Vol. 194 No. 9
I move amendment No. 1:
In page 2, between lines 27 and 28, but in section 2, to insert the following subsection:
"( ) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable."
This amendment is in the nature of a removal-of-doubts provision to make it clear there is to be no appeal from the decision of the district court either granting or refusing an application for legal aid in proceedings before that court.
I move amendment No. 2:
In page 2, line 34, after "to be" to insert "or is being".
I suggest the House might agree to discuss Nos. 2, 3 and 4 together. The object of these amendments is to make it clear that legal aid can be allowed by the trial judge after the trial has commenced: The words "to be" as they originally appeared, might possibly be interpreted to mean otherwise. We want to make it absolutely clear that an application can be made at any time during the trial. We would not envisage that application would normally be made otherwise than at the commencement of the trial but it might happen that the judge would wish during the course of the trial——
It might happen that the person's circumstances would alter tremendously in the process.
Even that.
Having regard to the first amendment, he could not do it. May he go back and vary his own order?
Amendments Nos. 2, 3 and 4 refer to applications during the course of proceedings themselves.
I appreciate that, under these amendments, if no application had been made before the proceedings started he can do it during the course of the proceedings, but suppose he has made an application and has been refused and that a person's circumstances varied considerably in the interval, may the same court review the ruling given by it?
Yes; the accused person in those circumstances would presumably make a fresh application to the court.
I move amendment No. 3:
In page 3, line 6, after "to be" to insert "or is being".
I move amendment No. 4:
In page 3, line 12, after "to be" to insert "or is being".
I move amendment No. 5:
In page 3, line 24, after "tried" to insert "or under subsection (3) of this section".
I suggest that amendments Nos. 5, 6 and 7 be discussed together. These are all drafting amendments and are designed to make it clear that the issue of free legal aid under Sections 4, 5 and 6 by a higher court, after it had been refused by a lower court, will entitle the applicant to free legal aid and to have solicitor and appropriate counsel assigned to him in the same way as if the certificate had been issued by the lower court.
I move amendment No. 6:
In page 4, line 28, after "heard" to insert "or under subsection (3) of this section".
I move amendment No. 7:
In page 5, line 31, after "(as the case may be)" to insert "or under subsection (3) of this section".
I move amendment No. 8:
In page 6, line 15, to delete "the expenses" and to insert "any fees, costs or other expenses".
I suggest we discuss amendments Nos. 8 and 10 together. I mentioned this point before on Committee Stage and the amendments are designed to make it clear that professional fees and costs are included in the expression "expenses" where it occurs in Section 7.
I move amendment No. 9:
In page 6, line 16, after "shall" to insert ",subject to the regulations under section 10 of this Act".
This amendment might be discussed with amendment No. 11. The object of this amendment is to make the operation of Section 7 with which we have just been dealing, subject to regulations made by the Minister under Section 10. It has been suggested that, as Section 7 stands there would be a possibility of litigation to determine whether expenses were properly incurred. This could occur even though the expenses were expressed to be subject to determination by the taxing master.
I move amendment No. 10:
In page 6, line 20, to delete "the expenses" and to insert "any fees, costs or other expenses".
I move amendment No. 11:
In page 6, line 23, after "shall" to insert ",subject to the regulations under section 10 of this Act,". Amendment agreed to.
I move amendment No. 12:
In page 7, between lines 3 and 4, to insert the following subsection:
"(3) Nothing in these regulations shall operate to prevent a person, to whom a legal aid certificate has been granted, from selecting the solicitor and (where applicable) the counsel to be assigned provided that the particular court is satisfied that such solicitor and (where applicable) counsel is available."
We had considerable difficulty on this point during Committee Stage and the case was then very forcibly put by Deputy Corry and followed up on this side of the House in reference not merely to the desirability but the necessity for an accused person being himself enabled to choose his own legal advisers. The Minister at the time based his case, first, on an erroneous conception of practice and custom in relation to the retention of counsel in any case and, secondly, on the allegation that an accused person who is anxious to be obstructive could obstruct by choosing solicitor and counsel who were not available. While retaining the principle of giving the accused person the right himself to select the people to defend him, we have endeavoured in this amendment to meet the Minister's second point of view by providing that the court will have in its power the determination as to whether or not a particular solicitor or counsel is available.
