I move that the Bill be now read a Second time. The object of this Bill is to introduce a scheme of free legal aid in certain criminal cases. It involves a radical departure from the present arrangements which allow free legal aid only to poor persons accused of murder and also in certain cases where a new trial is ordered by the Court of Criminal Appeal or the Supreme Court. Although the scheme is new, and therefore to some extent experimental, it is comprehensive in character and provides not only for legal aid in criminal courts of first instance but also in the various courts of appeal. In this respect we are departing from normal precedent as both the British and Northern Ireland schemes, when introduced, contained no provision in relation to appeals from summary courts by way of case stated or otherwise. In fact, this is still the position in Northern Ireland though a recommendation by the Steele Committee there to extend the scheme to these appeals has been accepted in principle. The Government have considered it advisable to commence with a scheme that is as comprehensive as possible in our particular circumstances.
Although the provisions of the Bill have necessarily to be formulated to deal separately with all the various cases in which legal aid can be made available and are therefore somewhat lengthy, the main features of the scheme can be stated fairly simply. A person who cannot afford to be legally represented and who is charged with any offence before the District Court may, by reason of the gravity of the charge or of exceptional circumstances, be granted by the Court a certificate which will entitle him to the services of a solictor and, where he is charged with murder and the Court thinks fit, of counsel. Any person returned for trial for an indictable offence and who cannot afford legal representation may also be granted free legal aid in the preparation and conduct of his defence at the trial and have a solicitor and counsel assigned to him for that purpose. Such a certificate may be granted either by the district court when the accused person is returned for trial, or by the trial judge. It will be granted in murder cases merely on the ground of insufficient means; in other cases regard must also be had to all the circumstances of the case, including the nature of any defence that may be set up. In appeal cases, legal aid will be provided for persons of insufficient means in offences of a serious nature or in exceptional circumstances.
The grant of legal aid is subject to the overriding consideration that it must appear to the court to be essential in the interests of justice, having regard to the factors I have mentioned in relation to the various kinds of criminal proceedings, that the accused should have legal aid in the preparation and conduct of his defence or of his appeal, as the case may be. It will be seen, therefore, that the court is being given not only responsibility for determining whether the means of a person are insufficient to obtain legal aid but also a wide discretion in determining in what cases it is proper to allow free legal aid.
I think there will be general agreement on the necessity for having a scheme of this kind. It is unfortunately true that miscarriages of justice can take place under the present system because accused persons are unable to afford legal representation. It is impossible, in the nature of things, to say definitely how often, or how seldom, a miscarriage of justice occurs for that reason but I believe the number of genuine miscarriages of justice in this country is not substantial. I base my belief on the voluntary contribution which the legal profession has made by supplying proper representation in deserving cases and on the high standards which our judges and justices have consistently maintained in ensuring that accused persons who are not legally represented are treated with scrupulous fairness. Notwithstanding that the amount of serious injustice arising from the absence of legal aid is not substantial, the present position may entail serious hardship, including perhaps loss of liberty, to individual citizens and for this reason alone it is desirable to have a legal aid scheme.
The situation does not, however, call for the grant of free legal aid in every criminal case or even in serious criminal cases where, as so often happens, there is no difficulty about the facts or about the law applicable to them. For example, free legal aid could not be justified in the case of experienced criminals—and there are quite a few of them—who have deliberately decided to make a living of crime. These criminals frequently continue to commit burglaries and house-breakings even while on remand in the expectation, which no doubt is often realised, that their activities may not be discovered or, if they are, that the sentence they will eventually receive will not by any means be proportionately greater. They are sufficiently well versed in the intricacies of criminal procedure not to require professional legal services at public expense. At the same time I realise that the possibility of some exceptional circumstances which might make it essential in the interests of justice to provide free legal aid even to criminals of this sort cannot be completely excluded.
Accordingly, the scheme provided for in the Bill does not propose to allow the grant of free legal aid in any indiscriminate fashion. The courts will have the responsibility of examining each case—except where criminal appeals are permitted to be taken to the Supreme Court and where a point of law of exceptional public importance is bound to be involved—to see whether having regard to the particular circumstances it is essential in the interests of justice that free legal aid be provided. I have no doubt that the courts will interpret these provisions in a common sense manner just as similar provisions have been interpreted in Britain and Northern Ireland. In this way genuine miscarriages of justice will be prevented and the grant of legal aid will be confined to serious cases of real doubt or difficulty.
As the Bill is essentially an enabling measure, I think I need refer particularly only to the provision about regulations in Section 9. Somewhat elaborate administrative arrangements will be necessary to provide for the coming into operation of the scheme. The forms of the various certificates and the manner in which solicitors and counsel are to be assigned pursuant to them will have to be prescribed. Details of these administrative arrangements are at present being worked out but I can say that, as regards the assignment of solicitors and counsel, a list will be prepared in each court of solicitors and counsel who are willing to undertake the defence of persons who have been granted legal aid certificates.
It will be a matter for the justice or judge, as the case may be, to assign a solicitor from the list but he will be required to take into consideration any representations which the prisoner may make. Any member of the Bar whose name appears upon the list kept in the court may be instructed on behalf of the prisoner by the solicitor who has been assigned.
Fees will have to be prescribed for professional work done under the scheme and I have received representations from the Law Society and the Bar Council on the matter. I am giving careful consideration to these representations. I have been assured by the Law Society and the Bar Council of their desire to co-operate in making this scheme a success and I am sure that it will be possible, with the co-operation of both professions, to minimise any initial difficulties that may arise in the early stages of its operation. I have already had a preliminary discussion with the Law Society and I expect to discuss the scheme with the Bar Council very shortly.
Before concluding, I should like to say a word about another matter which may be present in the minds of some Deputies in connection with this Bill. I refer to the suggestion which has been made from time to time that the costs of defendants who are acquitted should be met from public funds. The suggestion is not that costs should be paid from public funds in all cases of acquittal because, quite obviously, a dismiss or a verdict of not guilty does not always, or even often, mean that the acquitted person is entirely innocent of the charge but rather that the charge has not been proved. What is in mind is that there should be discretion vested in the court which dismisses the case or acquits the defendant to award the costs of the defence, it being understood that this discretion would not be exercised except in a most exceptional case, such as, for example, a case of mistaken identity or where it was clear that a prosecution should never have been brought. In my opinion, the suggestion is worthy of serious consideration, but I do not think that, even if it were accepted, it would be appropriate to give effect to it in this Bill and I intend to await some practical experience of the operation of the present scheme before considering the matter further.
A second related matter is the question of providing a system of legal aid and perhaps also legal advice in civil cases. This proposal is one that could not be embarked upon without detailed investigation. Such a scheme would be costly: in Northern Ireland the cost has been estimated to be in the region of £90,000. Here again it is obvious that we must wait until experience has been gained of the operation of the criminal legal aid scheme here before exploring the possibilities of embarking on a scheme of civil legal aid and advice.
This is a piece of social legislation which will, I think, be acceptable in principle to all sides of the House. Any suggestions that Deputies may wish to put forward for the improvement of any particular aspect of it will be welcomed by me and will receive careful consideration before the Committee Stage.