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Conviction quashed where young person of limited education did not have legal representation at trial

By: Mark Tottenham BL

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Supreme Court allows, in part, an appeal from the High Court, and quashes a conviction of a young person on a charge of larceny, where the young person had limited education, had been granted legal aid, but his solicitor did not appear at trial, on the grounds that: (a) the Constitution provided for trial in due course of law; (b) although the right to legal aid was not express in the Constitution, the provision of legal aid was in furtherance of a right to legal representation for persons of limited means; (c) where a person was of limited education, it was essential that they be informed of their right to legal aid; and (d) where a solicitor failed to appear at trial in such circumstances, the court should grant an adjournment unless there were very good reasons not to do so.

O'Higgins CJ (nem diss): Criminal law - charge of breaking and entering - plea of guilty - opportunity to pay compensation - departure to England - warrant for arrest - sentence to detention in children's institution - no legal aid - not informed of right to legal aid - s. 2 of the Criminal Justice (Legal Aid) Act, 1962 - separate charge of stealing and causing malicious damage to motor car - grant of legal aid - no solicitor appearing for accused - sentence imposed notwithstanding - conditional orders of certiorari and habeas corpus - rights of accused persons - young persons of limited education facing serious charges - Articles 38 and 40, ss. 3 and 4, of the Constitution - Article 6, para. 3(c), of the European Convention on Human Rights - whether right to legal aid was a constitutional right.

"The preamble to the Constitution records that the people "seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution." In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.
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It is justice which is to be administered in the Courts and this concept of justice must import not only fairness, and fair procedures, but also regard to the dignity of the individual. No court under the Constitution has jurisdiction to act contrary to justice.
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The general view of what is fair and proper in relation to criminal trials has always been the subject of change and development. Rules of evidence and rules of procedure gradually evolved as notions of fairness developed. The right to speak and to give evidence, and the right to be represented by a lawyer of one's choice were recognised gradually. To-day many people would be horrified to learn how far it was necessary to travel in order to create a balance between the accuser and the accused. If the right to be represented is now an acknowledged right of an accused person, justice requires something more when, because of a lack of means, a person facing a serious criminal charge cannot provide a lawyer for his own defence.
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Under the Act of 1962 provision is made, both in the District Court and in relation to persons returned for trial on indictment, for legal aid where the person's means are insufficient to enable him to obtain such aid himself. Such aid is granted where "it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence." To the extent that this Act provides for legal aid, it discharges what I consider to be the constitutional duty imposed on the State.
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However, if a person who is ignorant of his right fails to apply and on that account is not given legal aid then, in my view, his constitutional right is violated. For this reason it seems to me that when a person faces a possible prison sentence and has no lawyer, and cannot provide for one, he ought to be informed of his right to legal aid. If the person charged does not know of his right, he cannot exercise it; if he cannot exercise it, his right is violated.
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On the 30th December, 1974, Foran and Healy were granted certificates for legal aid under the Act of 1962 in respect of criminal charges before District Justice O'Reilly. By reason of difficulties then existing in the operation of the legal-aid scheme by solicitors, no solicitor appeared for them. On the 29th January, 1975, while unrepresented by a solicitor each of these accused was sentenced to a term of detention in St. Patrick's Institution. In my view the convictions and sentences then pronounced were in violation of the constitutional rights of both accused to have what justice required, i.e., a lawyer to speak for and to defend them. For this reason, in my view, these convictions and sentences cannot stand."

Henchy J (concurring): Criminal trial in due course of law - personal rights of the citizen - deprivation of liberty - right to legal aid - right to representation - duty on District Court to give effect to statutory legal aid provisions.

"A person who has been convicted and deprived of his liberty as a result of a prosecution which, because of his poverty, he has had to bear without legal aid has reason to complain that he has been meted out less than his constitutional due. This is particularly true if the absence of legal aid is compounded by factors such as a grave or complex charge; or ignorance, illiteracy, immaturity or other conditions rendering the accused incompetent to cope properly with the prosecution; or an inability, because of detentional restraint, to find and produce witnesses; or simply the fumbling incompetence that may occur when an accused is precipitated into the public glare and alien complexity of courtroom procedures, and is confronted with the might of a prosecution backed by the State. As the law stands, a legal-aid certificate is the shield provided against such an unjust attack."

Griffin J (concurring): Fairness in criminal trials - lack of legal aid prior to Criminal Justice (Legal Aid) Act, 1962 - failure of solicitor to appear - refusal to adjourn proceedings.

"I fully accept that a stage may be reached in which the District Justice would be entitled to refuse an adjournment and to require a case to proceed. In this case, however, the District Justice entered on the hearing of the charges in the absence of the solicitor who had been assigned to the prosecutors under the Act of 1962, although the Justice had already made a judicial finding that, by reason of the gravity of the charges and of the fact that the means of each of the prosecutors were insufficient to enable him to obtain legal aid. It was essential in the interests of justice that they should have legal aid in the preparation and conduct of their defence."

Kenny J (concurring): Educational level of accused person - lack of legal assistance - grant of legal aid - failure of solicitor to appear.

" am aware of the problems which have arisen in connection with legal aid but, despite those problems, when the solicitor assigned does not attend the District Justice should adjourn the hearing of the charge in every case, unless he is satisfied that the accused clearly consents to the case proceeding in the absence of the solicitor assigned. This may result in congestion of the lists and bringing witnesses back on another day but this is not as important as the right of the accused to a fair trial. Speedy or summary justice is often injustice. The decision of the District Justice in these cases to proceed with the hearing in the absence of the solicitor assigned was such an irregularity that the accused did not get a fair trial. Accordingly, I think that the orders made against the prosecutors on the 29th January, 1975, should be quashed."

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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