The provision of Criminal Legal Aid
Michael Farrell
The International Covenant on Civil and Political Rights (ICCPR) and the European
Convention on Human Rights (ECHR) both require the provision of free legal assistance
to indigent persons charged with criminal offences.
ICCPR, Article 14.3
In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality:
(d) to be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal assistance assigned to him,
in any case where the interests of justice so require, and without payment
by him in any such case if he does not have sufficient means to pay for it;
ECHR, Article 6.3
Everyone charged with a criminal offence has the following minimum
rights:
(c) to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal assistance, to be
given it free when the interests of justice so require;
Why do the two main international conventions protecting civil and political rights so
strongly assert the right to free legal aid in criminal cases?
Ireland, which is a party to both the ICCPR and the ECHR, has a criminal legal aid
scheme but every year when the Government publishes figures for the amount of money
spent on criminal legal aid for the previous year - €28.6 million in 2003 – there is an
outcry by the more sensationalist elements of the media. They complain that, at a time
when crime rates are high, money is being spent on defending criminals and on making it
difficult to convict them. It is a popular theme for some sections of their audience – at
least until some of their own friends or relations get into trouble with the law.
So why do we spend large sums of money on criminal legal aid?

Solicitor, Member Irish Human Rights Commission
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The first point to be made, which is a rather obvious one, is that quite a few of the people
on whom this money is spent are not criminals and will be acquitted of the charges
against them, and that there is a presumption of innocence for all persons coming before
the courts.
The second point was made very forcibly in the leading case that established that there
was a constitutional right to legal aid in Ireland (The (State) Healy v. Donoghue [1976]
I.R. 325). This case involved two men who were charged with fairly routine car theft
offences and whose lawyers did not appear in court due to an industrial dispute. The
judge insisted on dealing with the case in the absence of the lawyers despite the
defendants’ protests.
The case was appealed to the Irish Supreme Court, which considered it in light of Article
38.1 of the Irish Constitution, which says: “No person shall be tried on any criminal
charge save in due course of law”, and the fundamental right to liberty protected by
Article 40.4.1 of the Constitution. The then Chief Justice first of all made clear that trial
in ‘due course of law’ required that the trial must be fair and the accused person must
have an opportunity to defend him/herself.
He then set out very firmly the reasons why the ordinary citizen required legal assistance
in order to have a fair chance of defending her/himself and went on to say that if the
accused did not have the means to pay for legal representation, then if the constitutional
right to a fair trial was to mean anything, the State should fund his/her defence.
It is worth quoting the judgment at some length:
“Where a man’s liberty is at stake, or where he faces a very severe penalty which
may affect his livelihood, justice may require more than the application of normal
and fair procedures in relation to his trial. Facing, as he does, the power of the
State, which is his accuser, the person charged may be unable to defend himself
adequately because of ignorance, lack of education, youth or other incapacity. In
such circumstances his plight may require, if justice is to be done, that he should
have legal assistance. In such circumstances, if he cannot provide such assistance
by reason of lack of means, does justice under the Constitution also require that
he be aided in his defence? In my view, it does....
“If the right to be represented is now an acknowledged right of an accused person,
justice requires something more when, because of lack of means, a person facing
a serious criminal charge cannot provide a lawyer for his own defence. In my
view the concept of justice under the Constitution ... requires that in such
circumstances the person charged must be afforded the opportunity of being
represented.
“This opportunity must be provided by the State. Only in this way can justice be
done, and only by recognising and discharging this duty can the State be said to
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vindicate the personal rights of the person charged. To hold otherwise would be
to tolerate a situation in which the nature and extent of a man’s ability to defend
himself, when accused, could depend on the nature and extent of his means; that
would be to tolerate injustice.”
The fundamental rights and fair trial provisions of the Irish Constitution mirror fairly
closely the equivalent provisions of the ICCPR and the ECHR, so the Chief Justice’s
reasoning applies just as much to the provisions on legal aid in the international
conventions as to the domestic situation in Ireland.
The third point in support of publicly funded criminal legal aid is linked to what the Irish
Supreme Court said in the Healy v. Donoghue case. For a justice system to work, it must
have credibility and have the confidence of the general public. The public must believe
that justice will be done in their courts, that only the guilty will be convicted, and that
judicial decisions will be made based on the evidence, and not on prejudice, political
influence or corruption.
If the public do not have confidence in the courts, then they will not cooperate with the
police or give information or evidence, lest it might lead to an innocent person being
convicted or just because they do not believe that they will get justice if they do.
Good legal defence work is essential to ensuring, as far as possible, that justice is done
and that the public can have confidence in the outcome of trials in the courts. And such
confidence is essential to a functioning democracy where peoples’ energy is devoted to
building a just and inclusive society and which can win the confidence and respect of
other countries and societies.
I feel this particularly strongly as I am originally from Northern Ireland where, at the
height of the conflict there, very many in the minority community lost confidence in the
courts and justice system, which in turn helped to prolong the conflict. As a result, the
administration there has had to work very hard and introduce far-reaching reforms in
order to try to rebuild confidence in the justice system.
