Legal Aid in the Irish Legal System

INTRODUCTION

One of the core conceptions of the principle of the rule of law, which has become the cornerstone of the legal system of most democratic societies, is the notion that everyone should be avail equal treatment before the law. On the one hand is the familiar requirement that everyone, irrespective of his status should be amenable to the jurisdiction of the court.[1]On the other hand, equal treatment connotes that everyone should have unimpeded access to a law court that is capable of dispensing justice fairly[2]. It is the latter requirement that will form the basis of this essay.

Access to justice is universally recognized as a fundamental right[3] that ensures the enforcement of other human rights. In fact, human rights are of no value where justice cannot be accessed unhindered.[4] However, a problematic element of access to justice is the availability of legal representation, particularly to the section of the society that is vulnerable economically. Indeed, justice will not be deemed to be equal where those who cannot afford it are excluded from its dividends. In order to address this shortcoming, the right to legal aid was devised to accommodate the participation of those who cannot afford legal services in the justice system.

In light of the above, an attempt will be made in this essay to access the impact of the development of the right to free legal aid on the constitutional right of access to justice in Ireland.

 

THE RIGHT TO LEGAL AID: A CONSTITUTIONAL IMPERATIVE?

The Intervention of the Irish Courts

The Irish Constitution is the supreme law that infuses validity into other laws within the legal hierarchy. This legal document contains a list of fundamental rights for the benefit of Irish citizens.[5] It is noticeable that there is an inexplicit provision for the right to effective access to justice in the constitution.[6] However, it is accepted that the right to access to justice is guaranteed as an implied and unenumerated personal constitutional right by virtue of the provision of Article 40.3.[7] Hence, the Court in appropriate circumstances interprets the right to legal aid in light of the implied constitutional right of access to justice.

It is worthy of notice that the right to legal aid in Ireland is interpreted separately in relation to criminal and civil law. Thus, in 1976 the Supreme Court for the first time recognized the constitutional right to criminal legal aid in Ireland. In the classical case of The State (Healy) v Donoghue[8] the appellant instituted legal proceedings to void his conviction owing to the fact that he was not inform of his right to legal aid provided by the Criminal Justice (Legal Aid) Act, 1962. The court, unanimously quashing the conviction, held that a defendant who lacks the financial wherewithal to defend a criminal case is entitled to the constitutional right to legal aid.[9] Hence, his right was infringed when he was not informed of his Constitutional right to legal aid.[10]

While the Supreme Court decision inspired the constitutional right to legal aid in criminal cases, the Irish court was initially reluctant to confer similar status in civil cases. Thus, five years before Donoghue, in O’Shaughnessy v. Attorney General[11]the High Court held that the power to defend the personal rights of a citizen is vested in the legislature rather than the court. The court therefore dismissed the argument that the provision of the Criminal Justice (Legal Aid) Act, 1962 was unconstitutional because it failed to make provision for civil legal aid.

The judicial apathy to questions appertaining to the constitutionality of the right to civil legal aid subsisted until the intervention of the European Court of Human Right in a case involving a poor Irish woman in 1979.

 

The Intervention of the European Court of Human Right (ECt.HR).

In 1979, the European Court of Human Rights gave a profound judgment in Airey v Ireland[12]  which will later have a far-reaching impact on the right of access to the court and the rights to civil legal aid in Ireland. In that case, the court elaborated on the provision of Article 6(1) of the European Convention of Human Right and Fundamental Freedom (ECHR). It provides that:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.      

In Airey’s, the petitioner complained that she was not able to prosecute a divorce proceeding by reason of her inability to access legal aid in order to secure the service of a lawyer which consequently infringed her right of access to court guaranteed under Article 6(1). The court considered the State’s argument that the petitioner’s access to the court is not impeded because she could represent herself without the assistance of a lawyer. However, the ECt.HR held that the convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.[13] The court reasoned that although the petitioner could represent herself in theory, but it would be absurd to expect someone untrained in the complexity of divorce proceedings to represent herself in the law court. In addition, the ECt.HR held that while Article 6(1) does not explicitly provide for legal aid in civil cases, it purports to compel states to provide free legal services for poor litigants in civil disputes when such assistances proves indispensable for effective access to courts, either because legal representation is mandatory under the law or because of the complexity of procedure or the case.  .

The Airey’s case is significant because it initiated the recognition of the right to legal aid in civil cases as knitted to the constitutional right of access to justice in Ireland.

