Dáil Éireann díospóireacht -
Tuesday, 20 Mar 1962

Vol. 194 No. 1

Committee on Finance. - Criminal Justice (Legal Aid) Bill, 1961—Committee Stage (Resumed).

SECTION 4.

Mr. Colley

I move amendment No. 11:

In subsection (1) (b), page 3, line 23, before "judge" to delete "the" and substitute "a".

This section is designed to provide that an applicant for legal aid, having made his application and secured his certificate, will subsequently be tried by the judge before whom he made the application. My amendment is designed to secure a better system of administration. It may be that the difficulty I am about to mention will apply mainly in Dublin, but it might apply in other parts of the country as well.

As I see it, the procedure will be that applicant will make his applicaation and, having been succesful, there will have to be an interval, during which he may, in consultation with his solicitor and counsel, prepare his defence. As the section stands, he will then have to come before the same judge. In Dublin, there might be difficulty in arranging that and it could lead to a carving up of the list. The procedure the courts would tend to adopt, if allowed to do so under the Act, would be to arrange special days for the hearing of legal aid applications, and then list the cases in the normal way. That is done commonly in Dublin in relation to types of cases that come up fairly regularly. Special days are set aside for certain applications.

Furthermore, it is, I think, highly desirable that the application for legal aid should be kept separate as far as possible from the actual trial. That, I suggest, can be achieved by my amendment, which will tend to separate the application for legal aid from the trial. The two are in character completely separate, one being an administrative act and the other a judicial proceeding. The objection may be made that the amendment is somewhat wide and could have the effect that an application for legal aid could be made in Cork in respect of a case to be heard in Donegal. If the Minister considers that is a valid objection, I suggest he has an easy way out of the difficulty and, if he accepts the principle, I shall be quite satisfied.

Mr. M.J. O'Higgins

Deputy Colley had similar amendments on an earlier section. I thought the amendment might have been directed to the drafting of the Bill, but I now see the force of the argument the Deputy has advanced. At first sight, I would certainly be prepared to recommend to the Minister that he should give it very careful consideration. As far as the courts in Dublin are concerned, the situation may arise quite frequently in which a number of different judges or justices, as the case may be——

Minister for Justice (Mr. Haughey)

This is Section 4. It is an appeal certificate.

Mr. M.J. O'Higgins

This section refers to the appeal certificate, but I am relating my remarks to the earlier amendment which was, in fact, not moved but which the Minister indicated he would consider. There was mention of the matter then in an offhand way from a drafting point of view. There is force in the argument put forward by Deputy Colley, particularly with regard to the district court in Dublin. There you have a number of district justices attached to the Dublin Metropolitan District. The same argument would apply to some extent to the Dublin circuit court where you have a number of different judges attached to the circuit court for the county and city of Dublin. It might very well be more convenient if the Minister were to leave the door open so that an application for a free legal aid certificate, either in the first instance or on appeal, could be made to a judge or justice, as the case may be, of the particular court. From the Bill, as drafted, it does appear that a person seeking a free legal aid certificate will be compelled to go before the particular judge or justice before whom he was tried.

I confess I did not appreciate the force of Deputy Colley's amendment until I heard him speak to it tonight. For that reason, I have not reasoned it out fully for myself, but, on the face of it, it does appear to me that on occasion, at any rate, there may be very valid reasons why it should be open to a person seeking a free legal aid certificate to go before a judge or a justice other than the judge or justice before whom he is to be tried. I urge the Minister to give very careful consideration to the point of view put forward by Deputy Colley.

Mr. Haughey

We are, I think, talking rather loosely here as between Sections 3 and 4. No matter to which section we relate this amendment, it is applicable, I think, only to the judge of the court before whom the person is to be tried. It refers to a person returned for trial and is, therefore, exclusively related to the circuit or central criminal court. In the case of the circuit court, of course, I think it could only have relevance in the case of Dublin because it is only in Dublin that we have two circuit court judges. Apart from that narrow application of Deputy Colley's proposal, I think it is undesirable in principle. Certainly, I do not mind having another look at it and giving it some further consideration, but it seems to me fairly obvious that the right person to decide on whether or not a legal aid certificate should be given is the judge who will be trying the case. Do not forget that under Section 3, and right through the Bill in the various sections, we place an onus on the judge, in deciding whether or not to grant the certificate, to have regard to all the circumstances of the case.

Mr. M.J. O'Higgins

Including the nature of the defence.

Mr. Haughey

If any. But surely it would be nonsensical to suggest that one judge, as Deputy Colley seems to indicate would be desirable, should have the duty of deciding the legal aid certificate issue and have to go into all the circumstances and then another judge would actually try the case. We have some knowledge of how this system operates in the North of Ireland and there it is exclusively the trial judge who decides whether or not the certificate be granted and the system operates very well there. I think that is the right way to do it. It seems to me to be the only way to do it, but I do not mind having another look at it and seeing whether or not we could assist the mechanical administration of the scheme by enabling other judges in certain circumstances to grant legal aid certificates, even though they were not trying the case. Frankly, I cannot see that any advantage would be gained from that. It is far more desirable that the trial judge, taking all the circumstances of the case into account, should decide whether or not to grant the certificate.

