The Supreme Court has ruled that Edward Carmody cannot be tried on 42 District Court charges unless he is first given an opportunity to apply for legal aid covering both a solicitor and counsel, with that application decided on its merits.
The Court allowed Carmody’s appeal and declared that defendants facing criminal prosecution in the District Court have a constitutional right to apply for legal aid that includes counsel where the interests of justice require it. It ordered that the State must not proceed with the prosecution until Carmody is afforded that opportunity.
The ruling does not grant Carmody legal aid for counsel. The Court said it was not deciding whether the circumstances of his case entitled him to that assistance. That decision must be made by a court or other body given authority by the State to assess applications.
Carmody, a farmer in County Kerry, had been granted legal aid for a solicitor. The 42 charges concerned alleged cattle movements, record-keeping and failures to deliver animal identity cards, in connection with regulations intended to address brucellosis. He argued that the number and complexity of the charges, the possible penalties and the prosecution’s use of counsel meant he should be able to seek publicly funded representation by counsel as well as a solicitor.
The High Court had dismissed his constitutional challenge and his request for a declaration that the relevant legal aid law was incompatible with the European Convention on Human Rights. The Supreme Court addressed the constitutional issue first. It said a declaration of incompatibility would not resolve Carmody’s complaint about his ability to obtain legal representation in the pending prosecution.
The Court held that the District Court’s legal aid powers under the Criminal Justice (Legal Aid) Act 1962 did not allow it to consider granting counsel in any case. That restriction denied an indigent defendant the opportunity to seek representation that could be essential to a fair trial in a particular case. The Court said legal aid for a solicitor would remain sufficient in most District Court cases, but that gravity, complexity or other exceptional circumstances could make counsel necessary.
The Court did not declare the 1962 Act unconstitutional. It found that the failure to provide a means of applying for counsel aid arose from the State’s failure to make provision for it, rather than from a prohibition in the Act. It also did not reach the Convention compatibility question, finding the constitutional remedy adequate.