Criminal Justice (Legal Aid) Bill, 1961—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The object of this Bill, as the Long Title indicates, is to make provision for the grant by the State of free legal aid to poor persons in certain criminal cases. At present free legal aid is provided by the State only in murder cases where the accused persons cannot afford to provide legal aid themselves but the practice has no statutory backing. It is proposed in this measure to allow accused persons of insufficient means legal aid in practically every kind of criminal proceedings in which they may find themselves involved. They may obtain it in the district court for summary offences or for indictable offences which are dealt with summarily with the consent of the accused. It will also be available for the preliminary investigation of an indictable offence in the district court as well as for the subsequent trial in the Circuit Criminal Court or the Central Criminal Court, as the case may be. Legal aid will be provided, too, in the case of appeals from each of these various courts, including appeals to the Supreme Court from the Court of Criminal Appeal; and there is provision for aid in proceedings by way of case stated and in appeals from a determination of the High Court on cases stated by district justices.

The grant of legal aid is in every case subject to the relevant court being satisfied that it is essential in the interests of justice that it should be provided and that the accused cannot afford it. Other limiting words are contained in the provisions dealing with proceedings before the various courts and, in general, the principle sought to be adopted is that aid should be provided only in serious cases, or in exceptional circumstances, where it would be essential in the interests of justice that the accused person should have free legal aid. The proposals in the Bill are therefore designed to help to prevent, as far as possible, genuine miscarriages of justice but not to allow legal aid to be granted in any general or indiscriminate fashion. There is a body of opinion in favour of allowing legal aid automatically to every poor person accused of an offence but this extreme point of view is unacceptable to the Government as a matter of principle and, in any event, the cost of providing such a service would be wholly excessive having regard to our limited resources and to the various calls there are upon them from other, and I think more deserving, classes of the community. The fact is that there is no evidence that injustice or hardship is being caused on any significant scale by the absence of free legal aid. The voluntary contribution made by both branches of the legal profession in undertaking without reward the defence of poor persons and the concern of the courts to ensure that an accused in not prejudiced in any way by the absence of legal representation have been largely responsible for bringing about that situation. However, the possibility of an innocent person being convicted because he cannot afford to pay for his defence or to obtain free the services of a lawyer still remains and is the justification for the present Bill.

Since the publication of the Bill I have been in consultation with the Bar Council and the Incorporated Law Society on the operation of the scheme and I have every confidence that it will be possible to work out satisfactory arrangements for its detailed operation and to have the full co-operation of these professional bodies in ensuring that we get the best possible value for the money to be spent on it. I share with both branches of the profession their concern that there shall be no diminution of standards in connection with the professional services to be provided to accused persons who are allowed legal aid. In the important matter of remuneration I am hopeful that it will be possible to prescribe professional fees which will be generally accepted as fair and reasonable in the circumstances. I expect that the members of the legal profession, as reasonable people, will accept something less than full scale fees having regard to the fact that they already have a tradition for giving their services free in deserving cases and also because the scheme is necessarily experimental and may cost the Exchequer, in the event, much more than anticipated.

I should like to emphasise the experimental character of this measure. There are a number of unknowns which combine to make it difficult to forecast to what extent the scheme will be availed of. I myself believe that the courts will behave with a proper sense of responsibility and ensure that legal aid is confined to really deserving cases—and in this belief the decision whether to allow free legal aid or not is being left exclusively to the judge or justice concerned. However, it is still the case that the scheme is breaking entirely new ground and it would be unwise, I think, to lay down the detailed arrangements for the operation of the scheme in any precise way in the Bill itself. The sensible thing to do is to leave these details to be provided for by regulations and to allow a period of one or two years to elapse and then have a general review of the scheme in the light of its actual operation during that period. In framing the initial regulations, we shall have the advantage of the precedents set by the schemes which have operated satisfactorily for a long time in Britain and in Northern Ireland.

