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

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 21 January 2005
• Neutral Citation: [2005] IEHC 10
• Court: High Court
• Date: 21 January 2005

[2005] IEHC 10

THE HIGH COURT

NO. 14671 P/2000

CARMODY v MIN FOR JUSTICE & ORS

BETWEEN/

EDWARD CARMODY

PLAINTIFF

AND

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

DEFENDANTS

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2

DISEASES OF ANIMALS ACT 1966 S48(1)(A)

DISEASES OF ANIMALS ACT 1966 S48(1)(D)

DISEASES OF ANIMALS ACT 1966 S48(1)(E)

BRUCESLLOSIS IN CATTLE (GENERAL PROVISIONS) ORDER 1991 S114/1991

EUROPEAN COMMUNITIES (REGISTRATION OF BOVINE ANIMALS) REGS 1996 SI 104/1996

DISEASES OF ANIMALS ACT 1966 S48

MCLEAN v PROCURATOR FISCAL & ORS 2001 UKPCD 3

KELLY THE IRISH CONSTITUTION 4ED 2003 PARA 6.2.169

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

MURPHY v ROCHE 1987 IR 106

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)

MCKERR, IN RE 2004 2 AER 409 2004 1 WLR 807

WILSON v FIRST COUNTY TRUST LTD (No2) 2003 3 WLR 568 2004 1 AC 816 2003 4 AER 97

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 2

HUMAN RIGHTS ACT 1998 S6 (UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS PROTOCOL 11 ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(3)(C)

ARTICO v ITALY 1980 3 EHRR 1

GODDI v ITALY 1984 6 EHRR 457

DAUD v PORTUGAL 2000 30 EHRR 40

NEUMEISTER v AUSTRIA (NO 1) 1979 1 EHRR 400

MONNELL AND MORRIS v UK 1987 10 EHRR 205

BORGERS v BELGIUM 1993 15 EHRR 92

BONER v UK 1994 19 EHRR 246

LUEDICKE & ORS v GERMANY 1978 2 EHRR 149

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(3)(D)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(3)(E)

CONSTITUTION ART 38.1

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.1

THE STATE (HEALY) v DONOGHUE 1976 IR 325

THE STATE (FREEMAN) v CONNELLAN 1986 IR 433

HEANEY v IRELAND 1994 3 IR 593

DONNELLY v IRELAND 1998 IR 321

DPP v MCDONAGH 2001 3 IR 411

A v UK 2003 36 EHRR 51

BENHAM v UK 1996 22 EHRR 293

CROISSANT v GERMANY 1993 16 EHRR 135

DE HAES & GIJSELS v BELGIUM 1987 25 EHRR 1

ELIAZER v THE NETHERLANDS APPLICATION NO 38055/97 UNREP ECHR 16.10.1997

ENGEL v THE NETHERLANDS (NO 1) 1976 1 EHRR 647

GRANGER v UK 1990 12 EHRR 469

HOANG v FRANCE 1992 16 EHRR 53

MAXWELL v UK 1994 19 EHRR 97

MURRAY v UK 1996 22 EHRR 29

MAGEE v UK APPLICATION NO 28135/95 UNREP ECHR 6.6.2000

PAKELLI v GERMANY 1983 6 EHRR 1

POITRIMOL v FRANCE 1993 18 EHRR 130

QUARANTA v SWITZERLAND APPLICATION NO 12744/87 UNREP ECHR 24.5.1991

S v SWITZERLAND APPLICATION NO 12629/87 UNREP ECHR 25.10.1991

BYRNE v JUDGE MCDONNELL 1997 1 IR 392

CAHILL v JUDGE REILLY 1994 3 IR 547

CONROY v AG 1965 IR 411

DPP v B 2002 2 IR 246

K SECURITY LTD & KAVANAGH v IRELAND UNREP GANNON 15.7.77 1977/5/886

KIRWAN v MINISTER FOR JUSTICE 1994 1 ILRM 444

RE NATIONAL IRISH BANK LTD (NO 1) 1999 3 IR 145

ROCK v GOVERNOR OF ST PATRICKS INSTITUTION UNREP SUPREME 22.3.1993 1993/5/1383

SHARKEY, STATE v MCARDLE & DPP SUPREME 4.6.1981 1981/8/1227

CONSTITUTION

Fair trial

Free legal aid scheme - Legal aid in preparation and conduct of defence in criminal proceedings - District Court - Offences under diseases of animals legislation - Sources in domestic and European law - Complicated nature of offences - Entitlement to have solicitor assigned - No entitlement to have counsel assigned - Counsel retained on prosecution side - Parity of representation - Effective representation - Criminal Justice (Legal Aid) Act 1962 (No 12), s. 2 - Constitution of Ireland 1937, Articles 38.1, 40.1, 40.3.1, 40.3.2 and 40.4.1 - Claim dismissed (2000/14671P - Laffoy J - 21/1/2005) [2005] IEHC 10 - [2005] 2 ILRM 1 - Carmody v Minister for Justice, Equality and Law Reform

