Before we take up consideration of the Committee Stage of this Bill, I should like to indicate that I have ruled that amendments 1 and 3 to 9 inclusive, standing in the name of Senator Fitzpatrick, are out of order on the grounds that they involve potential charges on State funds. The Senator has been notified accordingly.
Criminal Justice (Legal Aid) Bill, 1961—Committee and Final Stages.
I should like to make a few remarks which I think will express my views on a number of sections in the Bill. I put down a number of amendments and, if I may say so with respect, the Chair very correctly ruled them out of order on the grounds that they would involve potential charges on State funds. I do not propose to make any case that the amendments should be accepted. I think I am in order in saying that in my view this section and Sections 3 and 4, and other sections of the Bill, are ineffective as they stand. I think that Section 2, as drafted, will be impossible to enforce. In fact, I suggest that it is very nearly meaningless.
Section 2 deals with the right of the district justice to grant a legal aid certificate. Subparagraph (b) provides that the district justice may grant a certificate if the court thinks "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." You will see, therefore, that before the district justice has power to grant a legal aid certificate there must be exceptional circumstances and the charge must be a grave one. One would think that those two conditions—the gravity of the charge and the exceptional circumstances—should be sufficient to warrant the granting of a legal aid certificate by the district justice. However, the section as it stands goes on to say that the district justice must be satisfied that it is essential in the interests of justice that a legal aid certificate should be granted.
With the greatest respect to the Minister and his advisers, I would say that it will be impossible for the district justice ever to grant a legal aid certificate if he is to be satisfied that it is essential in the interests of justice that he should do so. Indeed, some district justices might take the view that an accused person might get a more sympathetic hearing from a judge and jury if he were not professionally represented. Some district justices might think that if an accused person, before a jury, were not professionally represented, the onus would then be cast upon the trial judge, even to a higher degree, to put the defence case before the jury and that the defence case, coming from the judge instead of from a legal adviser employed by the accused, might get more sympathetic consideration from the jury.
I could think of a multitude of reasons why a district justice, if he wanted to do so, might decide that it was not essential in the interests of justice to grant a legal aid certificate. I would say to the House, and say it with all the force I can command, that the section as drafted, with the words "exceptional circumstances" and "gravity of the charge" in it, would be much more effective if a lesser word than "essential" were substituted. I think then the court would have a discretion which it could exercise.
If this section as it stands is strictly interpreted by the district justices and by the other courts, with which later sections in the Bill deal, then an accused person would never be entitled in my considered opinion to get a legal aid certificate. I would strongly urge on the Minister, even at this late stage and in the interests of the proper working of the Bill, to reconsider this section. I urge him to have another look at it with a view to inserting a more flexible word, a word that will leave the courts with some discretion.
As the Seanad is probably aware, we had a great deal of discussion in the Dáil on the difference between "essential" and "desirable". I want to point out to the House that this is a limited scheme, a very experimental scheme. It is something quite new to our society, to our legal system and to our courts. We are very much in the dark as to how it will work out. We hope it will serve a very beneficial purpose at a reasonable cost but, at this stage, we are, as I said, considerably in the dark as to what the cost will be. In that situation, it is only prudent for us to begin with a restricted scheme as set out in the Bill. I think that that is just common prudence.
There are a great many things that are desirable and that we should all like to see provided. However, our total resources are limited and the portion available for social welfare matters of this sort can be applied for a very large number of deserving purposes.
I feel that this particular social purpose deserves some portion of our resources but I do not think that, at this stage, we can accurately determine the total amount involved. Certainly I do not think this is something we should walk into blindly, regardless of expense. That is the principle on which the Bill is framed. The Government have decided that the scheme should be confined, in the beginning at any rate, to cases where it is essential in the interests of justice that the accused should get free legal aid. That essentiality can arise in two ways. It can arise because of the gravity of the charge or the exceptional circumstances. That leaves it fairly wide. We are pinning it down to the case where it is necessary, or essential in the interests of justice, that the accused should be defended free of charge and the cost of the defence paid by the State.
I am absolutely optimistic that this scheme will work out well in practice, and that the courts will operate it sensibly and with discretion, as it has been operated in Northern Ireland for 16 years.