I should like to say that there is no question of requiring an accused person to disclose his defence in connection with an application for the grant of legal aid. It will be a matter for the accused person entirely to decide whether or not he should do so. In fact, during the passage of the Bill in the Dáil I moved an amendment to make it clear that the trial judge could decide to grant legal aid on an application by the accused at any time during the trial so as to provide for what I would regard as a most exceptional case of its becoming evident to the trial judge at some stage of the trial that he ought to allow legal aid. However, I think that any judge would be entitled to expect, when asked to consider an application for free legal aid, some indication from an accused person of the reasons why it would be essential in the interests of justice that that aid should be provided. This would not apply, of course, in a case of murder where free legal aid will continue to be available to poor prisoners as of right but it should apply in all other cases where the grant of legal aid is not automatic. Otherwise, there might be a possibility of free legal aid being given to people where the facts are perfectly straightforward and no difficult question of law is involved and where it is clear to everyone that what the interests of justice require is that the accused person should be convicted and adequately punished with the minimum of delay. It has been well pointed out that miscarriages of justice can occur through the guilty escaping punishment no less than from the conviction of the innocent and I am afraid that miscarriages of the former kind occur far too frequently. The judges and justices can, as I have said already, be trusted to exercise the powers being given them by the Bill in a commonsense way which will take full account not only of the fundamental rights of accused persons but also of the need to avoid the grant of aid unnecessarily.

I hope that the Bill will commend itself to Senators as a measure of social reform which is long overdue and that the House will agree to give it a Second Reading.

On behalf of our Party, I welcome this Bill. In a general way I think it has been presented by the Minister as a social reform and as a move in the right direction. As such, I accept it and I congratulate the Minister on introducing it.

Some Bills come before the Oireachtas as contentious matters and have to be dealt with by politicians as such. Other Bills are not contentious. They come before the Dáil and the Seanad as pieces of legislation bringing about social reform and bringing our social system into line with modern social thinking. Those Bills are not contentious and should be approached by the Minister who presents them and by both Houses in an effort to make the best possible job and to ensure that the Bill, when it becomes an Act, will give effect to the intention of the Oireachtas. This is one of these Bills and I think we should approach it in that light.

It is true to say that this is the first time in which free legal aid as such has been given. It is also true to say that members of the legal profession saw to it in the past that necessitous poor persons charged with offences rarely were left without some legal assistance on the criminal side of the courts. I think it is true to say that on the civil side of the courts no person with an arguable case is left without legal assistance. I think, as the Minister has said in the Dáil, it is unreasonable to expect that that can continue—that the legal profession can be expected to continue to provide an adequate free legal service without any remuneration whatever. That is speaking in a general way.

If this free legal aid scheme is to be a success it must, first of all, have the confidence of the type of person it is intended to help, that is, the necessitous accused. It also must have the full co-operation of both branches of the legal profession. If it does not fulfil those two qualifications, then I feel it will not be successful. It is under those two headings and in a general way that I propose to deal with it.

I fear that there are a number of reasons why the Bill, as it stands at the moment, might not have the confidence of the necessitous accused. Irish people in general, I think, and people who might hope to avail of this Bill in particular, are very often suspicious of the law, suspicious of the people who administer the law, whether as a police force or as prosecutors or, indeed, as members of the judiciary. For that reason, we should be very careful to see to it that the accused person has no genuine reason why he should be suspicious of an offer of help from the State.

In the first place, it is stated in the Bill that one of the considerations which a circuit court judge who is asked to provide legal aid in an indictable offence shall take into account is the nature of the defence, if any, sought to be put forward. That is an undesirable provision in the Bill. It is established here down the years that, when a person is returned for trial before a judge and jury, he invariably reserves his defence and does not disclose his defence until the case opens before a judge and jury or, indeed, until it is necessary that he should do so to make his case. Any lawyer of any experience would advise an accused person that he would be very foolish to disclose his defence at an early stage.

I admit that the Minister is quite correct when he says there is no obligation on an accused person to disclose his defence in order to get free legal aid but it is stated in the Bill as one of the matters to be taken into account by a judge before giving legal aid. I think the Minister stated in the Dáil that the nature of the defence is a circumstance bearing on the matter. An accused person might think it necessary, or might think he had a better chance of getting legal aid, if he disclosed this defence. He might even be encouraged by some people to disclose his defence in order to get legal aid.