Mr. Colley

If I might be permitted to explain, the reason I was not here to move the amendment on Section 3 was that I was attending a meeting of one of the Committees of this House. Since the Minister referred to Section 3, might I point out that the reason there is no amendment down relating to the district court is that it seems to me that as the Bill is drafted, the Minister has accepted the principle involved here in the case of the district justice because Section 3 (b) states that where a certificate, etc., is:

granted in respect of him by the District Court,——

Mr. Haughey

"Upon his being returned..."

Mr. Colley

upon his being returned for trial...

It is not by the district court by which he is returned for trial; it is——

Mr. Haughey

The district court in that case means the district justice. These terms are interchangeable.

Mr. Colley

I do not think the section as drafted means that it must be done by the district justice who returns him for trial. I beg to differ from the Minister. That would not be my interpretation.

Mr. M.J. O'Higgins

In the definition section, justice means justice of the district court and in Section 3 the district court is referred to.

Mr. Colley

I think from the wording it can be done by any district court. I also suggest it is a very sound principle that we should endeavour to separate the trial from the application for legal aid——

Mr. Haughey

Why?

Mr. Colley

——and that anything that can be done to strengthen that principle should be done. The Minister referred to the circuit court in Dublin to which this would be applicable but the principle involved, in my view, should be extended to all the courts involved under this Bill. However, in view of the Minister's statement that he is prepared to have another look at this to see if he can assist on these lines, I shall, with the permission of the House, withdraw this amendment.

Mr. Haughey

I just want to say that I do not accept the principle that it is desirable to separate the granting of the legal aid certificate from the conduct of the trial. Deputy Colley has not advanced any argument in favour of that and I do not think there is any argument in favour of it. We cannot be wasting the time of the judges and have one judge, who is not trying the case, going into all the circumstances in order to decide whether a legal aid certificate should be granted, and then have a completely different judge deciding the case. That would lead to an administrative muddle.

Mr. M.J. O'Higgins

I should like to put this point of view before the Minister. There are circumstances in which it would be desirable, certainly from the point of view of the applicant, and if we regard it from the point of view of the applicant within the spirit of the Bill, we are talking about a case where it is regarded as being essential in the interests of justice, that a free legal aid certificate should be given. It seems to me that you may have cases— I am not trying to go in by a back door and have a discussion on Section 3— where it does become necessary for the judge to have regard to the particular defence which has been made.

It may be that one judge will make up his mind that having regard to a particular type of defence which has been put up, there is no merit in that and that he will not give a free legal aid certificate. Another judge may take a different view and feel it is only in an omnibus sense that he is required to have regard to the defence which is disclosed and that the major consideration in his mind is to be (a) the means of the applicant and (b) the seriousness of the charge which is being tried, and that, basing his decision on those grounds, irrespective of the nature of the defence, a free legal aid certificate should be given. It is quite conceivable that two different judges will have different approaches to those questions and there would be some merit anyhow, if it is not made a general rule. I appreciate the Minister's point of view with regard to taking up the time of the court but it seems to me that there may be occasions——

Mr. Haughey

Let me say that you might have a case where one judge grants a free legal aid certificate and the accused might come before another judge and perhaps plead guilty and then you would have gone to all this trouble.

Mr. Colley

He is not precluded from doing that under the Bill.

Mr. M.J. O'Higgins

It is possible something like that would happen but I do not think that is a complete answer.

Mr. Haughey

It would not be a complete answer if you could point out any advantage to it. I cannot see one.

Mr. M.J. O'Higgins

I think there are advantages. The advantages are principally concerned with the human nature of the people sitting on the bench.

Mr. Haughey

I have implicit faith in them.

Mr. M.J. O'Higgins

You may have different people taking different views. However, the Minister will look into it again.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendment No. 12 has been ruled out of order. I think amendment No. 13 was discussed with amendment No. 4.

Mr. Colley

Are we on amendment No. 13?

An Ceann Comhairle

I thought it was discussed with No. 4.

Mr. Haughey

No. 11.

An Ceann Comhairle

No. 11 has been disposed of. It was withdrawn. Amendment No. 12 is out of order.

Mr. Colley

Am I in order in requesting permission to withdraw all the amendments on the same basis?

An Ceann Comhairle

They can be withdrawn when we reach them. Amendment No. 13 is not moved.

Amendment No. 13 not moved.

An Ceann Comhairle

Amendment No. 14, in the name of Deputy Sherwin, is out of order.