I submit, with respect, that Senator Fitzpatrick is not consistent. He wants discretion given to the district justice in this regard, but when it comes to appointing a solicitor to defend the accused he does not want the district justice to have any discretion whatever. Senator Fitzpatrick cannot have it both ways. The difference between "desirable" and "essential" is largely one of degree. At this stage we must put a limiting factor on the scheme. Later on, when we see the exact cost, we may find it possible to enlarge the scheme. On the other hand, we may have to tighten it up because the cost may prove to be disproportionate. It may be grossly extravagant.
In any event, we propose to begin prudently with a restricted scheme. I am not at all sure that when we come to see in what way it can be extended we may not decide that it would be better to extend it in the sphere of giving legal aid and advice on the civil side rather than on the criminal side as Senator Fitzpatrick suggests. In any event, the decision will have to be taken in the light of experience. At this stage I think we are being nothing more than prudent in insisting that the word "essential" remains in the section.
I should like Senators to be reasonable and sensible in their approach to the scheme. After all, it is a big advance on the present position. Even where it is essential in the interests of justice that a person should get free legal aid he cannot get it at the moment. I appeal to the House to allow the scheme go through as it is. Admittedly, it is a restricted, limited scheme but it cannot reasonably be otherwise at this stage.
Lest the Minister might appear to establish that this is a completely new idea, in the interests of accuracy I venture to put on record that it is merely a very limited extension of the idea already in practice here, namely, assignment in murder trials. For some years a person without means has been assigned solicitors and both the junior and senior counsel in murder trials, and the State are responsible for the fees. It is not a very great responsibility, I hasten to add.
The Minister asked the House to approach this matter in a sensible and reasonable way, almost implying that any argument or any proposal which purports to disagree with what he recommends is either unreasonable or nonsensical. I do not think the best can be got from a deliberative assembly by an approach of that kind.
The discretion of a district justice in nominating solicitors and in deciding on the gravity of a matter necessary to qualify a person under the section are two completely different things. I do not think for one moment that Senator Fitzpatrick is being inconsistent when he challenges the one and requires something quite different in the other set of circumstances. If, as the Minister has intimated, there is to be any extension of this principle of what he calls social welfare legislation in the light of what we can afford at some future time, and if that extension is to be devoted towards the civil side, that in my opinion would be a mistake. There has been a niggardly approach towards the criminal side.
In the whole business of assignment in murder trial of solicitors and counsel, grave offences and lack of means give rise to much wider issues and merit the consideration of the district justice. The assignment of solicitor and counsel should be on a permanent basis but I do not think I would be in order, or that it would be relevant to deal with that broad issue on this section of the Bill. The fluctuations of patronage with changes of Government do not make for the competence we all desire. Over short periods between changes of Government the practitioners cannot get the experience which begets the competence that is really desirable and essential.
I move amendment No. 2:
In subsection (2) (c) (ii), page 3, lines 14 to 16, to delete
"(including the nature of such defence (if any) as may have been set up),".
Section 3 deals with the granting of legal aid certificates in cases of trial on indictment. It is only the more serious type of offence that is sent forward by the district justice to the Circuit Criminal Court or the Central Criminal Court for trial before judge and jury. It is a long-established practice in this country—indeed, since the setting up the State and before it—that a person who is charged in the district court with a serious offence, where depositions are taken in the district court and the district justice decides that aprima facie case has been established, the accused person invariably reserves his defence.
In other words, he does not disclose his defence in the district court. There is no obligation on him to do so. That is a privilege enjoyed by the accused person. Indeed, there would be no point whatever in disclosing his defence at that stage because once the district justice decided aprima facie case had been established no defence the accused person could put forward would entitle the district justice to refuse informations. The district justice in a case that may be tried on indictment is not entitled to decide who is telling the truth and is not entitled to decide whether he believes the witnesses for the prosecution or the witnesses for the defence. Once a prima facie case is established it is his duty to return the accused person for trial by a judge and jury. Subsection (2) of this section says:
(2) A legal aid (trial on indictment) certificate shall be granted in respect of a person returned for trial for an indictable offence if (but only if)—
(a) application is made therefor,
(b) it appears to the District Court or the judge of the court before which the person is to be or is being tried that the means of the person are insufficient to enable him to obtain legal aid, and
(i) the return for trial is upon a charge of murder, or
(ii) it appears to the District Court or the judge of the court before which the person is to be or is being tried (as the case may be) that, having regard to all the circumstances of the case (including the nature of such defence (if any) as may have been set up), it is essential in the interests of justice that the person should have legal aid in the preparation and conduct of his defence at the trial.