I know it is a recognised legal principle that it is not necessary for an accused to make a statement but how often do we hear it stated in court, at any rate in the district court, that when cautioned the accused made no statement? How often do we hear accused persons say that they were advised by a member of the Garda that if they made a statement things would be easier for them? I could see a situation arising where an accused person could be told "if you tell us what your defence is you will get legal aid and you will get off scot free". Therefore I am strongly against a provision in the Bill which suggests—I would not put it any stronger—or which invites the court to consider the defence, if any, being put forward before giving legal aid.

The Minister has stated that a judge may at any time give a certificate of free legal aid. I do not think that is a good point. I do not think that has any merit. If a trial starts before a judge and jury surely the judge is not going to suspend the trial to give the certificate for free legal aid and allow the accused person to instruct a solicitor and counsel? It might mean that the jury would have to be discharged or the trial adjourned for a week in order to give the solicitor and counsel, if there was one, an opportunity to prepare the defence. If the free legal aid is not given before the trial commences it will not be practicable to give it during the trial for the reasons I have stated.

There is another matter that is fundamental to the provision of free legal aid. From the discussions in the Dáil and indeed from the Bill, it is apparent that the accused person will not have a free choice of solicitor. I know the Minister has come some way in reply, I think it was to Deputy Sweetman, by saying that the first regulations would provide for the wishes of the accused person to be taken into account. I do not think that is sufficient. The accused person should be given a free choice of solicitor. That of course does not mean that he can obstruct the course of justice or obstruct the machinery of the court by being unreasonable. It means no such thing because what I say is a free choice will in effect be a limited choice but at any rate there will be some choice. The choice will be limited to a panel of solicitors attached to the court in question and who are prepared to act in free legal aid cases. First of all, it will be limited to that extent. It will be further limited to the members of that panel who are available at the time they are required and who are prepared to act. Surely that is only reasonable and I do not think any undue obstruction can arise as a result of giving the accused that selection.

As the Bill stands, the district justice or circuit court judge will be invited to make the choice. It is a choice which I do not think he should have to make. He will have to make a selection perhaps between some two or three solicitors sitting in court before him and he will have to say "I am giving you solicitor B instead of A or C who are also here and also willing to act. That will put the justice or judge in an invidious position. I would urge very strongly that unless the accused person is given free choice within the limits I have mentioned he could not be expected to have any confidence in the legal aid provided, and that in fact he will have no confidence. I can see the position arising where the accused person goes into court and he says "I want solicitor A to represent me" and for some reason or another the presiding justice in his wisdom will say "I am sorry, I will assign solicitor B" and solicitor B takes the accused person into an ante-room, he discusses the case with him and he advises the accused person to plead guilty. What on earth will that accused person think except that it is some sort of set-up between the prosecution and the bench in order to get him to plead guilty and get the case over? It would be an impossible position. Furthermore, if the accused wants solicitor A and does not get him but gets solicitor B and the case goes on and the accused is convicted then until his dying day he will be certain that if he had solicitor A, the man of his own choice, he would have been acquitted. The answer to that is of course that many people who employ a solicitor and perhaps pay him fairly well are not satisfied with him but they have nobody to blame but themselves.

They blame him.

They blame him for themselves.

They have only themselves to blame for having that solicitor.

They never think of that.

I speak from a not inconsiderable experience of the type of case and the type of person this Bill is introduced to facilitate. I believe that my colleagues in the Dáil who also spoke on it are men of considerable experience of this type of case, and perhaps other members of my profession will speak here too. Perhaps we have much more practical experience than the Minister or his immediate advisers because we have come up against this over a good number of years, in the rough and tumble of the district court and circuit court practice. I was interested to note that in Dáil Éireann members of the legal profession from both sides of the House seemed to be putting forward the same points of view. I honestly and sincerely say that views like that put forward on a non-contentious Bill like this should not be brushed aside lightly by the Minister or his advisers.

