The Gazette 1961 - 64

arguable." Another of the judges thought that it was " faintly arguable." In addition it was held that no order should be made against the solicitor to pay costs in pursuance of the jurisdiction over solicitors unless fair notice is given to the solicitor of the matter alleged against him as misconduct and unless he was given a fair opportunity of being heard in answer. In this case the solicitor had not been given such an opportunity and on that ground alone, apart from the fact that in the opinion of the Court of Appeal there had been no misconduct, the decision of the Divisional Court should be reversed. (The IMW Times. May 3rd, 1963). The Court of Criminal Appeal in England allowed the appeal of three defendants against their con victions at Lincoln Assizes on February 8th 1963. The appellants were accused and convicted of aiding and abetting an affray at Scunthorpe on September 8th, 1962 in which a number of Somalis fought with a num ber ot white men and one Somali was killed. The basis of the appeal was a complaint that the trial judge had wrongly directed the jury as to the law of aiding and abetting an affray. All the appellants had stood and watched at the fight and it was the prosecution's case at the trial that they were thereby aiding and abetting it. The judge has a printed direction on the law which he handed to each member of the jury and paragraph 4 of this direction ran as follows : " Every person is however a party and guilty who d) agrees that such a fight should take place and in pursuance of that agreement is later present at it. (2) Without such agreement unlawfully joins in such fight or being present chooses to remain either (a) knowing that his continued presence encourages the fight or (b) intending to join in the fight it his help was needed by his side." Exception was taken by the defence to paragraph 4 (2) (b~) and it was said that in effect the judge had told the jury that they were in duty bound to convict an accused person who was proved to have been present at an affray if it was also proved that he nursed an intent to join in if his help was needed. This was said to be so notwithstanding that he did nothing by word or deed to execute his intention. If this were right a man might be convicted for his thoughts. In the opinion of the court encouragement in one form or another was the minimum requirement before an accused person could be a principal in the second degree of any crime. In the present case paragraph 4 (2) (b) amounted to a basic misdirection tor the jury might well have thought they were bound tp Mere presence at an affray not sufficientfor a conviction of aiding and abetting

COMMITTEE ON COURT PRACTICE AND PROCEDURE The Committee on Court Practice and Procedure are at present considering the question of civil jury trial with a view to making recommendations to the Minister for Justice as to whether this mode of trial should be modified or abolished. The Committee are prepared to hear evidence from members of the legal profession on this matter. Persons wishing to attend a meeting of the Committee for this purpose should write to the Secretary at the Four Courts, Dublin, or ring 76642, Extension 42. Order against solicitor to pay costs reversed The Court of Appeal has reversed the decision of a Divisional Court which had ordered a solicitor to pay fifteen guineas the costs of a successful appeal by the prosecution from a decision of justices dismissing summonses in a road traffic case. This case was reported in the January issue of the GAZETTE at page 68. The informations were laid against the accused, whom the solicitor represented before the justices, in February 1961 five weeks after the alleged offence. The respondent could not then be found and the summonses were not served until September :8th, 1961. The solicitor had taken the point that the proceedings were barred by lapse of time and this was held by the Divisional Court to be a bad point. The particular section upon whiich the point was taken provides that summary proceedings for the offence should be " brought" within six months from the date of commission of the alleged offence and the solicitor had submitted that the proceedings were not " brought " until the summons was served. In the Court of Appeal it was stated by Lord Denning M. R. that the solicitor appearing as he was on behalf of the accused had a duty to take any arguable or even bad point which could honestly be put before the court on behalf of his client. An advocate had not to determine whether a point was good or bad. His duty was to take any point available and it would only become misconduct if it was dishonest, if he knowingly took a point and thereby deceived the court. Nothing short of that would amount to misconduct in an advocate. Lord Denning described the point taken as "fairly DECISIONS OF PROFESSIONAL INTEREST