I object to that part of the section, which invites the district justice, or the judge, to consider the nature of the defence, if any, which is being set up or which it is proposed to set up. As I say, that section invites the district justice—
It says nothing about "proposed" in the section.
It says: "including the nature of such defence (if any) as may have been set up."
It says nothing about "proposed".
No, but I say that subsection invites the court to inquire if the person has any defence. It invites the court to say: "This man has not disclosed his defence." Otherwise, there is not really much point in it. The court might well say: "If he had set up a defence I might consider granting legal aid." The judge might say: "It is a serious offence, the person has no legal aid and no means to get legal aid but he has not disclosed any defence. Therefore, it appears to me that he has not anybona fide defence and I shall not give him a certificate entitling him to any free legal aid.” I would say those words are really dangerous words to put in the section because they might encourage a member of the Garda Síochána to say to the accused person “If you disclose your defence you will get legal aid or if you disclose your defence you have a better chance of getting legal aid.” If the Minister will forgive me again for using the word “meaningless”, I would say the words are meaningless if they do not mean that the person who discloses his defence has a better chance of getting legal aid than the person who does not disclose it. If that is the object of putting those words into the section they are taking from an accused person in necessitous circumstances a right which he has enjoyed for a long number of years and which has been regarded in the legal profession as a valuable right, because up to now the accused person was entitled to withhold his defence until the prosecution case closed before the judge and jury.
It appears to be unfair to put an accused person in necessitous circumstances in a less favourable position than an accused person who is able to provide his own defence. The whole object of this Bill, a very worthy object, is to try to prevent a miscarriage of justice. I think, and those who have long experience in criminal practice will agree with me, that a miscarriage of justice could be brought about by encouraging a person, who at that stage is not legally represented, to disclose the nature of his defence. I would say that could lead to a miscarriage of justice and that instead of the Bill attaining its object it could bring about that state of affairs. I do not think the Bill gains a lot by having those words in it. I do not think it will save the Exchequer or the taxpayer any considerable amount of money by including those words in the subsection. The subsection as it stands is undesirable. There is nothing contentious in either the section or my amendment. My amendment has been put down with an honest desire to produce an Act that will be work- able and fair to the accused person and to the State and which will achieve the object which the Minister had in mind when introducing the Bill.
I will forgive Senator Fitzpatrick for using the word "meaningless" if he will forgive me for appealing for commonsense in approaching this Bill. I do not understand the Senator's difficulty with regard to those words and I hope I may be able to persuade him that they are, if I may use this rather debated word, "essential". The argument used in the Dáil with regard to this particular section was that the phrase "having regard to all the circumstances of the case" was sufficient, that once you used those words it was not necessary to elaborate on them in any way. But there is a danger in the use of these words "having regard to all the circumstances of the case" and no more. The district justice in returning a person for trial, or the Circuit Court judge in considering the application for legal aid, might say in relation to those words: "This means I must have regard to all the circumstances. The nature of the defence is one of the circumstances of the case, a very relevant circumstance"—he might say—"so I must require the defendant to disclose his defence to me." I am in full agreement with Senator Fitzpatrick that it should not be necessary for the defendant to disclose his defence. These words were inserted to ensure that he does not have to disclose his defence and they are a safeguard because otherwise the justice or judge might say the nature of the defence was one of the circumstances to which he had to have regard.
The section as it stands achieves what both Senator Fitzpatrick and I desire, namely, that if the defence has been disclosed the nature of that defence will be one of the factors a judge will take into account and if it has not he will not be required to inquire what it is. The phraseology here is exactly the same as is used in Great Britain. The Rushcliffe Committee which examined this matter in Britain, on the basis of whose report the comprehensive scheme of legal aid was introduced, quoted from, and made no adverse comment on this statement in theJustice of the peace:
Under the repealed Act of 1903, it was undoubtedly necessary that a defence should have been disclosed before legal aid could be granted; the Act of 1930, however, required the certifying authority to take into consideration the defence, if any, thus clearly implying that the disclosure of the defence is not now a condition precedent.