So much for free choice. There was another thing which I was slightly worried about in the Minister's opening speech in the Dáil. He seemed to say that of course this legal aid would not apply to the habitual criminal, that the State had no intention of facilitating the defence of the habitual criminal. First of all, it is rather difficult to define what a habitual criminal is. Does a person become a habitual criminal because he is charged once, twice, or three times? The thing that immediately struck me about it is that I cannot think of anybody who would require legal assistance more than the unfortunate person who had fallen foul of the law on a number of occasions, perhaps rightly, and then became suspect in the wrong, because the dice is loaded against him from the very word "go". That is the classical case where a great miscarriage of justice could take place, and indeed the most likely type of case. Therefore I appeal to the Minister not to have any preconceived idea that because a person was unfortunate enough to be convicted once or twice he was thereby an outlaw and would not benefit by this piece of social legislation. It is fundamentally wrong in the first place. It would be calculated to drive those people further against the law, to regard them as outcasts.

Another thing that strikes me in a general way from the point of view of the accused is that he has to make application for legal aid, as far as I can see, in open court. He has to go before the district justice or the circuit judge publicly and in the presence of the press and make his application for legal aid. He has to disclose his means, and to fill in a form that may be required by one of the later sections of the Bill in which he is invited to give particulars of his means. That is undesirable. I do not know whether this point has been raised elsewhere, but this is the type of application which should be heardin camera, or indeed, in a judge's chambers. If a man is branded as a pauper, so to speak, or a man of no means, his defence in a certain type of case might be prejudiced most materially. An essential factor in his innocence or guilt might be whether or not he was a man of means, and if he is presented before the jury as a man of no means, a man without sufficient means to employ a solicitor or counsel, then indeed the jury might take the view that he was the type of person who might commit the type of offence with which he is charged.

Apart from that I do not think that an innocent person—and we must presume that all these people are innocent until they have been convicted—should have to go into court before his neighbours and before the press and give particulars of his means and perhaps be cross-examined on it in order to get legal aid. I repeat that that should be done in chambers. Those are the reasons why I think the Bill might not be acceptable to accused persons.

Now I will deal with it very briefly from the point of view of the legal profession. The Minister has stated that in the past the solicitors' profession and the barristers' profession have been generous in aiding necessitous persons. That is all the more reason why this scheme should be operated in full co-operation with them. As the Minister knows, in other countries where this scheme has been introduced many years ago, as in England, the full administration of it has been handed over to the equivalent of our Incorporated Law Society. In England they will have a free legal aid scheme both on the criminal side and on the civil side of the courts. That is not being done here. We are having a scheme limited to the criminal side of the courts, and even limited within the criminal side. Furthermore, we are being given a Bill which will largely be operated through regulations to be made by the Minister. The Bill as presented is really in skeleton form and will be operated through regulations to be made under Section 10. If the scheme is to be a success it should be obligatory on the Minister to consult the Incorporated Law Society and the Bar Council before making these regulations. They are the people who will have to operate the scheme, and if it is not acceptable to them it is doomed to failure before ever it comes into existence.

I know that the Minister has already consulted both the Incorporated Law Society and the Bar Council, and he says that he intends to continue to do that. I accept that, but he is only doing it as a matter of grace. He could go to these professions and have a chat with them and go off ignoring what they say. If it was obligatory on him to consult the Incorporated Law Society and the Council of the Bar of Ireland it would be much more likely that they would get down to having a heart to heart chat about it and that what they said would be listened to. A much more desirable way of bringing these regulations into force would be to set up something in the nature of a Rules Making Committee. We have a Rules Making Committee for the District Court, the Circuit Court, the High Court and I think the Supreme Court. That is a body which is composed of representatives of the Department of Justice, the judiciary, the solicitors' profession and the Bar.

Not the Department of Justice.

I thought the Department of Justice was represented there. At any rate, it is composed of members of the solicitors' profession, the Bar and the judiciary. The Minister would be well advised to set up the type of committee of which I have spoken, representative of the Department of Justice, the solicitors' profession and the Bar, presided over by a member of the judiciary, or, when a question of fees or remuneration is involved, by one of the Taxing Masters of the High Court. That would be the ideal way of dealing with it, but if the Minister cannot see his way to go that far, he should write into the Bill in black and white for his own guidance, and the guidance of those who follow him, that these regulations are to be made only after consultation with the Incorporated Law Society and the Bar Council. If he does that there is a much better chance of the Bill being a success.