Mr. Sherwin

On a point of order, accepting that it is out of order because it suggests expenditure, would it become in order if the Minister accepted it? If the Minister said: "Very well; I accept the idea," then, would it not be in order?

An Ceann Comhairle

That is a different thing altogether.

Mr. Haughey

The Deputy is free to talk on the section.

Mr. Sherwin

I shall. I hope to convince the Minister.

An Ceann Comhairle

The Deputy may not move the amendment.

Mr. Sherwin

If it is out of order, there is no sense in moving it.

Amendment No. 14 not moved.

Amendments Nos. 15 and 16 not moved.

Mr. Haughey

I move amendment No. 17:

In page 4, line 1, to delete paragraph (b) and to insert the following paragraph:

"( ) to the court itself,".

This amendment is put down to meet a point by Deputy O'Higgins. Indeed, he has put down a similar amendment, amendment No. 18. The purpose of my amendment and of Deputy O'Higgins's amendment is to ensure that the application for legal aid in the Appeal Court may be made by the applicant's legal representative. It was always our intention that the application need not be made by the accused himself but by his legal representative on his behalf. The reference in the section as it stands is "(b) in person to that court." In case that might lead to any misapprehension, my amendment proposes to alter that to read "( ) to the court itself,". I think that will make it clear that the application need not be made in person but can be made by the legal representative of the accused on his behalf.

Mr. M.J. O'Higgins

I appreciate that the Minister has brought in this amendment to meet the point raised by me in connection with this matter on the Second Reading. I do not want to be churlish about it but I am not entirely sure the Minister has met the point. Section 4 (3), if we incorporate into it the Minister's amendment, then reads

Where a person is, on being convicted of an offence, refused a legal aid (appeal) certificate, he may apply

——that is, the person who has been convicted——

for the certificate to the court to which an appeal from the conviction lies either—

by letter addressed to the registrar of that court setting out the facts of the case and the grounds of the application,

—there again, it is the person who is convicted who may apply by letter addressed to the registrar—or, coming to (b) and reading into it the Minister's amendment,

to the court itself.

It is certainly open to the construction that the Minister's amendment is not making any difference and that it still must be an application by the person himself. We have not come to it yet but the next amendment, amendment No. 18, in my name, is put down to try to meet the same point.

With all due diffidence and modesty, I suggest that if the Minister accepts my amendment, rather than his own, the position becomes crystal clear. My amendment seeks to add a subparagraph saying that the application may be made by the solicitor or counsel for the applicant. Then you would have the position that it could be made by a letter addressed to the registrar or by the applicant himself in court or by the applicant's solicitor or counsel. Then there would not be any room whatever for doubt. It could be met in any of these three ways. It may well be that the Minister's advice is correct that his amendment meets the point. I think it is open to doubt. I should be glad if the Minister would look at it again.

Mr. Haughey

Like myself, Deputy O'Higgins is a perfectionist. In these matters, I must have regard to the niceties of drafting and consistency of phraseology throughout the Bill. I am assured that this achieves what we want to achieve and, at the same time, preserves the consistent phraseology throughout. I think Deputy O'Higgins is overlooking the point that a solicitor in court may represent anybody or that anything an individual is permitted to do in court can be done for him by a solicitor. That is the normal practice and procedure of the courts. By removing the words "(b) in person to that court" and substituting "( ) to the court itself," I think we are achieving exactly what we want to achieve.

Mr. M.J. O'Higgins

What is the objection to writing in the Bill——

Mr. Haughey

Consistency and phraseology.

Mr. M.J. O'Higgins

——that the applicant's solicitor or counsel may apply?

Mr. Haughey

Unnecessary.

Mr. M.J. O'Higgins

The Minister is aiming at achieving a position where it is beyond doubt, on the reading and construction of the Bill, that the application may be made by the solicitor or counsel for the applicant. I may be over-simplifying it. It seems to me that the easiest way of making that crystal clear is to say so and if we do not then we are leaving it open to doubt.

Mr. Haughey

If you say so specifically you cast doubt on all the other statutes where this applies.

Mr. M.J. O'Higgins

It does not apply in any other statute.

Mr. Haughey

It applies where persons may make applications to the court for this, that and the other thing, throughout the whole process of the law. It is clearly understood and it is the practice and procedure that, anywhere an individual can do these things, he can do them also through the machinery of his legal representatives. If we were to put it in here and spell it out in black and white that it can be done in person or by his solicitor or counsel then you would cast doubt that in all these other cases it might not be lawful to have representation by solicitor or counsel.

Mr. M.J. O'Higgins

I do not think that is any great difficulty, with respect. No real difficulty does exist in that regard. I cannot offhand quote chapter and verse but I have a strong impression that in a number of our Acts it is stated that a person may move through his solicitor or counsel.

Mr. Haughey

Take an application for a dance hall licence or a special exemption.

