The object of this Bill, as the Long Title indicates, is to make provision for the grant by the State of free legal aid to poor persons in certain criminal cases. At present free legal aid is provided by the State only in murder cases where the accused persons cannot afford to provide legal aid themselves but the practice has no statutory backing. It is proposed in this measure to allow accused persons of insufficient means legal aid in practically every kind of criminal proceedings in which they may find themselves involved. They may obtain it in the district court for summary offences or for indictable offences which are dealt with summarily with the consent of the accused. It will also be available for the preliminary investigation of an indictable offence in the district court as well as for the subsequent trial in the Circuit Criminal Court or the Central Criminal Court, as the case may be. Legal aid will be provided, too, in the case of appeals from each of these various courts, including appeals to the Supreme Court from the Court of Criminal Appeal; and there is provision for aid in proceedings by way of case stated and in appeals from a determination of the High Court on cases stated by district justices.
The grant of legal aid is in every case subject to the relevant court being satisfied that it is essential in the interests of justice that it should be provided and that the accused cannot afford it. Other limiting words are contained in the provisions dealing with proceedings before the various courts and, in general, the principle sought to be adopted is that aid should be provided only in serious cases, or in exceptional circumstances, where it would be essential in the interests of justice that the accused person should have free legal aid. The proposals in the Bill are therefore designed to help to prevent, as far as possible, genuine miscarriages of justice but not to allow legal aid to be granted in any general or indiscriminate fashion. There is a body of opinion in favour of allowing legal aid automatically to every poor person accused of an offence but this extreme point of view is unacceptable to the Government as a matter of principle and, in any event, the cost of providing such a service would be wholly excessive having regard to our limited resources and to the various calls there are upon them from other, and I think more deserving, classes of the community. The fact is that there is no evidence that injustice or hardship is being caused on any significant scale by the absence of free legal aid. The voluntary contribution made by both branches of the legal profession in undertaking without reward the defence of poor persons and the concern of the courts to ensure that an accused in not prejudiced in any way by the absence of legal representation have been largely responsible for bringing about that situation. However, the possibility of an innocent person being convicted because he cannot afford to pay for his defence or to obtain free the services of a lawyer still remains and is the justification for the present Bill.
Since the publication of the Bill I have been in consultation with the Bar Council and the Incorporated Law Society on the operation of the scheme and I have every confidence that it will be possible to work out satisfactory arrangements for its detailed operation and to have the full co-operation of these professional bodies in ensuring that we get the best possible value for the money to be spent on it. I share with both branches of the profession their concern that there shall be no diminution of standards in connection with the professional services to be provided to accused persons who are allowed legal aid. In the important matter of remuneration I am hopeful that it will be possible to prescribe professional fees which will be generally accepted as fair and reasonable in the circumstances. I expect that the members of the legal profession, as reasonable people, will accept something less than full scale fees having regard to the fact that they already have a tradition for giving their services free in deserving cases and also because the scheme is necessarily experimental and may cost the Exchequer, in the event, much more than anticipated.
I should like to emphasise the experimental character of this measure. There are a number of unknowns which combine to make it difficult to forecast to what extent the scheme will be availed of. I myself believe that the courts will behave with a proper sense of responsibility and ensure that legal aid is confined to really deserving cases—and in this belief the decision whether to allow free legal aid or not is being left exclusively to the judge or justice concerned. However, it is still the case that the scheme is breaking entirely new ground and it would be unwise, I think, to lay down the detailed arrangements for the operation of the scheme in any precise way in the Bill itself. The sensible thing to do is to leave these details to be provided for by regulations and to allow a period of one or two years to elapse and then have a general review of the scheme in the light of its actual operation during that period. In framing the initial regulations, we shall have the advantage of the precedents set by the schemes which have operated satisfactorily for a long time in Britain and in Northern Ireland.
I should like to say that there is no question of requiring an accused person to disclose his defence in connection with an application for the grant of legal aid. It will be a matter for the accused person entirely to decide whether or not he should do so. In fact, during the passage of the Bill in the Dáil I moved an amendment to make it clear that the trial judge could decide to grant legal aid on an application by the accused at any time during the trial so as to provide for what I would regard as a most exceptional case of its becoming evident to the trial judge at some stage of the trial that he ought to allow legal aid. However, I think that any judge would be entitled to expect, when asked to consider an application for free legal aid, some indication from an accused person of the reasons why it would be essential in the interests of justice that that aid should be provided. This would not apply, of course, in a case of murder where free legal aid will continue to be available to poor prisoners as of right but it should apply in all other cases where the grant of legal aid is not automatic. Otherwise, there might be a possibility of free legal aid being given to people where the facts are perfectly straightforward and no difficult question of law is involved and where it is clear to everyone that what the interests of justice require is that the accused person should be convicted and adequately punished with the minimum of delay. It has been well pointed out that miscarriages of justice can occur through the guilty escaping punishment no less than from the conviction of the innocent and I am afraid that miscarriages of the former kind occur far too frequently. The judges and justices can, as I have said already, be trusted to exercise the powers being given them by the Bill in a commonsense way which will take full account not only of the fundamental rights of accused persons but also of the need to avoid the grant of aid unnecessarily.
I hope that the Bill will commend itself to Senators as a measure of social reform which is long overdue and that the House will agree to give it a Second Reading.