The 1930 Act has exactly the same wording as we have. The words were inserted as a safeguard and as the Bill was going through the Dáil we changed the wording to strengthen that safeguard. The Draftsman had assured us that the original wording was clear but some doubts were expressed in the Dáil and so we reworded it.
The Minister and myself are nowad idem in so far as both of us think it is undesirable that an accused person should be invited to disclose his defence. In those circumstances I would ask the Minister to make a simple amendment by making “including” read “excluding”.
In a case where a defence had been set up that amendment would not be appropriate.
No, the defence is something that should not be taken into consideration.
Surely the nature of the defence is one of the factors that would in certain circumstances dictate whether the granting of free legal aid was absolutely necessary. The defence might be of such a nature as to indicate that there was a complex legal issue involved. The Senator's proposed substitution would preclude the justice from having regard to the nature of the defence even if it had been set up and I suggest the Senator would not like that.
I think the section as it stands is open to abuse in so far as an accused person may be encouraged to disclose his defence. I think the section should be redrafted in such a way as to preclude the judge from taking into consideration the fact that a defence had not been disclosed.
I cannot agree with Senator Fitzpatrick at all. The only matters that are to be taken into account are the circumstances of the accused, whether it is essential in the interests of justice. If the accused has already set up his defence, if I go into court and indicate that I want free legal aid for this man, I submit that it is in the interests of justice he should be represented by a lawyer because his defence is such and such. I actually set up the defence then. The court is entitled to take it into account; otherwise, the court cannot consider it or, by reason of the insertion of the words in the section which Senator Fitzpatrick wants excluded. I submit that if they were excluded they would give the section the meaning which Senator Fitzpatrick wants to avoid. One of the facts to consider is whether the man has any defence or no defence. Is he pleading guilty? Under the section as it is the man has not to disclose and it excludes the court considering the nature of his defence unless it is already in anticipation of being set up.
I still remain unconvinced. I think that the section as drawn is open to the abuse of encouraging a person to disclose his defence and some words should be put into it to make it obligatory on the judge to warn the accused person that he need not do so. I do not press the amendment.
I move Amendment No. 10:
Before section 8 to insert the following new section:
"8. (1) Where the Court of Criminal Appeal awards costs under section 34 of the Courts of Justice Act, 1924, or section 5 of the Courts of Justice Act, 1928, to a person who holds a legal aid (trial on indictment) certificate covering the proceedings in respect of which the said costs have been so awarded, such person shall give credit for the costs payable under said certificate.
(2) Where the Court of Criminal Appeal awards costs under said section 34 or section 5 to a person who holds a legal aid (appeal) certificate covering the proceedings in respect of which said costs have been so awarded, such person shall give credit for the costs payable under said certificate."
The section as it stands means that the Court of Criminal Appeal is precluded from awarding an accused person costs, as is the position at present. If a person is convicted before a judge and jury and if that person appeals to the Court of Criminal Appeal, and the Court of Criminal Appeal sees fit to set aside the conviction on the grounds that the trial was unsatisfactory or on some other valid ground, then the Court of Criminal Appeal has jurisdiction at the moment to award the accused person the costs of the appeal to the Court of Criminal Appeal and the costs of a new trial if a new trial is ordered.
The costs to which that person is entitled are such costs as will tax on a solicitor and client bill. The bill is submitted to one of the Taxing Masters of the High Court. He taxes the costs and the accused person can get only such costs as are properly taxable. The section as it stands takes that right away from an accused person who has been granted free legal aid. In other words, once the person is granted free legal aid he must stand or fall by his legal aid certificate even if the State, in presenting their case in the court of first instance, before judge and jury, make a mistake in presenting the case or present some evidence which should not be presented, or if the trial judge misdirects the jury.
The accused person then has to appeal but he is not to have the right which he now enjoys of being awarded solicitor and client costs by the Court of Criminal Appeal. I agree with the Minister it would be absurd that the person should get costs under his legal aid certificate and costs on a solicitor and client basis. Nobody wants that. However, I think it was admitted that the costs that a person will get on a legal aid certificate will be substantially less than the costs to which he would be entitled on a taxed bill of costs basis.