Mr. M.J. O'Higgins

As often as not, the phrase used is "a person may cause application to be made". If the Minister looks up, for example, the Circuit Court rules in relation to Malicious Injury applications he will see that is the type of phrase used. The notice of application, for example, must be signed by the applicant or by his solicitor. The applicant must cause notice to be given to the local authority, the Gardaí, and so on. The expression used is that the applicant causes it to be done. That leaves it open to being done on his behalf by his representative. However, if the Minister feels there is any real difficulty there—and I do not agree with him that there is—I think it can be removed equally simply by inserting a short sentence into this Bill to say it does not prejudice any earlier Act.

Certainly if the Minister accepts my suggestion, he is making the position crystal clear. It seems to me that, while he is aiming at doing the right thing he still leaves it open to doubt. I do not think it can be said too often in this House that what we do here is open to construction and interpretation by the courts which must have regard to what is written into the Act, not to anything the Minister or anyone else may say in explanation of the measure as it passes through the House. The courts may not have any regard to any remarks the Minister may make or any explanations issued by means of a White Paper.

Mr. Haughey

Deputy O'Higgins is asking the House to believe that a solicitor or counsel cannot represent a client unless the Act specifically says so. That is the doubt he would throw on this and on hundreds of our statutes and Acts of Parliament—that anywhere it was not said an application could be made to the courts by a solicitor or counsel on behalf of a client, that application would have to be made in person.

Amendment agreed to.

An Leas-Cheann Comhairle

I suggest that amendments No. 18 and No. 21 be taken together.

Mr. M.J. O'Higgins

I have, in fact, made my point of view clear with regard to amendment No. 18. I do not know quite what the position is but having accepted the Minister's amendment No. 17, there is not much point in amendment No. 18 going into the Bill even if the Minister accepted it. In reference to amendment No. 23, the Minister's amendment No. 22, is a repetition of the same argument. I am prepared to accept the Minister's amendment No. 17 and later on amendment No. 22, though I do so with some reservations.

Amendment No. 18 not moved.

The following amendment appeared on the Order Paper:

In subsection (3) (ii) (II), page 4, line 10, to delete "essential" and substitute "advisable".

An Leas-Cheann Comhairle

Amendment No. 19, in the name of Deputy Colley, has been ruled out of order.

Mr. M.J. O'Higgins

Might I ask the reason for that?

An Leas-Cheann Comhairle

It has been adjudged out of order under the terms of Standing Order No. 115 as it tends to impose a charge on State funds. I understand that, if this amendment were carried, it would have the effect of relaxing some of the conditions in relation to the provision of some legal aid.

Mr. Haughey

Deputy O'Higgins wants me to admit again that this would limit the Bill.

Mr. M.J. O'Higgins

It does seem we should concede that if it is advisable to give free legal aid we are unduly expanding the Bill——

Mr. Haughey

I have bared my breast to the House and have explained that I agree there is this limitation in the Bill—that we are confining it initially to cases where it is essential.

Mr. M.J. O'Higgins

Does the Minister mean there will be cases where it is advisable to give free legal aid?

Mr. Haughey

Where it might be advisable.

Mr. M.J. O'Higgins

Where it will be advisable. That is what Deputy Colley wanted put in. Is the Minister arguing that there will be cases where it will be advisable to give free legal aid in the interest of justice but that he would say it would not be essential?

Mr. Haughey

An ideal social system would give it in every case where it was advisable, but we must cut our cloth according to our measure.

Mr. M.J. O'Higgins

Will there be cases where it is advisable to give free legal aid but we will not do it?

Mr. Haughey

Where it might be advisable.

Amendment No. 19 not moved.

Question proposed: "That Section 4, as amended, stand part of the Bill."

Mr. Sherwin

I put down two amendments, one to Section 3 and the other to Section 4. I can understand the Minister's reluctance to accept my amendment to Section 3 because of the large number of cases it might involve. I asked him the number of convictions in certain years and the reply was that in 1960-61 the number was 99,508. I take it there were as many more cases before the courts where there were no convictions and I can well see the Minister would not be anxious to involve the House in providing free legal aid for over 200,000 cases.

However, in Section 4 I cannot see why the Minister cannot accept my amendment which affects only persons who have been convicted and who might require legal aid on appeal. It is a very serious matter to be convicted of an offence. In Section 3 my amendment referred to any person appearing in court which might include people involved only trivially. In Section 4, however, I am dealing with people who have been convicted. It is then that the thing becomes a serious matter and I am asking that the question of the seriousness of the offences should not be left in the hands of judges or justices—that they should not be given the power of deciding whether or not free legal aid should be granted.

I am putting it to the Minister that any conviction is a very serious matter, that it is not a question for interpretation by the Bench. A person convicted is a criminal and has a stigma for all time. He is likely to lose, among other things, his employment and reputation. What I am asking in this section is that he is afforded the means, if he applies, of getting legal aid and that it should not rest with the judge or justice to decide whether the matter is serious or not.

