Where a person is accused of a crime or under investigation by the Gardai, that person will qualify for legal advice from a solicitor in a gardai station provided they have been formally detained for interview or questioning. It is frankly suicidal in this writer’s professional opinion, not to avail of a solicitors advice in a gardai station. An experienced criminal defence solicitor will be able to advise you on your legal and human rights. The attending garda station solicitor will be able to give the detained person a steer on the strength of the evidence and possible court outcomes. As a court solicitor I have over 10 years fulltime practice in criminal law.
Where a person is charged or summonsed to the District Court (all cases from murder to braking a red light start in the District Court) they may be able to apply for criminal legal aid or free legal aid. Historically, the test for the grant of a certificate for criminal legal aid was based on the seriousness of the charge and whether the person had the financial means to pay for his or her own defence. Under the legislation, a court solicitor could be appointed to an accused, if in the interests of justice such a certificate was merited. If say, the case was complex or the person’s livlihood was at stake. In these tumultous recessionary times this latter test, has in the writer’s opinion been watered down by the Courts and now the principal criterion for granting legal aid is whether the accused person as at actual risk of a jail or custodial sentence. This stance by the Courts does of course result in an injustice as many first time defendants unable to afford legal representation may end up pleading guilty and being stigmatised for life with a criminal record. Nobody likes criminals, but every case and every defendant is different. People who come before our courts are often not career criminals but people down on their luck or who have done something stupid in the spur of the moment or ………. heaven forbid who are innocent of any wrongdoing.
Any person charged with a criminal offence has an automatic right to apply for bail unlees the Gardai can show that the person will not turn up for Court, or will intefere with witnesses. In the case of serial defendant the Gardai can object to bail on the ground that if the serial defendant is given bail they will commit further crime while on bail.
A District Court Judge should never remand (put) a defendant in custody or jail (either of its own motion or on foot of a garda objecting to bail) without, at the very least, offering or assigning a solicitor to act for that person. The assigned solicitor can fairly and on the merits, (if any exist) apply for bail on their behalf. Unfortunately, a practice has arisen in recent times where the Gardai have no objection to bail in a case, the District Court Judge may not give bail (thankfully a very small minority of District Court Judges behave in such a manner). The Judge, will fix a cash amount of bail and/or a surety guarantee as bail terms. Such bails terms nearly always arise due to the existence of a bench warrant or several bench warrants (the person may not have shown up for court and had to be arrested and brought to Court). I am only giving out about cases where the Gardai are not objecting to bail here. The person is remanded in custody with consent to bail so the order is not a denial of bail but it is an instant loss of liberty and liberty is the most fundamental constitutional right we have. The offence against the person may be very minor but what happens is they are put in jail (with all the resultant cost to the taxpayer and overcrowded remand jails) until the bail terms are met or their case is finalised. This practice infuriates me as frequently, I have seen it happening to non-nationals who end up in a remand jail when their incarceration serves no useful purpose. Any such action may be an infringement of a person’s liberty and may ground an application to the High Court for their immediate release by way of Haepus Corpus. If the detained person is a foreign national they have no knowledge of our law then how do they know their right to liberty has been infringed…………….
Clearly having the advice of a criminallawyer.ie ……..might be of benefit. This blog post is just that, a blog post.The views expressed are just the personal views of the writer and do not amount to legal advice.
If you need urgent legal advice on any aspect of the criminl law either at the investigation stage or it’s too late and your going to Court then please email peterconnolly directly or telephone him anytime 24/7.