The Courts Service has issued information on what it means to go to court as a witness.

Good luck to them.

It’s a pity they don’t seem to have done the same for parties to litigation.

Given that they are close to the persons who make up the Rules Committee of the Superior Courts, they will be unlikely, currently or in the future, to direct any criticism or complaint at the work of the Committee.

The Rules determine what the experience of going to court will be like.

The Committee, in effect, makes the Rules of the Superior Courts; the Minister for Justice, Equality and Law Reform has a nominal role but he, I venture, is busy elsewhere when the Rules get changed. (I could be wrong; perhaps it is a State secret, and the Committee does the bidding of the Minister).

In any event, the Courts Service will not be looking askance at any practice or procedure under the Rules.

The Committee is one example of bodies that, in effect, make and promulgate law. The Rules are published in the form of Statutory Instruments. Statutory Instruments are generally seen as “secondary legislation”. “Primary legislation” is to be found in the Acts of the Oireachtas. The Acts often make provision for detailed regulations to be made, “fleshing out” the bones of the particular Act. To be lawful the “regulations” must not go beyond the terms of the Act; they must express the “policies and purposes” of the Act.

The reason for this lies in the Constitution. Only the Oireachtas has the power to make law. Nevertheless, there are on occasion instances where “secondary legislation” is in fact “primary legislation”. Regulations made under the European Communities Act 1972 (as amended) have this status.

Most “secondary legislation” takes the form of a statutory instrument.

The European Communities Act 1972 aside, “ordinary” statutory instruments become law after, notionally, having been laid before the Houses of the Oireachtas.

This is an antiquated procedure to give the validity or endorsement of the Oireachtas to the instrument. Given the fact that the Executive dominates the Oireachtas with regard to primary legislation, the idea that the Oireachtas might even notice the statutory instrument being “laid” is a delusion.

Consequently, a vast body of law is promulgated every year and is open to challenge, in effect, only by Judicial Review proceedings in court.

FLAC has just issued a condemnation of the fact that, in Ireland, access to justice is denied many due to lack of resources. Free legal aid is available only to a limited number of people and for a limited number of issues.

Challenging the State in Judicial Review (particularly the Rules Committee of the Superior Courts) is definitely, practically, off that list of issues.

With the Irish economy in retreat (recession), lawyers will still find a need for their services.

In truth, there is probably a large core of business for Irish lawyers, regardless of the state of the economy. (And that takes no account of the possibility of duplicating the activities of Allen & Overy).

The real issue is not the availability of work, but the financing of the work.

Ireland has seriously handicapped its legal profession, relative to the UK. There, it is possible, under Conditional Fee Agreements (“CFAs”), to recover double (say) the standard fee in court taxation if the lawyers have agreed to act on a “no win, no fee” basis.

In Ireland no such official arrangement exists.

Of course the real loser from the State’s failure is the Irish citizen. At very little cost to the State, it could empower victims to defend their interests and vindicate their rights in fields as diverse as defamation and personal injury litigation.

The legal basis, in the UK, for CFAs is s.58 of the Courts and Legal Services Act 1990, as substituted by s.27(1) of the Access to Justice Act 1999, the Conditional Fee Agreements Regulations 2000 (SI 2000 No 692), amended by the Conditional Fee Agreement (Miscellaneous Amendments) Regulations (SI 2003 No 1240) and the Conditional Fee Agreement (Revocation) Regulations 2005 (SI 2005 No 2305).

Under the Regulations, the plaintiff client will become liable for fees only if he/she:

a) fails to co-operate with the legal representative;

b) fails to attend any medical or expert examination or court hearing which the legal representative reasonably requests him to attend;

c) fails to give necessary instructions to the legal representative; or

d) withdraws instructions from the legal representative.

This failure by the Irish State is particularly glaring in the light of the fact that there are, currently, proceedings at hearing, in Dublin, intermittently, which potentially, if not actually, are financed by CFAs.

Those proceedings are the Omagh civil action arising out of the bombing of Omagh.

Why should Omagh be different to Dublin?

The greater proportion of criminal proceedings in Ireland is conducted in the District Court. The jurisdiction of the District Court is limited in the penalties it may impose. It is a court of summary jurisdiction. Summary jurisdiction means that the court may, pursuant to statute, deal with the charge against the defendant without recourse to a jury trial.

Under Article 38 of the Constitution of Ireland, a trial of an offence, which is not a minor offence, must be before a jury. Therefore, to invoke the summary jurisdiction of the District Court an offence must be a minor offence. There is no settled definition of a minor offence. It has been accepted by the Supreme Court that an offence attracting a maximum of 12 months in jail is a minor offence. The Supreme Court, obversely, has declared that an offence attracting a maximum of 2 years in jail is not a minor offence. (Mallon v Minister for Agriculture, Food and Forestry [1996] 1 IR 517).

In a summary trial of a non-minor offence, the District Court’s sentencing power is limited to 12 months’ imprisonment and a fine of €1,270 ( s.17 of the Criminal Justice Act 1967).

However, it is open to a District Court judge to impose a sentence consecutive to a previous sentence, subject to a limit of two years in total. (Section 5 of the Criminal Justice Act 1951 (as amended by s. 12(1) of the Criminal Justice Act 1984)).

Solicitors predominate in the supply of defence legal representation in the District Court. Typically the solicitor is on the Legal Aid panel. In the major cities he/she may specialise in criminal law practice, effectively to the exclusion of other types of business.

Where the court accedes to a request to certify an entitlement to Legal Aid for a defendant, it will almost invariably assign the solicitor of the defendant’s choice. In The State (Freeman) v. Connellan [1986] I.R. 433 the High Court found that the placing on the defendant of an onus to establish why he wanted a particular solicitor was “unnecessarily and unreasonably restrictive”.

A summary charge is not always a straightforward one. In addition, a trial may involve the consideration of many charges against a defendant. Where the defendant is paying for his/her defence and can afford the expense, it is open to him/her to engage the services of a barrister experienced in criminal law proceedings, in addition to the solicitor.

However, where the defendant is entitled to Legal Aid and has chosen his/her solicitor for representation in summary proceedings, under Section 2 of the Criminal Justice (Legal Aid) Act, 1962, he/she is not entitled to representation by a barrister.

This was the issue in Carmody v Minister for Justice, Equality and Law Reform [2005] IEHC.

The court found that as a matter of probability, a defendant will be afforded a fair trial in summary proceedings in the District Court while represented solely by a solicitor.

The Plaintiff had sought a declaration of incompatibility of Section 2 of the Criminal Justice (Legal Aid) Act, 1962 with the European Convention on Human Rights, specifically articles 5, 6 and 14 of the Convention and article 1 of Protocol No. 11. The court found that the substance of the Plaintiff’s claim was in respect of the right to a fair trial provided under article 6.

The court declined the declaration of incompatibility and went on to find that Section 2 of the Criminal Justice (Legal Aid) Act, 1962 was not in breach of the provisions of the Irish constitution specifically Articles 38.1, 40.1, 40.3.1, 40.3.2, and 40.4.1.