In the cases where a number of people are charged together, there is great danger that incrimination might result for one of the group who might be innocent. One of these persons might be convicted in the first instance when he had not recourse to legal aid. He may have been at a disadvantage in that respect and legal aid on appeal might result in his being declared innocent. Take the case of a number of children. They see a purse on the strand and one of them pinches it. They are all charged but surely only one of them is guilty? They are tried together and, without solicitor or counsel to cross examine, all they can do is stand there with their mouths open.

The point I am making is that whatever excuse the Minister might have for not providing free legal aid in respect of a person being accused in the first instance, once that person is convicted it becomes a serious matter and he should have the right of free legal aid on appeal. Imagine a person not having legal aid in the first instance and being convicted and then appealing and not having free legal aid on the appeal. The conviction is bound to be affirmed.

In 1960/61 the number of convictions in the Circuit Court was only 143 and the number of convictions in the Central Criminal Court was only 19. People who are convicted in those courts are convicted of more serious offences than in the district court. The evidence shows that a large number of persons are convicted in the first instance and the sentence is reaffirmed on appeal and in neither case have they legal aid. There is bound to be a miscarriage of justice. I am no expert but I am interested in legal matters and I have read a lot of books on briefs to counsel and on Marshall Hall and all that kind of thing and it is laid down in these books that a great proportion of the cases that go to court can be either won or lost.

There are some cases that are certain to fail and there are some that must be won largely depending on the ability of the solicitor and counsel in those cases. If you accept that there are cases that can be won or lost, then it is sticking out a mile that if a person has no legal aid he is going to lose his case. In all cases of appeal a person should be given legal aid where he has not had it in the first instance. I am satisfied that there are many cases of miscarriage of justice.

I will prove my point. I was summoned for having a radio without a licence. I had no licence but, nevertheless, I had a little savvy which the other people in the court did not have. They were all fined 10s. or £1 but I was not fined because I could defend myself. I asked the prosecution witness did he see the aerial. He had to answer that he had not because he had never gone out into the yard to see it. I also asked did he make sure that what he thought was a radio was not an empty cabinet and he had to say that he did not. I asked him did he see any mechanism connected to the wooden box and he said he did not and the justice said the case was out. All the other people were fined 10s. or £1 and I was as guilty as they were but I was not fined.

I am quoting that to prove my point that legal aid is essential. If I had not been able to speak for myself I would have been convicted. I am putting it to the Minister that if he cannot give free legal aid in the first instance he must at least give it in cases of appeal. It would be a grave miscarriage of justice to have people convicted and these convictions upheld on appeal if they have not got legal assistance. The average person is overawed by the court and is at the mercy of the State Solicitor or the Garda both of whom know the ropes very well. I will again ask the Minister to give free aid in the case of appeal.

Mr. P. O'Donnell

There is one matter worrying me about this section and it is linked up with Section 2. Subsection (b) of Section 2 says that legal aid may be granted if it appears necessary to the district court by reason of the gravity of the charge. The expression—"gravity of the charge"—is what worries me and that applies also to the appeal.

Mr. Haughey

We have discussed that at some length already.

Mr. P. O'Donnell

I know we have but it also applies under Section 4. I would rather see the Minister confine the cases in which free legal aid may be granted to cases where there is a fixed penalty or a possible fixed penalty. I know that district justices take different views of the gravity of the offence. I know one district justice who, in a case of drunk and disorderly, will impose a fine of £2 but, immediately the prosecution witness says "he used a particular offensive word," it is two months hard labour right off the reel. I am speaking from experience. Who is to decide the gravity of the offence?

Mr. Haughey

The district justice.

Mr. P. O'Donnell

You generally appeal against the sentence admitting the facts. Everybody knows it is a matter of going before the circuit court, pleading guilty, admitting the facts and stating the circumstances. The circuit judge immediately reverses the penalty and imposes a fine of £1, £2 or £3. It depends entirely on the outlook of the justice as to what is the gravity of the offence.

We all know that when the last Intoxicating Liquor Act became law, justices were clamping on fines of £25 right off the reel. They have dwindled away to £3 now and we are back to the old system. Two or three convictions under that Act could be very serious for an individual. I think we should not leave it to their discretion even on appeal. We should have something more concrete than the decision of a justice as to the gravity of an offence. I know certain parts of the country where an offence under the Road Transport Act can be very serious. Take County Sligo where Deputy Gilbride comes from.

Mr. Gilbride

Drunken driving.