At the outset, I want to tell the Minister that I do not at all suggest that the actual drafting of this amendment is perfect. My experience of drafting is that it does not matter whether or not you provide the most perfect draft, the draft which you think absolutely carries out not merely your own ideas but what you believe to be the ideas of the Parliamentary draftsman. He will find that, because he wants to fit it into his pattern, he wants to put a comma or a word in a different place. I have long since, therefore, abandoned any hope of getting an exact form of words to suit the parliamentary draftsman, my aim in these matters always being to try to ensure that I shall have on the paper such a form of words as will enable the point made adequately to be argued. I do not think there is any doubt about this form of words making clear to the Minister what we have in mind.
On the previous occasion, we discussed at some length the desirability of an accused person having the right to choose his own defender. It seemed to me at that time to be so obvious as not to require any argument. It seemed it would be utterly outrageous for anyone to be able to say, if two solicitors were available in court, the accused person should not be the only one having the right to decide which of them should represent him. Indeed, if that is not done, it seems it will inevitably happen that anyone who is convicted will automatically have a grievance that he did not get a fair run and that the judge assigned the particular solicitor to defend him because he believed that solicitor would not be able adequately to oppose the prosecution.
On the previous occasion, the Minister was very sarcastic on the subject of the oft-repeated and none-the-less true adage that justice must be seen to be done as well as being done. I understand on that occasion the Minister was suffering somewhat from the effects of his medico having had a crack at him with the needle. Therefore, we shall forgive him for his sarcasm and trust that the effects of his vaccination——
And his lapse from his normal good humour.
——have so worn off that he will realise that he owes it to the House to come a long way on this occasion to make up for the previous one.
Quite apart from the rights of the accused and the desirability of the accused himself making the selection, as the Bill was framed by the Minister, a most unpleasant and invidious task would be put upon the court. I took the opportunity, since the previous discussion, of discussing this matter with many legal personages, both those who adjudicate on the Bench and who address the Bench, and it seemed to all of them that it was most invidious for them to be put in the position of having to choose, particularly at the district court level, between one solicitor and another. Unless a choice is expressly left to the accused person, it means, in effect, in the district court, that the district justice must look at the bench in front of him and say: "I nominate so-and-so," although, perhaps, four or five other solicitors are sitting in court waiting for other cases, or for other business.
That is a choice which the good district justice will find most invidious, and he will certainly wish it was not thrust upon him if there is any way out of it. It is a choice that, quite frankly, the bad district justice will misuse. We all know that there are, in every walk of life, one or two people who do not conform to the high honourable average of the remainder, and justices and judges are no exception to that rule. No one, least of all themselves, would suggest they are an exception to that rule. For the 90 cases that will be dealt with perfectly correctly in relation to the exercise of this discretion, there may well be ten cases that are not dealt with correctly. There is a very simple method of ensuring that that difficulty and that objection are taken away.
We all understand that the Minister has decided that it will be operated, not through the legal profession as is the case else where—and which decision is a pity—but on the basis of setting up a panel from which people shall be chosen, and that again is not the ideal way. The ideal way would clearly be that the accused would apply to the court for a certificate of free legal aid, and having got that certificate, would go out and get whatever person he wanted to defend him, that person would hand in the certificate and in due course be paid fees according to the schedule which is to be set up.
As I say, we know it will be run on that basis, not the ideal basis, but it is certainly desirable that if it is done on that basis every possible opportunity is availed of to make quite certain that every accused person gets just as much of a chance to defend himself and have himself declared innocent as his more fortunate and well-heeled neighbour who is charged, perhaps, with the same offence. It is fundamental to our system of law that we accept that a person is innocent until he is proved guilty. The whole basis for this legislation is to ensure that because a person is not fortunate enough to have the means to defend himself he should be put in a position, and will be put in a position by the community at large, to defend himself, just as is his neighbour who may be more wealthy and can defend himself.
It would be grossly improper and grossly unfair to declare that he must accept legal representation not of his own selection, but made by someone else for him, and by the person who will declare whether he is guilty or innocent. Putting him in that position will make him feel he has no chance. It will lead to practices none of us want to see, and it will lead to the very greatest embarrassment for those people who are presiding in courts, people who, we are all satisfied, endeavour to do their best. They will have to make the selection. That is entirely invidious and entirely unnecessary, and for the man himself it will be something that contravenes the natural justice of our principles of law.
