureaucratic administration of the scheme of criminal legal aid.  The main opposition party in Dáil Eireann (the Irish lower house of parliament), Fine Gael, have welcomed the move. Writing in the Irish Times, the legal affairs editor, Carol Coulter, has warned that the savings achieved will “not produce a pot of gold”. Ms. Coulter notes that the vast majority of recipients’ of criminal legal aid are social welfare claimants, and the introduction of new means tests within this sphere may in fact lead to delays in the administration of justice.

Questions do arise as to the extent to which it may interfere with a right to a fair trial. Article 6(3)(c) of the European Convention on Human Rights provides that a person who does not have sufficient means to pay for legal assistance, should be provided with such assistance “when the interests of justice so require”. 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/her opponent (Dombo Beheer v Netherlands, para. 33).

The new proposals may also result in the delay of criminal trials, given that judicial reviews of a District Court judge’s decision to not grant legal aid may be brought by the defendant. The ECtHR will assess whether the delay is reasonable having regard to the complexity of the case, the conduct of the applicant and the relevant State authorities and the importance of what was at stake for the applicant in the litigation (see, Barry v Ireland, para. 36). It is therefore not beyond the realms of possibility that due to protracted litigation relating to the right of a defendant to be granted criminal aid, breaches of Article 6(3)(c) could not be ruled out. In relation to delay, (although not dealing in any respects with the right to criminal legal aid), the Irish Supreme Court in McFarlane v Director of Public Prosecutions [2008] IESC 7 (05 March 2008) held that there was no violation of Article 6 ECHR, where a delay of six years and four months in attempts to start the prosecution.  The defendant had taken judicial review proceedings in an attempt to prevent the prosecution. Mr. Justice Kearns noted that there was no blameworthy prosecutorial or systemic delay in the case.

It remains to be seen whether this proposal will become law, and whether this will result in delays in the prosecution of alleged offences.