That is all I want to say in a general way. I sincerely hope the Minister will not take anything I have said as being ungrateful or ungracious. Anything I have said has been a genuine effort to help the Minister to make a success of this very worthy scheme which he proposes to put into force.

I should like to get some clarification from the Minister in regard to legal aid. On page 3 of the Bill, it is stated that a person "may apply for the certificate to the court", and on page 4 it is stated that "the court shall grant the certificate". If we look at paragraphs (i) and (ii) of subsection (3) of Section 4 it would appear that the court shall grant a certificate for free legal aid if "the conviction is of murder" or if—

it appears to the court that, by reason of the serious nature of the offence or of exceptional circumstances, it is essential in the interests of Justice that the convicted person should have legal aid in the preparation and conduct of an appeal.

Perhaps the Minister would clarify that, because it would appear to convey that the court may not grant a certificate on appeal even though it appeared to the court that the means of the person are such as to qualify him for free legal aid. That would convey that the offence must be of a serious nature, and that if it was a case that was regarded as a minor case, even though the person had no means to defend himself, a certificate would not be granted. I think the Minister should look at that. It is the court that decides on the granting of the certificate if this Bill is passed.

It should be sufficient that the person has not the means to obtain legal aid, and it should not be on the basis of the seriousness of the offence, because any offence is serious to the person who is charged even though it may not appear very serious to the court who would be granting the certificate, or to the members of the Seanad or the Dáil, or the public. It is serious to the person concerned and if he is in need of legal aid he should have it regardless of the offence with which he is charged. Otherwise he could be convicted, and conviction could be a serious matter for him. We should be consistent in a matter of this kind and it should not be on the basis of what is called a very serious offence—"by reason of the serious nature of the offence".

No light on a bicycle, for example.

There probably would not be an appeal in the case of an unlighted bicycle. Having no light on a bicycle is now a serious offence because of the congestion of traffic and because of the serious accidents which occur, but I have never heard of a case where, on conviction, a person decided to appeal to a higher court.

If there were free legal aid the Senator would hear of plenty.

That would probably be true if he could get free legal aid.

Probably not with the fees.

This again is where the Minister comes in. There are always means of dealing with abuses of privileges granted by the State, and if there are abuses in regard to free legal aid in the opinion of the Minister, or in the light of experience, he has the right to come back and have the legislation amended. Where are we to draw the line? The court in this case will draw the line and decide what is a serious offence. That is leaving it very open, and with all due respect to the legal profession and the learned judges, it is leaving it very open if they are to decide what is a serious offence. I should like to hear the Minister on that aspect of the case.

As matters stood, as the Minister has already said, heretofore poor people who had no means of defending themselves depended on the kindness and the sense of professional responsibility of the legal profession to defend them. Probably in these days that might appear to put some people at a disadvantage and a man, because he has no means, might feel: "Why should I be under a compliment to anyone? Why should I not be able to select any lawyer I like at the expense of the State and the community to which I belong, particularly if I am innocent? The State have to pay for my prosecution."

On the other hand, we must appreciate that there are many cases where the person who is accused of a crime is undoubtedly guilty even though found not guilty. He has already offended against society, and put society to the additional expense of prosecuting him, and now he is asking society to bear the expense of defending him. Therefore, I can quite appreciate the Minister's point of view when he says there must be certain limits to the expense to which the State is put in those cases, that the offence must be such that it is of a serious nature, and such that there would be a possibility of an injustice being done if the man were not provided with legal aid.

On behalf of the profession to which I belong I should like to congratulate the Minister on the introduction of this legislation, not because it takes any burden off our shoulders—as a profession that is a burden which we freely accept as our professional duty—but because it is a piece of social legislation for the common good and for the benefit of what one might call to a great extent the rag-tag and bobtail of our society, the unfortunate people who fall into crime and who belong to the lower strata of society and who cannot pay for their own defence. Those people belong to our society and if one of them is wrongly convicted it would be a grave offence on the part of our society. Therefore, I congratulate the Minister on the introduction of this legislation. I can quite appreciate that it is of an experimental nature and that, being of an experimental nature, it, perhaps, cannot contain or embody within itself many principles which should be embodied and which for the most part will have to be by way of regulation.