Mr. P. O'Donnell

Under the Road Transport Act, even a first offence related to carriage of goods for reward automatically carries a fine of £25. The case may be in the balance but one justice may decide to convict, and the fine is £25. We now know what happens under the Road Traffic Act. Far be it from me to criticise our juries, but I said in this House that once we made death resulting from an accident so serious an offence that it had to go before a judge and jury, we would get very few convictions. To my own knowledge, there have been at least six such trials, and I was personally involved in one, but there was not a solitary conviction. Not only is the charge of causing death to the unfortunate person who has been killed left to the jury, but it is also left to the jury to decide whether the defendant or the accused was driving in a dangerous manner. Juries, afraid of the consequences when death may have been caused purely accidentally, will not convict a defendant even of careless driving.

I welcome this Bill. It is a step in the right direction, but we should not start off on the wrong foot. I do not think we should leave it to justices to decide what offence is sufficiently serious for legal aid to be granted. Justices differ.

Mr. Haughey

Cases differ.

Mr. P. O'Donnell

I agree that cases differ. I pointed out the example of the justice who, once he hears of a bad word being used by the defendant, says: "Drunk and disorderly: jail."

Mr. Haughey

Appeal.

Mr. P. O'Donnell

It is all right to appeal, but when an appellant goes before a judge and says he is appealing against a sentence imposed by a district justice, the judge looks at him in that innocent way and says: "It is the district justice of district No. so-and-so——"

Mr. Mother

He is not worried about his vocabulary.

Mr. P. O'Donnell

No. We all know that a drunk man will use bad language but he has no malice afore-thought.

Mr. Tully

The sober ones use it, too.

Mr. P. O'Donnell

Usually, if they do, they do it out of malice, but a drunken man is liable to use language which he would not normally use and you will find justices who will impose a jail sentence for what I really can describe as an offence arising out of intoxication, and with no malice aforethought. It would be very wrong indeed to classify that as a grievous offence. There may be so many such cases that the Bill will not be the success we would all like it to be.

Mr. Haughey

If the district justice regards it as a serious offence, he will have to give free legal aid.

Mr. P. O'Donnell

I know certain districts where appeals are granted very often indeed. We might defeat the purposes of the Bill and I would prefer to see legal aid granted where the penalty for a grievous offence was a serious one. A charge which appeared to be a grievous one might fizzle out under the Probation Act when the defence was unravelled. For legal aid purposes, if there were a minimum penalty of £40, or if the conviction carried a jail sentence, we would be doing much more for the unfortunate defendant than we are doing at present.

I have had considerable experience of free legal aid across the water and at the moment we are not going anywhere near it. I do not suggest to the Minister that we could afford to.

They have free legal aid, in civil actions and in criminal actions. It is not a trial judge—this has probably been argued or pointed out here earlier—who decides whether the defendant is entitled to free legal aid or otherwise. A committee of the Law Society first inquire into the means of the defendant or the plaintiff, as the case may be. They inquire prima facie into his right of action before they decide, but here we are throwing onto the trial judge a sort of pre-trial judicial function to decide whether there is sufficient evidence, and whether the charge is serious enough, without hearing the defence or, as Deputy McGilligan points out, the defendant having disclosed his evidence at a certain stage.

What worries me about Section 4 is that you cannot construe it without first having construed Section 2, which sets out that the gravity of the offence is left to the district justice to decide inter alia, and whether you are entitled to legal aid to appeal from his own decision. Again, to look at it from a different angle, an offence may appear to be serious but when the defence is unravelled the district justice may apply a nominal penalty, but that nominal penalty on a particular defendant may carry as great a stigma as a conviction and jail sentence for habitual drunkenness may carry for another person. It depends on the outlook of the defendant.

For example, a gentleman who is a very careful driver would not like to have recorded against him a conviction for dangerous driving, irrespective of whether it carried a penalty of 1/- or a jail sentence. That might be very serious to him, whereas to an old lag 14 days' hard labour means nothing. It means going back to renew old acquaintances——

Mr. Gilbride

A holiday.

Mr. P. O'Donnell

Exactly. If the Minister would look at the section between now and Report Stage, he might be able to do something which would benefit the type of defendant to whom I have referred.

Mr. Colley

On Section 4, as amended, there are two matters to which I want to refer. The first is the use of the word "essential". I put down an amendment to this section but it was ruled out of order. That amendment provided for the use of the word "advisable". I am not terribly enamoured of the word "advisable" but I have the gravest misgivings about the word "essential" in this context. The section provides that legal aid will be granted only if it is considered by the court to be "essential" in the interests of justice. I suggest that word will have to be interpreted by the court and that, on strict and perhaps correct, interpretation, it would mean that you could never really decide that legal aid was essential to a case until the case was finished. You could only guess beforehand and it is obvious that the interpretation of the word will vary from one judge or justice to another.

Furthermore, it seems to me that if we try to cover cases where it is essential in the interests of justice that legal aid be given, then we are trying to cover cases in which we are saying: in the past, there has been a miscarriage of justice in each of these cases because in the interests of justice, it was essential to have free legal aid but there was no free legal aid. It seems to me that to interpret the matter that way, as you must on the word "essential", you may upset the whole basis of the Bill. You may end up by having, on the one hand, judges or justices interpreting it so strongly that no one coming before them will get any free legal aid and on the other hand, because of the impossibility of interpreting this word "essential" accurately, you may have judges or justices more or less glossing over the word and treating it as something that gives them considerable latitude.