My amendment means nothing more than that if a person in the opinion of the Court of Criminal Appeal is wrongly convicted by a judge and jury, and has his appeal allowed, he should be entitled to be allowed full solicitor and client costs but must give credit for the costs which he has been awarded under the legal aid certificate. That is only reasonable. I think that this section, as it now stands, is another instance of the accused person who seeks legal aid being placed in a worse off position than his wealthy fellow citizen. I do not think that that was ever the intention of the Bill. I think that the State would not lose anything by accepting this amendment. There is nothing more that I want to say about it. I think it is a reasonable amendment and I ask the Minister to accept it.
I am afraid I cannot accept this amendment. I should like to explain my reasons to the House. The provisions to which the Senator refers, that is, Section 34 of the Courts of Justice Act, 1924, and Section 5 of the Courts of Justice Act, 1928, were introduced in circumstances when there was no scheme of free legal aid. The very fact that we are now introducing a scheme of free legal aid changes that situation radically. It is logical to expect that where we introduce a scheme of free legal aid, where we grant a man a free legal defence at all stages from the District Court to the Circuit Court up to the Court of Criminal Appeal, we should be expected to retain in regard to that man provisions which were introduced to cater for entirely different circumstances, that is, circumstances when there are no scheme of free legal aid in existence.
I think it is only fair that if an accused person proves to the satisfaction of the court that it is essential in the interests of justice that he get free legal aid, and proceeds to avail himself of it, he should then continue under the scheme to the end and should not, when he comes to the Court of Criminal Appeal, be able to opt, as it were, into a different system which Senator Fitzpatrick seems to assume will provide a more satisfactory scale of costs than the one we propose. The Senator is assuming that the scale of costs that will be worked out under this Bill will be entirely unsatisfactory —at least that it will be less satisfactory to the solicitor and counsel than the present position in the matter of costs.
I do not like to interrupt the Minister but may I say I think the Minister actually said so on the Second Stage?
I did not say that— at least I hope I did not say it because I do not mean it.
I am glad to hear it.
What I have said in the Dáil on this very point is that I hope we shall be able, in drafting regulations in consultation with the Law Society and the Bar Council, to provide a scale of fees which will be acceptable to both professions. When I say that they will be acceptable I suggest they will be acceptable, bearing in mind the tradition of both professions of voluntarily providing free legal aid in deserving criminal cases. When we take that tradition into account, which is in our present system, I am confident the scale of fees to be prescribed under this Bill will be accepted by the members of both professions as satisfactory. I do not think we should assume otherwise.
Senator Fitzpatrick wants to ensure that where a person receives free legal aid and gets as far as the Court of Criminal Appeal under the scheme, he will then be able as it were to throw that scheme overboard and opt for a different set of costs—the costs which apply at the moment, when there is no free legal aid scheme in existence.
I think the proposal in the Bill is a fair one. We shall still have accused persons going to the Court of Criminal Appeal, winning their cases and being awarded costs under the old provisions. We are not interfering with that at all. We are stipulating that where a person proceeds to avail himself of the benefits of this scheme and gets as far as the court of criminal appeal under it, he must stick to the scheme and cannot at that stage opt for a completely different system.
If the Minister assures the House the costs payable under the free legal aid scheme will be substantially those to which the person would be entitled on the solicitor and client basis, I am satisfied.
I am not going that far. I am saying I would hope that, bearing in mind the tradition both professions have of defending poor persons free of charge, the scale we will be able to settle will be acceptable to them.
That is somewhat different. It is all right defending an accused person who has been returned for trial before a judge and jury. Once that trial is disposed of, if it ends there, I think the professions would be satisfied, but if either the people employed by the State or, with the greatest respect, the learned judge makes a mess of the trial and the accused person appeals to the Court of Criminal Appeal, and the Court of Criminal Appeal holds that the person has grounds for dissatisfaction and is entitled to a new trial and orders a new trial, there you have not one trial, but one, two, three trials. While a person might be prepared to accept somewhat reduced fees for the first appearance, it is unreasonable that he should, through the fault of the State, be compelled to follow the accused up to the Court of Criminal Appeal and back down to the Central Criminal Court for the same limited remuneration.
Senator Fitzpatrick is not naive. He knows that at the moment to a large extent that type of case is being conducted by solicitor and counsel as often as not for nothing. We are now proposing in all deserving cases that solicitor and counsel will at least be paid.
