Carmody v The Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 23 October 2009
• Neutral Citation: [2009] IESC 71
• Court: Supreme Court
• Docket Number: [S.C. No. 82 of 2005]
• Date: 23 October 2009

Carmody v Min for Justice & Ors

BETWEEN

EDWARD CARMODY

APPELLANT

-v-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2009] IESC 71

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

082/2005

THE SUPREME COURT

CONSTITUTIONAL LAW

Fair trial

Free legal aid scheme - Preparation and conduct of defence in criminal proceedings - District Court - Representation by solicitor and counsel - Failure of State to provide statutory mechanism to enable defendant apply for representation by counsel in criminal proceedings in District Court - Constitutional right to apply for legal aid to include counsel - Parity of representation - Counsel retained by prosecution - Judicial role in vindication of constitutional rights - Available remedies - Human rights - Constitution - European Convention - Whether constitutionality or compatibility of impugned legislation with Convention provisions ought to be decided first - Steel & Morris v UK (2005) 41 E.H.R.R. 22 considered; The State (P Woods) v AG [1969] IR 385, Murphy v Roche [1987] IR 106, The State (Healy) v O'Donoghue [1976] IR 325 and McDonnell v Ireland [1998] 1 IR 134 applied - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 - European Convention on Human Rights Act 2003 (No 20), s 5 - Constitution of Ireland 1937, Articles 15.4.2 , 38.1 and 40.3 - Plaintiff's appeal allowed (82/2005 - SC - 23/10/2009) [2009] IESC 71

Carmody v Minister for Justice, Equality and Law Reform

Facts: The appellant was charged with 42 animal and bovine care-related offences before the District Court. He had obtained legal aid before the District Court and it was decided that he did not have the means for legal representation. The appellant claimed that his constitutional right to legal aid was denied in criminal proceedings where there was no statutory or other means to obtain free legal representation so as to include counsel and a solicitor. The appellant sought a declaration that s. 2 (1) Criminal Justice (Legal Aid) Act 1962 was repugnant to the Constitution and a declaration that the provision was incompatible with s. 5 European Convention on Human Rights Act 2003.

Held by the Supreme Court (Murray CJ; Denham, Hardiman, Geoghegan & Fennelly JJ. concurring), that when an appellant sought a declaration of unconstitutionality and a declaration of incompatibility, that the issue of constitutionality had to be decided first. The provisions of s. 2 were positive and conferred jurisdiction on the District Court. The absence of a right to apply for legal aid to include counsel had to stem from a failure of the State to make such provision rather than from any provision of the Act of 1962. The denial of the opportunity to apply for and be granted legal aid was a denial of a constitutional right and the appellant was entitled to such vindication. It would also be unjust and in violation of Article 38.1 of the Constitution. The Court would grant a declaration that the appellant had a constitutional right to apply, prior to being tried, for legal aid in the criminal proceedings brought against him in the District Court and to have that application heard and determined on its merits. The question of the compatibility of s. 2 with s. 5 of the Act of 2003 did not accordingly arise in light of the conclusions of the Court. The Court would allow the appeal.

Reporter: E.F.

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2

DISEASES OF ANIMALS ACT 1966 S48

HEALY, STATE v DONOGHUE & ORS 1976 IR 325

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)(C)

HUMAN RIGHTS COMMISSION ACT 2000 S8(H)

WOODS, STATE v AG & KELLY 1969 IR 385

MURPHY v ROCHE & ORS 1987 IR 106 1986/7/1349

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 15

CONSTITUTION ART 38.1

CRIMINAL JUSTICE ACT 1951 S5

CRIMINAL JUSTICE ACT 1984

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006

STEEL & MORRIS v UNITED KINGDOM 2005 41 EHRR 22 2005 EMLR 15

CONSTITUTION ART 15.4.2

CONSTITUTION ART 40.3

MCDONNELL v IRELAND & ORS 1998 1 IR 134 1996 2 ILRM 222

1 JUDGMENT of the Court delivered by Murray C.J.on the 23rd day of October 2009

2 Judgment of the court delivered by Chief Justice

3 In these proceedings the appellant claims to have been denied a constitutional right to legal aid in criminal prosecutions before the District Court because there is no statutory or other means by which he can seek to have free legal representation which includes counsel as well as solicitor even though the circumstances pertaining to the prosecution brought against him are such that representation by solicitor and counsel may be essential in the interests of justice.

4 Two remedies have been sought by the plaintiff and appellant (hereafter the appellant) namely (a) a declaration that s. 2(1) of the CriminalJustice (Legal Aid) Act 1962 is invalid as being repugnant to the Constitution and (b) a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2(1) of the Criminal Justice (Legal Aid) Act 1962 is incompatible with the obligations of the State under the provisions of the Convention.

Section 2

5 Section 2 of the Act of 1962 provides as follows:

6 (1) "If it appears to the District Court -

7 (a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and

8 (b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it, the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

9 (2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable.

10 At this point it is convenient to refer to the general scope and ambit of that section.

11 It confers jurisdiction on the District Court to grant a person of insufficient means legal aid "in the preparation and conduct of his defence".

12 That legal aid can only be granted if it appears to the District Court "that by reason of the gravity of the charge or of exceptional circumstances, it is essential in the interests of justice" that the legal aid should be granted.

13 With one exception, the legal aid granted is confined to legal representation by a solicitor only for the preparation and conduct of the defendant's defence.

14 The only exception specified in the section is that where the accused is charged with murder, and the Court thinks fit, counsel may be assigned in addition to a solicitor.

15 The exception is effectively redundant as a result of the abolition of the then existing preliminary examination procedure in the District Court for persons charged with all indictable offences, as a consequence of the Criminal Justice Act 1999.

16 Otherwise, whatever "the gravity of the charge", whatever "exceptional circumstances" may exist and whatever "the interests of justice" might require the District Court has no power or discretion to consider whether legal aid should be granted for the purpose of assigning counsel to prepare or conduct a defendant's defence. The reference to counsel in this judgment is a reference to a practising barrister.

Background Facts

17 The appellant was charged with 42 offences before the District Court all of which related either to the alleged wrongful movement of cattle, failure to keep a register of certain cattle or failure to deliver an identity card in relation to cattle. In general terms the offences are alleged to be contrary to various regulations intended to protect cattle from the disease of brucellosis or prevent the spread of the disease.

18 When he appeared before the District Court on foot of the summonses served on him the appellant was allowed legal aid and he engaged as his solicitor Mr. Mannix.

19 Thus it has been decided by the District Court that the appellant does not have the means to pay for legal representation and that it is essential in the interests of justice that he be granted criminal legal aid for that purpose, namely a solicitor. These rulings by the District Court are not put in issue by the State.

20 Mr. Mannix is a solicitor of 26 years experience particularly in the field of criminal law having been on the legal aid panel for the representation of persons in the District Court and other courts for some 25 years. He practised on his own until 1999 when he engaged an assistant solicitor and since June 2002 he has been in partnership with two other solicitors. His practice is based in Tralee.

21 Particulars concerning the offences for which the appellant was summoned were summarised in the submissions filed on behalf of the appellant in the following terms:

"Of the forty-two offences with which the Plaintiff is charged, thirty-nine allege that between the 15 ^th October, 1998 and the 17 ^th September, 1999, the Plaintiff moved an eligible animal into a holding while such holding was restricted. Each of the thirty-nine summonses relate to a different animal, identifying the animal by ear tag number, and allege the movement was contrary to:"

"Section 48(1)(a), (d) and (e) of the...