I feel, however, that there are certain principles in the Bill as it stands which we hoped the Minister would have put otherwise. I must say that with my colleague, Senator Fitzpatrick, I am in complete agreement on some of these. The section which I see can cause the greatest difficulty to our profession is the section which prevents the accused from fully and freely selecting his own lawyer. Any lawyer who has a sense of pride in his profession will feel that he does not wish to act for anyone if he is not the free choice of that person. When countries went over to Communism the first profession of whom the Communist Governments took control was the legal profession because in the end the legal profession is the last buffer for the protection of the citizen.

I personally have no hesitation in saying that I would not like to be dependent upon any judge or any justice to appoint me or not to appoint me to defend any accused. If the accused wants my services he will get them freely. I think it should be left open to the accused to select his own lawyer or his own lawyers as the case may be. I do not think that it is practicable to suggest that because the accused can select his own lawyer the course of justice can be interfered with or held up. The man who can pay his own way can select any lawyer he likes freely himself and the course of justice cannot thereby be held up. The only difference between the two selections is that under this Bill he selects his lawyer and instead of paying the lawyer himself the State pays for him. That, I may inform the Minister, is a point upon which my profession feel very strongly.

As regards the other matter, we appreciate that this is a small country and that the amount which the country can afford to bear by way of expenses is limited. We appreciate that the matter to a great extent is experimental. Speaking on behalf of my profession, I can assure the Minister that assuming the whole thing will depend upon the regulations—assuming that the regulations are reasonable and we have no doubt that they will be reasonable—the Minister can certainly count upon the co-operation of the solicitors' profession in putting the Bill into practice.

First of all, I want to make it clear to the House, and to Senator Fitzpatrick, in particular, that I do not at all resent suggestions for the improvement of the Bill. I fully appreciate the spirit in which the suggestions and criticisms are offered. I genuinely and sincerely believe that any matter which comes into this House can be improved by all Senators bringing their experience, knowledge and their professional qualifications, such as they may be, to bear on it. I have always found this House to be particularly co-operative and helpful in that way. I readily accept that is the spirit in which they are approaching this measure also. Indeed, I may say that the Bill has received a more gracious commendation than it did in the Dáil. I felt that the Deputies in the Dáil who spoke to it might have given a little bit more credit for the fact that the Bill was introduced at all. However, that is neither here nor there.

Senators Fitzpatrick and Nash spoke about the position in the law that a poor person will be defended free by members of the profession. That noble tradition has always been there and it is a very fine tradition but I think the time has come when we must do something more. I want to point out this about that particular tradition. It is unfair to the legal profession as between themselves because I myself know a very eminent practitioner in the courts who does a very great deal of criminal work. He told me that he never defended anyone free of charge. He was always paid for the work he did. That is a very legitimate attitude for him to take up. Against that, you had other members of the profession who were in prosecutions defending accused persons free of charge. Therefore, some members of the profession were bearing an unfair burden in that regard.

Furthermore, I think that most of us would agree that our thinking on these matters has advanced from the stage when we would be prepared to accept the situation where poor persons would have to rely on the generosity of individual members of the legal profession to procure their defence. Thinking with regard to social services generally has rejected that sort of approach. It is better that the State should now assume this obligation where it is essential in the interests of justice to provide proper legal services for an accused person.

