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Criminal Legal Aid

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.