 

LEGAL AID SCHEMES IN IRELAND

Criminal Legal Aid Scheme

Pre-Enactment of the Criminal Justice (Legal Aid) Act, 1962

Before the enactment of the Criminal Justice (Legal Aid) Act, 1962 (hereinafter, Act of 1962), legal aid was only available in successfully appealed criminal cases that carried the death penalty. At that time, the Court of Criminal Appeal in 1924 was granted permission to provide legal aid to defendants appealing against a death penalty.[14] Finally, in 1928, the Supreme Court and the Court of Criminal Appeal were granted expanded jurisdiction to direct that the cost of re-trial ordered by the Courts and the cost of the appeal, where successful, should be paid by the State.[15]

Criminal Justice (Legal Aid) Act, 1962

With the commencement of the Act of 1962, legal aid in criminal cases ceased to extend only to appealed cases that carried the death sentence, rather it applies to all serious offences in specific circumstances at the trial court and appellate courts.  The Act of 1962 specifies that the application by an indigent litigant and the subsequent grant of the certificate of legal aid to him, by the Court, is a prerequisite for the provision of free legal aid.[16] In addition, the court must be satisfied that:

the defendant’s means are insufficient to enable him or her to obtain legal aid from his or her own resources[17]   

And also that:

the gravity of the charge or of exceptional circumstances make it essential in the interests of justice that the person should have legal aid in the preparation and conduct of his or her defense at the trial.[18]   

Thus, it appears from the foregoing eligibility criteria that the means and merit test affords judges wide range of discretion in determining claims for legal aid.[19] While the Act of 1962 stipulates that application should be made before free Legal Aid is provided by the Court, it appears that the decision of the Supreme Court in The State (Healy) v Donoghue[20] went contrary to the requirement of the Act.[21] However, the court reasoned that if a person who is ignorant of his rights fails to apply and to that account is not given legal aid…his constitutional right will be violated.[22]

It is worthy of notice that while s.3-5 provides access to free legal aid with respect to a solicitor and counsel, s.2 limit such access to a solicitor. In Carmordy v Minister for Justice, Equality and Reform,[23] the applicant argued the constitutionality of s.2 of the Act of 1962 to the extent that it provides an accused person access to free legal aid in respect of a solicitor in a criminal matter before the District Court. The Court rejected the argument and held that regardless of the numerical imbalance or a divergence of legal qualification between the prosecution and defense, the accused’s case will not suffer detriment as long as his right to a fair trial is upheld. However, the Court admitted that the ineffectiveness of the lawyer may place the accused in a disadvantaged position.

Finally, it should be pointed out that the provision of legal aid under the Act of 1962 is carried out by short-listed private practitioners who are assigned by the court to represent indigent defendants and subsequently reimbursed by the State.[24] However, a problematic area under this Legal Aid service mechanism has been the issue of funding.[25] This has led to suggestions that it should be jettisoned while the public defender model should be adopted.[26]

Legal Aid- Custody Issues Scheme (Formerly the Attorney-General Scheme).

Under this scheme, (which is purely administrative), criminal matters that are excluded from the Act of 1962 and the Civil Legal Aid Act, 1994(discussed below) are given attention.[27] The scheme was considered in 1967 when it was agreed that the State would incur cost payable to legal practitioner involve in habeas corpus applications where it is established that the applicant lack the means to secure legal representations.[28] Presently, the scheme extends to matters that include: bail applications, judicial review and extradition application.[29]  Furthermore, there is a non-statutory legal aid scheme available to defendants charged under the Proceeds of Crime Act 1996, Social Welfare Consolidation Act 2005 and the Criminal Justice Act 1994.[30]

Access to a Lawyer in Garda Custody.

Initially, the position of the law was that the scope of Legal Aid does not cover the pre-trial stages of the criminal process.[31] In fact, the constitutional right of a detained person to be provided with a lawyer whilst in Garda custody was dependent on detainees’ request for such service.[32] However, in 2014, the Supreme Court’s position in The People (DPP) v Gormley[33] altered the legal landscape. In that case, the court pronounced that it may decide in a future case that the failure to inform a detained person of his or her right to have a solicitor present during questioning would be in breach of the Constitution.

 

Civil Legal Aid and Advice Scheme

Pre-Enactment of the Civil Legal Aid Act, 1994

As explained earlier, Ireland has always resisted the introduction of Civil Legal Aid into its legal system. This may not be unconnected to the economic downturn experienced by the newly independent Free State, coupled with government disinterest in social welfare program and the determination of the disgruntled Legal profession to insulate itself from the control of the government.[34]

However, following recommendations by the Pringle’s committee[35] in 1977 and the intervention of the ECtHR in Airey’s[36](discussed above), the Irish government conceded to the introduction of a scheme for Civil Legal Aid. The resultant effect of these circumstances was the introduction of an administrative scheme for Civil Legal Aid to be administered by the newly instituted Legal Aid Board in 1979.[37] The rationale behind the non-statutory approach was that it enabled the service to be established quickly and allowed for flexibility in the operation of an entirely new social service.[38]  The scheme was considered to be poorly funded and limited in its application.[39] Not surprisingly, at that time, Legal Aid in civil matters was only granted to a person detained in the central mental hospital[40] and parties to ward-ship proceedings.[41]

Owing to these facts and others, the scheme was eventually placed on a statutory footing under the Civil Legal Aid Act, 1995 (hereinafter ‘the Act of 1995’).

