Law Society has 'no role' to assign solicitors as judge slams lack of emergency cover for prisoners
Tom Tuite
The president of the Law Society of Ireland has said the organisation lacks the authority to assign solicitors to defendants, in response to a judge who suggested emergency cover amid ongoing industrial action.
Rosemarie Loftus replied to Judge Alan Mitchell, who commented at Cloverhill District Court, the country's busiest custody court, that striking doctors or nurses always have cover available during industrial disputes.
She outlined that it was not the institution's role and, "Accordingly, it would be inappropriate of the Law Society to nominate a solicitor to act for a particular individual. More fundamentally, such an action would fall outside the powers conferred upon the Law Society by statute and would therefore be beyond its legal authority".
The judge had asked the solicitors' professional society to step in and nominate a solicitor for a remand prisoner left without legal representation after his case was upgraded.
Mitchell described the response as "regrettable and very unfortunate".
"I made reference to circumstances where groups, maybe providing essential and urgent services, even if they were on strike, would arrange for a minimal level of cover to be available. I mentioned if doctors or nurses were on strike, or fire officers. It is always an understanding that there would be some minimal level of service provided for essential services, " he said.
"I would consider legal representation of somebody who is in custody is an essential service. I would have hoped as a result, even if there was a dispute, that the Law Society, as a representative body, and the various solicitors involved, would have agreed that a minimum level of service for people who are in custody, to enable them to be represented—to enable a bail application to be made on their behalf, where they might get released as a result, would be possible to be made."
Since the start of July, criminal defence solicitors have been engaged in a dispute with the Minister for Justice over the introduction of payment reforms for legal aid cases in the District Court.
They replaced the previous per-appearance rates with a flat fee of €520 per case.
Their industrial action has caused widespread disruption to cases at all levels in the courts.
Afghan national Nasim Sulemankhil (27), who is of no fixed address, was originally charged with unlawful possession of a knife following an incident at Cathal Brugha Street on April 24th.
He was refused bail the following day, when he was represented under the former scheme.
New system
After the new system commenced, the original allegation was replaced with more serious charges of affray and production of a flick-knife, and he was then left with no one to act for him because most solicitors withdrew their service or engaged in work stoppages in the criminal courts as part of industrial action.
After receiving a letter from the Law Society's president, Mitchell said it was important that he read portions of it to the defendant, who listened with the aid of an interpreter.
In her correspondence, she welcomed the judge's concern to ensure access to appropriate legal representation. "The Law Society fully endorses that objective. The right of every person appearing before the criminal courts to have access to legal advice and representation, particularly where their liberty is at stake, is a fundamental principle of justice and one which the Law Society has consistently sought to uphold and to protect. That principle applies with particular force where an accused person is in custody and where language barriers represent additional challenges in ensuring meaningful participation in the justice process."
Under the Criminal Justice Legal Aid Act 1962, the State is required to provide legal representation to persons of insufficient means in the interests of justice.
The court heard she stated: "The purpose of the legislation is to ensure that an accused person is placed on an equal footing with the considerable resources available to the prosecution and is afforded a fair opportunity to defend himself or herself against criminal allegations."
"For that reason, responsibility for ensuring that persons appearing before the criminal courts have access to legal representation is a constitutional and statutory responsibility solely of the State, and in practical terms with the system established and administered by the government through the Minister for Justice and the Department of Justice, the Criminal Justice Legal Aid Act 1962 is the mechanism through which the State discharges its constitutional obligations," she wrote.
"And the provision and administration of the criminal legal aid scheme are matters for the Minister and the Department, and not the Law Society. It has no role in assigning, appointing, nominating, or directing solicitors to act for individual defendants under the criminal legal aid scheme. Indeed, the Society is precluded from intervening in the creation of a solicitor-client relationship."
The Society's president emphasised that the body had "actively and intensively engaged for many months in seeking to resolve the current difficulties" and consistently advocated for measures designed to maintain access to legal representation.
"While the Law Society will continue to work constructively towards a resolution, I hope this clarifies the limits of the Law Society's functions in relation to the request contained in your correspondence, and the responsibility of the State in the provision of legal representation for persons of insufficient means in circumstances where the interests of justice require it."