Senators Fitzpatrick and Nash spoke about the question of the freedom of choice which they would like to see made available to an accused person. I do not want to go too deeply into that on Second Stage. We will be speaking about it on Committee Stage. However, I want to say this. First of all, it is wrong to create an impression that there is a principle involved here and that accused persons are entitled to and should have complete freedom of choice as to the solicitor they wish to defend them. That freedom of choice is illusory in any circumstances. Take the case of an accused person who is able to pay his own way and look at all the limitations he suffers from. It is all very well to say that he is entitled to choose any solicitor he wishes. When you examine the matter, you find that is not so. He can choose anyone for whom he is able to pay. The solicitor must be prepared to take him as a client. He must be prepared to take the case, provided he is available. You go along to the office of some eminent solicitor and say: "I want to employ So-and-So, the eminent legal man, to take this case and defend me." When you come to court you will find the case is being handled by some junior of his. Admittedly you have the eminent practitioner in name but in fact you have some junior member of the staff of the office. So that even, as I say, where the client or accused person is paying his own way this question of complete freedom of choice is just not real at all. Furthermore, I made this point in the Dáil and I should just like to repeat it here, every day in my office I get letters from persons who have been defended by solicitors and counsel, whom they selected themselves and whom they paid, but nevertheless they complain to me that the solicitors and counsel made a complete mess of their case and they want to know what am I going to do about it.

They will be complaining to the Taoiseach about the Minister when this Bill goes through.

That sort of thing happens so we cannot possibly hope to legislate on the basis of satisfying every crank. Admittedly there will be people who might get free legal aid who will not like the solicitor or counsel assigned to them but they will not like or dislike their solicitor or counsel until their case gets under way. You cannot hope to satisfy everybody.

Senator Fitzpatrick spoke about experience and said that the practising lawyers have more experience than my advisers or myself. That is not strictly true because what we are talking about here is something new. Practising lawyers have experience of the law and the working of the criminal law in courts but they have not got experience of any free legal aid scheme no more than we have but we took the precaution of going to the North of Ireland where they have a scheme like this in operation since 1946 and studying in detail how it works up there. At least we have covered ourselves to that extent so that we are as much in a position to examine the relative merits of this particular proposal as eminent practitioners might be.

Before I leave the question of a free choice of solicitor I want to make this clear. As the Bill stands at present it can provide in the regulations exactly what Senator Nash and Senator Fitzpatrick would like. In other words, as the Bill stands there is no reason why the regulations should not provide a complete free choice of solicitor or counsel to the accused. The only difference is that I propose to frame the regulations on the basis that the final assignment will be made by the judge. The regulations can be changed at any time. If my suggestion turns out in practice not to work satisfactorily we can change the regulations and there is nothing in the regulations to prevent us from giving a free choice. However, in the experimental stage I think it is much safer and more prudent to leave the final choice to the judge after considering any wishes of the accused. It might be argued that as the State are footing the Bill in this case they therefore should be entitled to select the solicitor and counsel. That would not have been an entirely unreasonable case to put to the House. However, I can understand Senators very rightly objecting to that.

I can imagine what Senators would urge if I came in with that proposal. They would urge that it should be given to the judge and taken from the State. That is what we are doing. It is important that we try to make this scheme work freely whether we like it or not. There are persons who make a profession of crime and who know every trick in the game and who would, I am quite certain, if we do not watch the scheme carefully, make this whole scheme unworkable by the way in which they would behave in regard to it. It is to avoid that that I want to provide that the accused person will be consulted and unless the judge has some perfectly good or valid reason for not assigning any counsel or solicitor the accused person has asked for, he will have to assign that person.

I have been asked about the habitual criminal. In the Dáil, when introducing the Bill, I did say that an accused person who was a habitual criminal —a term I use for want of a better one—could in fact get free legal aid in exceptional circumstances. I did make it clear that there could be cases where, because of the exceptional circumstances of the case, even a habitual criminal would be entitled to and would get free legal aid. I want to repeat that here. We would not normally envisage that persons who are habitually being convicted of crimes would be entitled to free legal aid but we do think that there might even in such cases be exceptional circumstances which would justify the judge in giving a free legal aid certificate. And we are leaving the judge or justice perfectly free to use his discretion in this respect.

Who would decide the meaning of the term "habitual criminal"?

The judge.

Would that mean——

An Leas-Chathaoirleach

I should like to be able to follow this conversation.

I think the point the Senator is making is how would a judge be enabled to decide what were the means of an habitual criminal.

Or of any accused.