 

The Civil Legal Aid Act, 1995

Presently, the Act of 1995 regulates the provisions of legal aid[42] and advice[43] in civil matters in Ireland. In conformance with the 1979 scheme, the Legal Aid Board retained its administrative position under the present regime.[44] Its objectives are to make available legal aid and advice, as much as its resources would allow to persons who qualify for such services and to disseminate information as to services rendered.[45] In Kavanagh v Legal Aid Board[46], the plaintiff sued for breach of statutory duty because her application for legal aid was delayed for twenty months before it was eventually granted. The court dismissed her claim on the ground that the board’s role in providing legal aid and advice under s.5 is dependent on the resources at its disposal. The court reasoned that the waiting list mechanism applied in this case favorably position the board to allocate its resources in order to discharge its obligation.

Since the right to legal aid and advice is not absolute, potential beneficiary must pass the twin test of means and merit. However, the eligibility criteria for legal advice are limited to the means test.[47] The merit test is contained under s.24. It provides that a person shall not be granted legal aid unless, in the Board’s opinion, a reasonably prudent person who could afford to engage such services will be likely to do so and where a solicitor or barrister would be likely to advise such a person to obtain such services at his or her own expense.[48] s.29 spell out the ‘means test’. It provides that a person cannot be granted legal aid or advice unless (a) he or she satisfies the requirements concerning financial eligibility specified in the Act and in any Regulations made under the Act[49]; (b) pays a contribution to the Board towards the cost of any legal aid or advice, the level of contribution to be laid down in Regulations under the Act.[50] The financial eligibility criterion is determined by the applicant’s disposable income and, in certain circumstance, the disposable capital which are reviewed occasionally under the Legal Aid Regulation.[51]

In furtherance to the general eligibility criteria for the provisions of legal aid and advice, specific requirements are provided for obtaining either.[52] However, it should be noted that the power of the Board to grant legal aid does not extend to matters excluded under 28 (9).[53] In addition, the board is retrained in providing legal aid in respect of proceedings before any administrative tribunals except an order issued by the Minister to that effect states otherwise.[54] Now, while the Minister is empowered to extend the provision of legal aid in this instance, at present, only the Refuge Appeals Tribunal[55] enjoys such intervention. By implication, the scheme does not apply to proceedings before the Employment Appeals Tribunal, Social Welfare Appeals and the Equality Tribunals.[56]

With a statutory framework providing for the operation of civil legal Aid, it is relevant at this juncture to consider its position vis-à-vis the constitution. Thus, in O’Donoghue v Legal Aid Board[57], the plaintiff’s application for legal aid was delayed for two years before it was eventually granted. She contended that the delay was excessive and that it infringed on her constitutional right of access to the court and her right to legal assistance. The court accepted the argument of the Board to the extent that the paucity of fund necessitated the delay. Nevertheless, the court held that the plaintiff had a right to civil legal aid derived from her constitutional right to access to the courts and her constitutional right to fair procedures.  

Shortcomings of the Statutory Scheme

While the statutory recognition granted to the civil legal aid scheme was expected to ameliorate inadequacies experienced under the 1979 scheme, it appears that the scheme may have fall short of that expectation. In the first place, the scope of the extant civil legal aid scheme is not all encompassing.[58] The exemption of proceedings before administrative tribunals (discussed above) from the purview of legal aid is disturbing. The court as well as tribunals dispenses justice.[59] Persons appearing before administrative tribunals, many of whom are low-income earners and whose case may involve complex issues of law and fact, will be deprived effective access to justice if they are unable to secure legal representation, due to the non-provision of legal aid.[60] In addition, some civil matters excluded under s.28 (9) calls for revision. Apparently, the scheme made no provision for representative actions and test cases.[61] The exclusion of these matters has given credence to the opinion that the state understands legal aid as being primarily about the servicing of individual cases rather than about achieving law reform.[62]

In another instance, the scheme does not evaluate periodically the financial limits on eligibility.[63] Effectively, inflation caused by the consumer price index or the average industrial wage will deter potential litigants from benefitting from the scheme.[64] Finally, access to the court timeously by eligible applicants for legal aid under the scheme is severely threatened due to inconsistencies in the time for which legal aid services would be made accessible in each of the law centers.[65] It has been opined that increase funding and the use of private practitioners in relevant cases would go a long way in mitigating against the shortcoming.[66]

 

CONCLUSION

Legal aid is imperative if justice will be accessible to all. The systems for criminal and civil legal aid were developed to afford indigent Irish litigants the opportunity to seek redress in the law court albeit on prescribed grounds.  However, while the intent behind the introduction of legal aid is not in doubt, this essay has highlighted some of the manifest defects which threaten the essence of its introduction. In fact, many potential litigants stand the risk of having their issues unattended to if the status quo remain. Therefore, it is incumbent that stakeholders effect the necessary reform(s).

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