In Ireland (the Republic) there was a recognition from just after the foundation of the
state in the early 1920s that legal assistance must be provided for those accused of
murder, in particular, because of the gravity of the consequences if a mistake was made
when capital punishment was still in existence. -- I am glad to be able to say that capital
punishment has not been used in Ireland for 50 years now and was finally and totally
abolished in 1990.
Legal aid was granted in Ireland in the early years on an ad hoc basis for charges of
murder and other very serious offences.
Gradually over the years criminal legal aid was extended and in 1962 a Criminal Justice
(Legal Aid) Act was passed, although it was still not very comprehensive in its coverage
and many poorer people coming before the courts do not seem to have been aware of
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their entitlement to legal aid. In the Healy v. Donoghue case the Supreme Court also
said that courts must tell accused persons that they were entitled to legal aid and the result
was that the cost of the legal aid scheme increased five-fold over two years, between
1975 and 1977.
Since then, a number of other cases and amendments to the law have clarified the
parameters of the legal aid scheme, which is now broadly satisfactory, although there are
still a number of areas which have important implications for criminal law that are not
covered. And, of course, this scheme does not cover civil matters, which are dealt with
under a much less satisfactory scheme.
The criminal legal aid system in Ireland is based on State funding of private legal
practitioners to represent persons accused of offences. There is a means test but legal aid
is generally made available to persons who are unemployed or in receipt of social welfare
benefits or on low wages – which are of course still fairly high by Chinese standards.
There is no formal upper limit above which someone will not be eligible for criminal
legal aid but the upper income level for civil legal aid, which is €13,000 per annum,
provides an indicator of how the courts will view applications.
Legal aid is provided only for offences that may incur a custodial penalty, though the
court no longer makes a decision as to whether such a sentence is likely to be imposed in
the particular case before granting a legal aid certificate. Legal aid usually provides for
only one lawyer, a solicitor, to appear in the lowest court, the District Court, which has an
upper limit in terms of penalty of two years imprisonment.
In the higher courts, legal aid will also provide for one or more barristers – who
specialise in court advocacy. It will also cover the cost of engaging professional
witnesses, e.g. medical practitioners, forensic scientists etc., where necessary. It also
covers appeals against conviction and/or sentence.
Lawyers willing to do criminal defence work are placed on a panel and an accused person
can choose from the panel members, although s/he does not have an absolute right to
have the lawyer of his/her choice. The court appoints the legal representative from the
panel but would only interfere with the accused’s choice in very exceptional
circumstances, such as a clear abuse of the system. Not all lawyers, incidentally, are
willing to serve on the legal aid panel as criminal defence work is not nearly as lucrative
as e.g. commercial legal work, and is regarded, rightly in my view, as difficult and
stressful.
In the last five years, the legal aid scheme has been extended to lawyers visiting and
advising clients detained for questioning by the police, which is something for which
lawyers had been pressing for many years. Prior to that, lawyers had often been reluctant
to visit clients in police stations when it took them away from the courts or their offices
for significant amounts of time and was unpaid. And yet the period of police questioning
is one of the points at which legal advice is most needed by the client.
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The scheme still does not cover bail hearings, habeas corpus applications or judicial
review, which is the main way in our system of challenging the constitutionality of
statutes and the legality of administrative actions. There is financial assistance for this
type of work but it is based on a non-statutory scheme, called the Attorney General’s
Scheme, which is poorly paid when compared with other legal work of similar intensity
and complexity. The result, which some lawyers feel is deliberate, is to discourage to
some degree innovative legal challenges to executive actions.
There has been some consideration of the introduction of a public defender scheme in
Ireland, driven mainly by cost-cutting concerns, but most lawyers are opposed to it.
Some of the opposition is, of course, self-interested, based on a fear that it would reduce
earnings, but there is also a concern, based on looking at the US experience, that such a
scheme would be under-funded and under-resourced and would thus provide a poorer
service to clients. One of the principal grounds of appeal in death sentence cases in the
US in recent years has been claims of inadequate and incompetent legal representation at
trial under the public defender scheme. I should, of course, also say that there are some
really excellent public defender lawyers in the US who do great work under very difficult
conditions.
There is also some concern that in a state-run system, promotion and advancement would
not go to those who showed the most enthusiasm for defending their clients, thus
gradually making the system less effective.
Neither of these concerns is insurmountable. A well-funded public defender system
established on a totally independent basis could be just as effective as our present system.
And in fact we have some publicly funded bodies that provide legal representation in
equality law cases and to asylum-seekers that have shown their independence over the
years, but the gross under-funding of the Government-financed (Civil) Law Centres
would not encourage one to think that adequate resources would be put into a public
defender scheme.
Legal costs, of course, do not have to be as high as they are in Ireland, but if criminal
defence work is to attract and keep well-qualified and experienced practitioners, the fees
paid must be in some way comparable with what such practitioners could earn in other
areas of law in the particular country in question.
If criminal legal aid is essential to the integrity of the justice system and the protection of
the rights of accused persons, as the Irish Supreme Court said in Healy v. Donoghue in
1976, then it is important in each country to ensure that it is not a second rate service or
that will tend to undermine confidence in the whole justice system.
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