The Gazette 1979

SEPTEMBER1979

GAZETTE

COMMENT:

The Public Defender: A Useful Concept — somewhere else?

In a recent, but little publicised speech to the Conference of European Ministers of Justice, the Minister of State for the Department of Justice, Mr. David Andrews, referred to the fact that the Tormey Committee on Criminal Legal Aid was considering the advantages of the Public Defender System. While the Minister was careful to indicate in his speech that he did not think it right to express a personal view on the merits of a salaried service it must be taken as very significant that reference was made to the proposals on such an occasion. While it has been rumoured for some time that the introduction of a Public Defender System, to replace the present Criminal Legal Aid Scheme, was being mooted, it was only in the early summer of this year that any indica- tion was given by the Tormey Committee to outside bodies that the matter was under serious and apparently urgent consideration. It seems unfortunate that the views of the Professions were being sought during what is for many practitioners a holiday period and with peremptory time limits. The Public Defender System originated in the United States under the Federal Public Defender Services Legis- lation of 1964 and 1970 which followed the seminal decisions of the United States Supreme Court in Gideon v. Wainright and Miranda v. Arizona the first of which established that a person accused in the Federal Courts of a felony (an offence for which the penalty is a year's imprisonment or more) has the right to be represented by Counsel and the Miranda case imposed an obligation on the Police to a suspect taken into custody of his right to Counsel. In the United States the control of the establishment of a Federal Public Defender's office is under the control of the United States District Court with the approval of the Judges of the Federal Circuit for the area and there is pro- vision both for the employment of full-time salaried employees in a Federal Public Defender's office and for the establishment of a panel of private practitioners with a statutory proviso that at least 25% of the persons charged with federal offences have to be defended by a panel attorney. The Federal Public Defender's office has been estab- lished in most states and is funded out of the funds pro- vided for the administration of the Courts. There is an interesting statutory provision that the salary of the Public Defender in any district is not to exceed die salary of the United States Attorney for the District and the salaries of lawyers in the Federal Public Defender's System are linked to those in the office of the United States Attorney for the district. It appears that salaries in the Federal Public Defender Service are generally found acceptable by lawyers and it appears to be the position that posts in the Public Defender system are chosen by lawyers who propose eventually to go into private practice as Trial Lawyers as a useful training ground. The same situation does not appear to the panel attorneys

where there is dissatisfaction about the level of remunera- tion and it is suggested that the top 10% of Criminal Practice Firms do not apply for panel membership. It is significant that State Public Defender systems are not at all so well funded. A recent instalment of the BBC 2 Television series "Circuit 11 Miami" provided a brief insight into the operation of a State Public Defender System, though largely in relation to the operation of the "Plea- Bargaining" practices so common and allegedly so necessary in the overworked Florida judicial system. The Public Defender Attorney shown, appeared to have behaved reasonably and properly within the limits of the "Plea-Bargaining" system but his client expressed himself as being totally dissatisfied and clearly regarded the Public Defender as being an ally of the prosecutor and the judge in "the System". The fact that the "Plea- Bargaining" system operated at all makes it very difficult to assess the operation of a Public Defender Systme but there does appear to be reasonable satisfaction with it. Whether such a system translated to the Irish scene would work is however a totally different question. There is unfortunately no history of paying top professional people in the Public Service salaries comparable to those which they would earn elsewhere either in private prac- tice or as whole-time employees of commercial organisa- tions. It is well known that great difficulty has been found in filling certain local authority Law Agent and Assistant Law Agents' positions in recent years and it is difficult to avoid the conclusion that this is due to the low status in the Public Service which the Law Agent holds, in spite of the enormous responsibility and wide range of legal problems that he is expected to deal with, and the "dead hand" of the first Devlin Report has left the salaries of Law Agents and Assistant Law Agents well below those on offer in private practice or for salaried solicitors in commercial organisations. The gap between the starting salaries in the Public Service, which are not inadequate and the top salaries which do not compare favourably with outside salaries is far too narrow and must be seen as a deterrent to many prospective applicants. It is to be feared that if a Public Defender System was introduced in Ireland, particularly if one of the motives for its introduction was the hope of a reduction in the present very modest cost of a Criminal Legal Aid Scheme, no effort is likely to be made to ensure that the top posts in the system are adequately remunerated or carry a suitable status and accordingly while it may prove possible to recruit adequately at lower levels the system is unlikely to attract the calibre of appointee at its top levels to give the system the status which it would need if it were to be seen as a genuine attempt to cope with the needs of accused persons without means and not merely as a sop to public opinion or the European Court of Human Rights.

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