To me, it seems it would be much better if the Minister could substitute another word for "essential" that would convey the idea of advisable, although it may be that the word "advisable" is not the best one.

The other matter to which I shall refer is in connection with subsection 3 (a) where the procedure is laid down that application for free legal aid may be made by letter addressed to the registrar of the court. I do not know what the Minister can do about this in the regulations but I am anxious that he should see as far as possible that this does not degenerate into a question of letters to the registrar being dealt with by the registrar and rubber-stamped by the judge or justice. So far as the Minister can do anything about that, I urge him to see that does not happen.

There is another matter of procedure on which I am not very clear. Where a person applies by a letter to the registrar, say, in the case of the Court of Criminal Appeal, where you have three judges, what is to happen in considering this? Are the judges to sit together to consider the application through the registrar or, are they to sit in public or in private?

Mr. Booth

I should like to support Deputy Colley on his first point, particularly because I agree with him that the word "essential" is certainly not the best.

Mr. M.J. O'Higgins

It is inadvisable.

Mr. Haughey

We want a word which means advisable but which is not "advisable"

Mr. Booth

What we want is to make sure that there will be some consistency——

Mr. Haughey

How can you be sure of that if every word has to be interpreted?

Mr. Booth

I think "advisable" is much easier to interpret than "essential".

Mr. Haughey

It is not. It is far looser.

Mr. Booth

If the Minister would refrain from -contradicting me and let us concentrate on the matter, we might make a little more progress. If a judge decides it is essential in the interests of justice that free legal aid should be given, surely that can only mean that the judge will consider the matter and say: "Unless this man is given free legal aid, he must be convicted." Surely that is the only possible interpretation: the man is already convicted unless he gets free legal aid? That is a ludicrous situation to envisage in a Bill such as this. We have already said that a man is convicted if he does not get legal aid but I do not believe that is what we mean or what is intended. What we should be trying to do is to ensure, so far as possible, that wherever the judge feels there is reasonable doubt as to whether an acquittal will result, unless there is free legal aid, he must then give a certificate.

Mr. Haughey

That means he must prejudge the whole trial?

Mr. Booth

We are getting pretty near to that and I am glad that the Minister appreciates it.

Mr. Haughey

That is what the Deputy is suggesting.

Mr. Booth

I think we are putting the trial judge in the position of prejudging the whole issue. What we should really be trying to do is to enable him to say: on "prima facie perusal of the case as it appears before me, it seems to be advisable, by reason of the complexity or seriousness of the offence, that this man should have free legal aid.” But to say it is “essential” would, I think, put the judge in the position as outlined by Deputy Colley where a very strict legalistic approach would almost certainly lead to the refusal of a certificate, while a more humane approach would force the judge to interpret “essential” as advisable.

I ask the Minister to consider the matter between now and the Report Stage because there is a very fine issue of principle here. I do not want this business to get so much out of control financially that it would collapse. I do not really believe it will lead to a great increase, if in fact there is any increase, in costs, but it will give a greater uniformity in the decisions which will be given.

Mr. M.J. O'Higgins

I do not want to delay on this but I should like to join with Deputies Colley and Booth on this point and ask the Minister to consider it further. It seems to me that if the word "essential" is used we are putting the judge or justice in the position in which he must say: "Justice will not be done unless free legal aid is granted"——

Mr. Haughey

Exactly.

Mr. M.J. O'Higgins

——and that he must make up his mind to that. The Minister says "Exactly" to me but he contradicted Deputy Booth. What I am saying is what Deputy Booth said in another way——

Mr. Haughey

No; the Deputy is not.

Mr. M.J. O'Higgins

——because the justice must say: "Justice will not be done unless free legal aid is granted" which means that unless free legal aid is granted, there will be a miscarriage of justice which, in the case of an innocent defendant, means that unless free legal aid is granted, there will be a conviction. That is exactly the point that Deputy Booth made.

Mr. Booth

Or tried to make.

Mr. Haughey

Deputy Sherwin made some comments on this section with which I should like to deal. First, I should like to point out to him the large number of cases that are dealt with in the district courts and he agrees with me, I think, that we could not possibly contemplate giving free legal aid in all these cases because Deputy Sherwin must realise that if we were prepared to give free legal aid in every case where there was an appeal, then every case would be appealed.

Mr. Sherwin

You must take that chance.

Mr. Haughey

It is a decision I am not prepared to take at this stage. It is as important to retain limiting words such as: "by reason of the serious nature of the offence..." in appeal cases as in the original trial. Even the case Deputy Sherwin quoted, that of five parties being involved in one theft, could be regarded as coming within the ambit of the section. The justice in this case could regard that as being of a serious nature or take the view that there were exceptional circumstances. Even in that case it is quite feasible the district justice would allow free legal aid on appeal.