In that type of case they are well remunerated if they get to the Court of Criminal Appeal, win and come back down again.
Undoubtedly, but as against that they take many cases, lose, and get nothing. We are introducing a rational element into the situation in which solicitor and counsel will be employed and paid in cases which go to the Court of Criminal Appeal.
There may be somewhat of a difference of opinion between myself and the two professions as to whether what we pay will be adequate. At least I hope it will be substantially adequate. In those circumstances I think the logical thing to do is to have the two systems, bearing in mind that we are not doing away with the old tradition under which the Court of Criminal Appeal is entitled to allow costs. In future it will remain in relation to the persons who have not availed themselves of free legal aid, if they have to go to the Court of Criminal Appeal. In that case the Court of Criminal Appeal will continue to be in a position to award solicitor and client costs. Side by side with that the new system will operate and the person who got free legal aid will get it right up to the Court of Criminal Appeal and for any new trial that may be ordered.
The Minister says that the person who goes up to the Court of Criminal Appeal and loses may get nothing. Well and good, but if he goes up and wins and comes back down again he is still only paid on a very limited scale. That is not fair.
I move amendment No. 11:
In subsection (1), page 6, line 48, before "may" to insert the following:
"having consulted the Incorporated Law Society of Ireland and the Bar Council"
This amendment is designed to make it obligatory on the Minister to consult the Incorporated Law Society and the Council of the Bar of Ireland before he makes regulations under Section 10. I know the Minister has said it is his intention to consult the two branches of the legal profession before making these regulations. I think he told us that in fact he had already consulted them. I think the Minister is very wise in that because unless he and his Department get the co-operation of both branches of the legal profession on this scheme it is doomed to failure before it starts.
Under the section as it stands, there is no obligation on the Minister to consult either branch of the legal profession. It may be his intention to consult the Incorporated Law Society and the Bar Council—he has given that assurance and I am sure he will honour it—but how do we know what some successor of his will do? How do we know what approach he will make to this matter? There is another point; if it is written into the Bill that the Minister must consult the Incorporated Law Society and the Bar Council before making regulations, those professional bodies will feel they are part of the scheme, and that they are being asked by the Oireachtas to help the Minister in running the scheme. Notwithstanding the Minister's remarks on Second Stage, it is more likely that he will get the co-operation of the professions if he goes to them and asks for their advice and help, and if he accepts that advice and help when he gets it.
If it is the Minister's intention as he has told us—and I am sure it is— to consult both branches of the profession before making regulations, then surely there is no valid objection to writing that into the Bill. That is a desirable and sensible approach and I think it is an approach that would be calculated to get the goodwill of the solicitors' profession and the Bar.
Again I regret I must differ from my friend Senator Fitzpatrick on this amendment. Our experience in the solicitors' profession has been that the Minister has invariably conferred with us on matters which materially and fundamentally affected the profession. He has already conferred with us in relation to this Bill, and he has stated in the Dáil that it is his intention to confer with us before drafting the regulations. Therefore, for my part—and I think I am expressing the views of a great number of my profession—I would prefer to rely on what the Minister has said rather than appear to doubt his word by having written into the actual Bill that he must confer with us or must consult with us.
There is a very big difference between conferring or consulting with a body and co-operating with a body. You can write in that you must consult or confer if you like, but it is a very different matter from co-operation. We in our profession welcome this Bill and we hope to act in co-operation with the Minister. That co-operation could be got very much better both on our part and on the Minister's part with a spirit of good-will which heretofore existed—and I am speaking only for my own branch of the legal profession—between the Minister and ourselves.
If Senator Nash tells me he is speaking on behalf of the Incorporated Law Society, and that those are the views of the Society, while I would be somewhat surprised it would make it easier to withdraw the amendment.
None of us is in a better position to know the mind and outlook of the Law Society on this or any of these matters, than Senator Nash. He is a distinguished ex-President and a very honoured member of the Council and I must say that I fully agree with what he has said. He has put it much better than I could have put it. I am very happy to be able to tell the House that as Minister for Justice I have the most excellent relations with the Law Society and I hope they will continue for a long time. I feel sure that if I give an undertaking here as Minister for Justice that I will consult the Law Society or the Bar Council with regard to making these regulations any such undertaking would be honoured by my successor in office, no matter from what Party he came. He would feel he had a certain obligation to do that.