Deputy Sweetman has mentioned that we had a considerable amount of discussion on this matter on Committee Stage. I find myself, regrettably, in the position of not being able to agree with those Deputies who advocate Deputy Sweetman's point of view.
I have already indicated that we regard this scheme as essentially experimental, one in which to a large extent we are feeling our way. We are not quite clear in our minds as to what exactly the cost will be. If you like, we are nervous about the scheme and that nervousness makes us want, in the early stages of its operation in any event, to keep it under fairly close control. It is for that reason and no other reason that I am, if you like, being difficult about the proposal.
I want to make clear to the House what exactly is the difference between Deputy Sweetman and myself. I want to point out that the Bill as it stands does not prevent the regulations which would be framed under it from providing exactly what Deputy Sweetman and other Deputies who support him want. The net difference between us is that Deputy Sweetman wishes this principle to be written into the Bill. I want to make it clear that under the Bill as it stands the regulations can provide that the accused would have freedom of choice.
Will the Minister say that the first regulations will so provide? If he will I am perfectly happy.
I shall come to that point and I may be able to satisfy Deputy Sweetman. I want to provide otherwise in the first regulations we draft. I want to provide that it will be the judge who will, having regard to the wishes of the accused, nominate solicitor and counsel. I have already indicated that these regulations and the working of the scheme will be reviewed, after a year or two, in close consultation with the Law Society and the Bar Council. It may be that we will then be able to provide as Deputy Sweetman wants us to provide now, but in the beginning, until we see how the scheme works out and have a knowledge of what difficulties will arise, we are very anxious to leave the final decision with the judge.
I genuinely feel that recalcitrant criminals could cause a lot of difficulties and upset the whole working of the scheme unless we leave the final assignment to the judge. Time may prove those fears to be groundless, and the review which we will make of the working of the scheme in a year or two may indicate quite clearly that we should accept Deputy Sweetman's principle. I appeal to the House at this stage not to write this into the Bill, and to leave us free to provide as we wish initially, subject to the fact that we can change it later if we so wish.
There is another fairly valid point which I should also like to mention. We have studied how the scheme works in Northern Ireland. It has been in operation there for some time and the regulations there provide exactly as we propose to provide here, namely, the final assignment is made by the judge, having regard to the wishes of the accused. There is no complaint about the working of the scheme from that point of view. Indeed, the Steele Committee set up in the North to review the matter had no comment to make on that aspect. We have had that experience, that insofar as the scheme has been working in the North, this provision is not causing any difficulty. It may give rise to dissatisfaction down here and, if it does, we can review the scheme in the course of a year or two.
I feel I should also point this out to the House. It is argued here that an accused person may ask for a particular solicitor or counsel and may not be able to get him. I want to re-emphasise that the regulations will provide that the district justice must have regard to the wishes of the accused. That is a statutory obligation placed on him, and we cannot accept he will lightly disregard it. Even allowing that, the argument is put forward that an accused person may ask for a particular solicitor or barrister, not procure him, be convicted and therefore labour under a very real sense of grievance. The only argument I can put in reply is this: All of us from time to time—I, as Minister for Justice, and I know Deputies also —get letters from persons who with their own money pay their own solicitor or counsel, make their own free choice and still are dissatisfied with the manner in which their legal advisers conduct their cases. They come to me or to Deputies to say that such-and-such a solicitor made a mess of their case and ask me to help them. There you have persons paying their own way, naming their own choice and still dissatisfied with the result. We cannot ever hope to get into a position here where accused persons will not have a sense of grievance about the manner in which their legal advisers conduct their defence and it would be unrealistic to try. Therefore, insofar as Deputy Sweetman's argument is based on that case, it cannot possibly be accepted.
There will be a great many more people dissatisfied.
I am not so sure there will.
The cases mentioned by the Minister are the hardy annuals who will chance anything.
I agree. Most of the persons availing of this scheme will be in court for the first time, maybe the only time, in their lives. They will have no knowledge of which solicitors normally practise in that court, what their competence is and in what fields they specialise. Indeed, it will be invaluable for such persons to be advised by the judge or justice as to whom they should select. From that point of view, I think the judge or justice should be in on it. I offer that as a safeguard to the House, that the statutory provision is that the justice must have regard to the wishes of the accused.
Where?
I am sorry: I am confusing the Bill and the regulations. It will be provided in the regulations. I give the House that guarantee, and I would ask Deputies not to press me any further on that.
The Minister has gone a fair distance to give that undertaking.