I want to point out to Deputy O'Donnell and others that in this Bill we are at least giving free legal aid on appeal from summary courts which is not the case at all in the North of Ireland; indeed it was not the case in Britain for a very long time. When the scheme was introduced in Britain, legal aid was not given on appeal, nor is it given in Northern Ireland as the scheme operates there now. Therefore, we are at least going that stage ahead. Until we see how the scheme works, it is essential to keep these limiting factors in respect of the appeal——

Mr. M.J. O'Higgins

It is hardly essential; it may be advisable.

Mr. Haughey

It is essential from the point of view of the public finances. If we keep on discussing this "essential" and "advisable"ad nauseam, then free legal aid for everybody will be delayed to a very considerable extent. Deputy Colley wants some word which means “advisable” but is not “advisable”. I have already indicated that the word “essential” here is inserted deliberately and that, in my opinion, it is necessary at this stage. I agree that it would be a far finer thing if we could give free legal aid in every case or in every case where it was not essential but merely advisable, but I have already said that the resources at our disposal for social schemes of this nature are limited. We think the right thing to do at this stage is to give free legal aid only in cases where it is essential. Later on, if we find our experience of the scheme indicates it is possible to do so, we can consider being a little more generous or extending the scheme.

It is no good attacking me here on this point. As Deputy O'Donnell has said, this is a step forward. There was nothing there before and just because it is not everything that everybody wants, it is unreasonable for Deputies to launch this attack on the scheme. I have been absolutely open and frank with the House. I have told Deputies several times already that this is a limited scheme and I have explained the reasons why it is limited. Surely Deputies can accept that and let us go on from there.

Deputy Booth and Deputy Colley seemed to be worried about the fact that different interpretations would be placed on the word "essential". That may be, but surely if that is a defect, that defect applies to every Act of Parliament we bring in here. Every Act of Parliament is liable to be judicially interpreted and if we were to regard that as a defect, we would not pass any Acts of Parliament at all. It seems to me that "essential" has at least this advantage: it is clear-cut; it means one thing and nothing else, whereas "advisable" is subject to a whole range of interpretations and would certainly be capable of meaning different things to different people.

However, I am not worried if district justices or circuit court judges, for that matter, interpret this thing differently. One district justice may be more liberal than another. That is inevitable in any scheme of this sort, but, in answer to Deputy O'Donnell, the right people to interpret this are the judges. Most Deputies would agree with me that flexibility is desirable. It has been said here several times in this debate that what is a serious charge for one man may be a comparatively light charge to another. It would take a very peculiar set of circumstances for a charge to be a serious one for habitual criminals, whereas to be charged with a comparatively minor offence would be a very serious matter for a person who was never in trouble before. It is essential that we leave the matter to the good sense of the justices and judges and I feel confident that they will see what we are trying to do in this scheme and interpret it intelligently. If we cannot count on that, then we can throw our hats at the whole judicial process.

As regards the question raised by Deputy Colley whether the Court of Criminal Appeal will be three or will sit in camera or otherwise, I can only say it is not for me to settle the procedure of the Court of Criminal Appeal. I am quite certain they will settle their own practice and procedure in their own way and it is not at all necessary for the Bill or for me to indicate in what way they should conduct their courts. With regard to the question of the letter addressed to the registrar, I can only ask: to whom else should it be addressed? Is he not the appropriate officer of the court to receive all these communications? I could not possibly undertake to supervise the working of the courts to the extent of seeing to it that the registrar passes on all correspondence in the proper way to the judge or justice.

In reply to Deputy Sherwin—I know he has a very honest approach to this Bill—may I say we are doing the best we can at this stage? We visualise that this scheme will work for a certain period and at the end of the period, we shall review it. We shall see what it is costing and whether the money devoted to it could possibly be more appropriately diverted to other purposes or whether more money could be diverted to this scheme. Let Deputies not forget that any money voted from the Exchequer to this piece of social reform has alternative uses. It could possibly be given to increase old age pensions.

Mr. Sherwin

Would the Minister tell us something about means? What means can a person have in order to be regarded as having no means?

Mr. Haughey

Again, I think that should be left to the district court. The only requirement we are laying down is whether he can meet the costs out of his own resources.

Mr. Rooney

Like the blue card.

Mr. Haughey

There is no question of a means test. The simplest possible amount of information will be given to the district justice or the judge as the case may be and on that basis, having regard to the circumstances of the case, he will decide whether or not the person should meet the costs of his defence. That is the basis on which free legal aid will be considered.

Mr. Sherwin

Every conviction is a serious matter for the man convicted.

Question put and agreed to.

Progress reported; Committee to sit again.