The simple truth of the matter is we have already discussed the matter with both professions and will do so again. I fully agree with Senator Nash ——
Senator Nash agrees with the Minister. He made the speech which the Minister made on the Second Stage.
The discussions would lose something if they were obligatory. It is desirable that a Minister when consulting with a vocational body should do so freely and voluntarily. If there were a statutory obligation on him to do it I think he would be more likely to carry out the consultation as a mere gesture. I think Senator Fitzpatrick would be the first to admit that the writing of these words into this statute would mean nothing unless the Minister of the day were prepared to take them in the proper spirit. Otherwise he could simply consult with the Law Society and the Bar Council in a perfunctory fashion and then forget all about it. What we really want is co-operation between the Department of Justice and the two great legal professions. We have it at the moment and I have no doubt that we shall be able to continue to have it. I really do not think that those words are necessary at all and that indeed the section would lose something if we were to put them in.
I move amendment No. 12:
In subsection (1) (c), page 6, line 55, at the end of the paragraph to add: "provided that the accused person shall be entitled to have assigned to him the solicitor of his choice, provided the said solicitor is available and willing to act on the terms provided by the regulations made under this section.
This deals with the regulations which the Minister may make under Section 10 without consulting the Incorporated Law Society or the Bar Council. Paragraph (c) of Section 10 says that the Minister may make regulations prescribing, amongst other thing:
That manner in which solicitors and counsel are to be assigned pursuant to such certificates.
From a discussion in the Dáil and in this House it became apparent that the Minister is of the opinion that the district justice or the trial judge should in the final analysis decide what solicitor will represent the accused. The Minister has accused me of being inconsistent in that I wanted to give the district justice a discretion in deciding whether or not it was essential in the interests of justice that a legal aid certificate should be granted, and that I did not want to give the district justice a discretion in selecting the solicitor by whom an accused person should be defended. With the greatest respect I say there is no comparison whatsoever, good, bad or indifferent, between the two things. In Section 2, I think it is, when the district justice is deciding whether or not it is essential that a person should have legal aid he is exercising a judicial discretion. He is giving a decision on circumstances and facts before him. My argument then was that the court was tied up by the word "essential", that it could not exercise discretion in the discharge of what was clearly a judicial function. In my opinion it certainly is not a judicial function to decide by whom a person should be defended. I think that it is really only behind the Iron Curtain, or very near to it, that the State decides by whom a person is to be defended.
In the earlier discussions on this particular section we had all sorts of talk about the administration of justice being obstructed by accused persons exercising their rights of choice of solicitors in an unreasonable manner. Nobody wants to confirm on an accused person the right to obstruct the court or the administration of justice by nominating some solicitor who is not available, or who might not be available for weeks. It was even suggested that an accused person in Cavan might call for a solicitor from the city of Cork to defend him. That would be absurd and nobody contemplates such a situation.
There is a very good solicitor down there, all the same.
Really, the choice that I am seeking for the accused person is a very limited choice. It is the right of the accused person to choose from a panel of solicitors attached to the court before which he is to be tried such solicitor as may be available and willing to act for him. As I say, it is the intention of the Minister to prescribe regulations whereby there will be attached to every court a panel of solicitors who intimate that they are prepared to defend accused persons in that court on the terms prescribed by the regulations. In cities and larger towns you may have several solicitors on such a panel. In smaller towns you might only have two or three. My amendment simply asks that an accused person be given the right to say: "From solicitors A, B and C, all of whom are on the panel and who are willing to defend me on terms acceptable to the Minister, I select solicitor B instead of solicitor C or solicitor A." Is there anything objectionable about that? Is there any likelihood that the administration of justice will be obstructed or impeded? If two of the three solicitors are away and there is only one left, then the accused person must take him, but that situation could arise even in the case of a comparatively wealthy person. But that is a very different state of affairs from an accused person being told that solicitors A, B and C are available but that he must be defended by solicitor A. If an accused person who wants solicitor A is told that he must have solicitor B, he will go down into his grave believing that if he had been given the solicitor of his choice he would have been acquitted.