Or any accused, but I think he said an habitual criminal. With regard to the general question, we do propose to provide in the regulations for some simple type of form which will be filled in by the accused. On the basis of that the judge will make up his own mind as to whether or not the person's means are such that he is or is not entitled to free legal aid. We are leaving it very largely to the discretion of the judge and we are leaving it very flexible. I think that is the right way to leave it. I feel sure the courts will be reasonable about the matter and that they will be quite capable of deciding in any individual case coming before them whether the person's means are such as to justify the granting of free legal aid or not.

Some Senators made the point about handing over the control of this scheme to the legal professions. There is a misunderstanding about this aspect. Some Senators said, and it was also said in the Dáil, that in Britain this type of scheme has been handed over to the equivalent of our Incorporated Law Society to be administered. That is not so. First of all, this free legal aid is in two parts, if you like, free legal aid in criminal matters and free legal aid in civil matters. At the moment in this Bill we are only dealing with free legal aid in criminal matters. Free legal aid in criminal cases was introduced in Britain in 1903 but it was not until 1960 that the English Law Society were given any responsibility, and then only in the matter of fixing fees in magistrates' courts.

A very important matter.

I agree. It is not correct to say that the scheme in Britain has been handed over to be administered by the Incorporated Law Society there, nor has it in the North of Ireland. A similar scheme to the one we are proposing now has been operated there since 1946 and the Incorporated Law Society up there does not enter into it at all. We are in fact not being in any way substantially different from Britain or Northern Ireland in this regard.

The question of consulting the professions has been raised. I have already made it clear that I have had consultations with the Incorporated Law Society and the Bar Council and I propose to have further consultations. Those consultations are on a voluntary basis. Senator Fitzpatrick would like to make them obligatory. I explained in the Dáil, and I think I am right when I say, that those consultations would lose a very great deal of their value if they were carried out as a result of any statutory requirement. The relationship between the Minister for Justice for the time being and the two professional bodies should be such that they would consult together from time to time on all sorts of different matters. That is the way I approach it. I intend to continue that. The value of that would be a great deal lessened if the Incorporated Law Society or the Bar Council knew that I was merely approaching them because a statute required me to do it. Consultation in that way could become quite formal and indeed of very little value.

Senator Desmond asked me about the provision of Section 4 with regard to the granting of a legal aid appeal certificate. Right through this Bill there is the principle that free legal aid will be granted only where it is essential in the interests of justice because of the serious nature of the offence or because of exceptional circumstances. I should like to make it clear that it is not just confined to serious offences. It could also be very minor or trivial offences which had exceptional circumstances, such as where some person was accused of larceny and had a very technical and difficult defence. The offence itself might be a minor one and the charge would not be of a serious nature, but there might be exceptional circumstances of a technical nature which would entitle the accused to free legal aid. Senator Desmond, therefore, first of all is not correct in saying that it is confined to exceptional and serious charges.

Apart from that, I want to say quite frankly to the House that this is a limited, experimental measure. There are a lot of unknown factors in it. We do not know what it is going to cost. We do not want it to run riot. We want to keep it under tight control in the beginning and see how it works out and then see whether circumstances indicate that we should introduce refinements of one sort or another. In the beginning we feel that we should act with prudence and confine the scheme to cases where it is essential to avoid a miscarriage of justice that the accused should get free legal aid. It would have to appear to the court that either the charge was of a serious nature or that there were exceptional circumstances involved.

We could not possibly contemplate in an original trial or in an appeal that in every case the accused would be entitled to free legal aid. It would certainly work out, if particular accused persons could get free legal aid in every case or there were no limits proposed in the Bill, that the number of appeals which would be taken on trivial grounds would multiply enormously.

I think that those are the principal matters which were raised in the discussion.

Does the Minister think that there is anything in the point about the application for the certificate being made in chambers?

I do. Indeed I would not contemplate that there should be any examination in open court of the accused person's means. That would be undesirable and I shall endeavour to work the scheme so that that would not happen. As I said, I think that I have dealt with the main points which were raised in the discussion, which has been a helpful one. We can, of course, go further into all these matters on the Committee Stage.

Question put and agreed to.
Agreed to take Committee Stage on next sitting day.