CRIMINAL LAW

Trial District Court - Free legal aid scheme - Effective representation - Whether accused should be entitled to have counsel assigned in complex cases - Whether qualified solicitor exercising ordinary professional skill capable of effectively defending accused in complex cases - The State (Healy) v Donoghue [1976] I.R. 325 applied; Artico v Italy (1981) 3 E.H.R.R. 1, Goddi v Italy (1984) 6 E.H.R.R. 457, Daud v Portugal (2000) 30 E.H.R.R. 400 and McLean . Buchanan [2001] UKPCD 3 [2001] 1 W.L.R. 2425 considered - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 - Claim dismissed (2000/14671P - Laffoy J - 21/1/2005) [2005] IEHC 10 - Carmody v Minister for Justice, Equality and Law Reform

HUMAN RIGHTS

Free legal aid scheme

Criminal proceedings - Principle of equality of arms - Whether entitlement to have solicitor only and not counsel assigned incompatible with Convention provisions - Right to fair trial - Doctrine of self-restraint Whether constitutionality or compatibility of impugned legislation with Convention provisions should be decided first - Whether open to plaintiff to seek declaration of incompatibility where Act of 2003 not in force when proceedings were commenced - Consequences of declaration of incompatibility - In re McKerr [2004] UKHL 12 [2004] 1 W.L.R. 807; Wilson v First County Trust Ltd. (No. 2) [2003] UKHL 40 [2004] 1 A.C. 816; Neumeister v Austria (No. 1) (1979) 1 E.H.R.R. 91; Monnell and Morris . United Kingdom (1988) 10 E.H.R.R. 205; Borgers v Belgium (1993) 15 E.H.R.R. 92; Boner . United Kingdom (1995) 19 E.H.R.R. 246 and McLean v Buchanan [2001] UKPCD 3 [2001] 1 W.L.R. 2425 considered - European Convention on Human Rights Act 2003 (No 20), ss 2 and 5 - European Convention on Human Rights 1950, articles 5, 6(3)(c) and 14 and protocol 11, article 1 - Constitution of Ireland 1937 - Claim dismissed (2000/14671P - Laffoy J - 21/1/2005) [2005] IEHC 10 - Carmody v Minister for Justice, Equality and Law Reform

the plaintiff was charged with offences under the Diseases of Animals Act 1996 which he submitted were exceptionally complex in comparison to the generality of prosecutions in the District Court. The plaintiff sought a declaration that section 2 of the Criminal Justice (Legal Aid) Act 1962 was unconstitutional and in contravention of the State’s obligations under the European Convention on Human Rights, principally Article 6, on the basis that it failed to provide for legal aid for the assignment of counsel to assist in the conduct of the accused’s defence, denying him effective representation and offended the principle of equality of arms.

Held by Laffoy J in dismissing the plaintiff’s claim that the purpose of the Act of 2003 subordinated the effect given to the Convention in domestic law to the Constitution and that, by virtue of section 5(2) of the Act of 2003, if a declaration of incompatibility was made, it would not affect the validity, continuing operation or enforcement of section 2 of the Act of 1962. In determining whether section 2 of the Act of 1962 fulfilled the State’s obligations under article 6 of the Convention to provide effective and practical representation, the court had to consider that the District Court was a court of first instance and summary jurisdiction and the system of administration of justice recognised the competence of a qualified solicitor to act as an advocate in every court in the State. The provision for legal aid in section 2 of the Act of 1962 did not violate the State’s obligation to provide legal assistance for an indigent accused as it had not been established that a qualified solicitor on the legal aid panel exercising normal professional skill and care could not afford effective and practical representation for a person being tried summarily on a minor offence in the District Court. As such, the absence of parity itself did not endanger the right to a fair trial as guaranteed by article 6 of the Convention.

Reporter: P.C.

1 Judgment of Miss Justice Laffoydelivered on 21st January, 2005.

The proceedings

2 These proceedings were initiated by a plenary summons which issued on 19th December, 2000. In his statement of claim delivered on the same day the only specific relief sought by the plaintiff, apart from costs, was a declaration that s. 2 of the Criminal Justice (Legal Aid) Act, 1962 (the Act of 1962) is inconsistent with the provisions of the Constitution. A defence was delivered on behalf of the defendants on 12th July, 2001. Notice of trial was served on 10th December, 2001. Before the scheduled hearing commenced, the European Convention on Human Rights Act, 2003 (the Act of 2003) had come into force on 31st December, 2003. On 11th February, 2004 the plaintiff's solicitors notified the Chief State Solicitor of the plaintiff's intention to seek an amendment of the pleadings at the hearing of the action. At the hearing, with the consent of the defendants, the plaintiff was given leave to amend the plenary summons and the statement of claim and the defendants were given leave to amend their defence. In consequence of the amendments the plaintiff also seeks a declaration that s. 2 of the Act of 1962 is incompatible with the State's obligations under the European Convention on Human Rights (the Convention).

The impugned section

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

4 2 "(1) If it appears to the District Court û

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

6 (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,

7 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...