I should like to support Senator Fitzpatrick on that. I am quite satisfied that if the Minister had the experience in the district courts that solicitors have from time to time he would feel that often difficulties arise which are not, perhaps, easy to solve and it is possible that feelings of anti-pathy or at least tension could arise from time to time. I feel that if an accused attends in court with his solicitor, whether the solicitor comes from Cork, Donegal or anywhere else —you may have a case of a man involved in a motor accident 40 or 50 miles from his home town and he may like to have a solicitor from his home town to defend him—there is the question of travelling expenses. I do not know whether the Minister means to allow travelling expenses or not. If he is allowing them there could be some difficulty but I do think that if an accused selects a solicitor and the solicitor is present in court, then it should be obligatory and the court should have no choice in the matter. If the Minister would put something into the regulations it would get out of the difficulty but I feel myself that it will create friction in certain cases between members of the profession if a regulation of that kind is not incorporated. Perhaps, he would agree to incorporate it in the regulations if he does not agree to amend the Bill.
Senator Nash in his last few sentences put his finger on the important point, that is, that as the Bill stands at present, there is nothing to prevent my framing the regulations to give effect to what Senator Fitzpatrick wants. The only difference between us is that Senator Fitzpatrick is proposing to write into the Bill a provision which would make it obligatory to do what he suggests is desirable. My approach is that we are embarking on something which is experimental.
I do not want to have my hands tied to any excessive extent. The Bill therefore provides for the making of regulations to govern the detailed operations of the scheme. Initially I do not propose that those regulations will envisage a complete freedom of choice to the accused but after the scheme has been in operation for a year or two it will be reviewed. During that review the manner in which it has been operating will be scrutinised and if it then appears that the danger to which these two eminent practitioners have referred is there, there will be nothing to prevent us from changing the regulations to give limited freedom of choice to the accused. I would not like, in the initial stages at any rate, to go as far as the two Senators suggest and I do not think we should write it into the Bill. For that reason I think the amendment could be withdrawn and the position obtain whereby the initial regulations would leave the final choice to the district justice, bearing in mind that the regulation will also provide that he should have regard to the wishes of the accused. But having listened to the accused, the final choice would rest with the district justice. I think that is a wise precaution to take initially. There is the danger that the habitual criminal would use this provision to delay the whole process of justice and make the scheme unworkable. I want to avoid that, in the experimental stage at any rate. I have every hope that district justices will operate this scheme sensibly, reasonably and fairly. There will, of course, always be associations, the powerful law society itself, to bring to the notice of the Minister for Justice any complaints which they may have in regard to the operation of the scheme. But I think that that is the right way to do it. I think that that is the right approach to have. I think that, initially anyway, until we see how this will work out, it would be wise to leave the final selection to the district justice. If that does not appear to work out satisfactorily, after a year or so, then we can consider what changes should be made.
I would respectfully invite the Minister to reverse the position. If he cannot see fit to accept this amendment and in the first regulation provide for limited free choice of solicitor and if that leads to abuses, which I certainly do not think it will —if that leads to abuses contemplated by the Minister—then it is time enough to depart from what has been the accepted privilege of the citizen in this country all down the years.
There is not much between us.
There is a fundamental difference.
I would again impress on the Minister the importance of incorporating in the regulations a provision to the effect that the accused should have a free choice of solicitor. If, as mentioned by the Minister, a complaint were made to the Law Society that a district justice had exercised improperly his right of assignment, such a complaint might not rectify the position as the solicitor might find it embarrassing.
I would visualise that the Law Society would accumulate a series of complaints and, on the basis of those complaints, would approach me not in relation to any particular case but as a general matter and state that experience of the working of this scheme was such that it was desirable that it should be amended. Naturally, I would have to have regard to such a responsible approach. There is not much between us now. I think we all agree that the Bill, such as it is, should be enacted. Therefore, we are discussing what should or should not go into the regulations.
I am trying to go more than half-way to meet the Minister.
The Bar Council's thinking in this regard is the opposite. They suggested to me—and I saw a lot of sense in it—that they, as the Bar Council, should have the right to veto and to decide upon the counsel permitted to go on the panel. In other words, they suggested that they should have the right to decide whether or not any barrister might put his name on any panel drawn up for a particular court or circuit under the Bill. Their thinking is along the same lines as my own—to the extent that there should be control in the initial stages. However, I do not mind promising Senators —I am afraid, weakly—that, when drawing up the regulations, I shall consider what they have said.