Irish Legal System and Precedent
Discuss About The Contingent Fees For Legal Services Economics.
The law of Ireland is based on common law, statutes and derives its principles from the Constitution. The constitution of Ireland is called Bunreacht na hEireann. The Constitution of Ireland is written and the form of governance in Ireland is democracy. The word precedent is also known as stare decisis in legal parlance by virtue of which the previous judgments of the courts are binding on future courts (O’Neill 2016). The judicial decisions are binding on certain courts. The powers rest with the Court to invalidate any legislation which is unconstitutional and violates the basic tenets of the Constitution. The Irish legal system has a very flexible take on precedents and applies them prospectively. By virtue of being a country following common law principles, the judiciary is bound to follow precedents (Morgan 2017). The legal system allows that case laws can be a valid source of precedence and that other courts are bound by previous judgments. The term stare decisis means to stand by the decision, which is, the lower courts have to follow the principle of law that has been enforced by an apex court (Mhuirthile, Sullivan and Thornton 2016). There are two parts to a court decision- the ratio decidendi and the obiter dictum, out of which the ratio decidendi is binding (Delgado and Stefancic 2017). There has always been difficulty in ascertaining the enforceability of a ratio decidendi.
Ratio decidendi is the reason or the rationale behind reaching a conclusion and the principle of reasoning is binding on the lower courts to follow. The decisions of the higher courts are binding on the lower court and this is enshrined in article 34.4 of the Constitution. There are landmark judgments that buttress the provision of precedence as found in article 34.4. In understanding the principle of ratio decidendi it is important to understand the principle in the light of hierarchy of courts because the orders of the lower courts are not enforceable on higher courts but the principle behind the order has a persuasive value (Steiner 2017). The dissenting judgments only have a persuasive value and they are not binding. Irish Shell v Elm Motors [1984] I.R 200 is a landmark judgment that upheld the significance of precedence. Costello J held that the lower courts are not bound to follow the decisions and judgments of the higher courts but if they are dissenting and not following the orders, there should be valid ground for rejecting the orders of the higher courts (Dahlquist 2016). This principle held by Costello was rejected by McCarthy wherein he held that the Irish Courts were not a continuation of British Courts but were merely following the guidelines and legal framework. The same logic was held in the case of Sparebank v Beirne (No 2) [1989] ILRM 57. The Court held that judgments prior to 1992 were binding on the court unless the Supreme Court had valid reasons to move away from them and reject their principles.
Legal Aid Board
The Legal Aid Board deals with giving aid and advice to people related to representation in court or legal advice by solicitors. The aid is given to people who satisfy the Board that their case has merit and that they do not have the finances to support themselves (MacKinnon 2017). Under Irish law every citizen is protected by constitutional rights and in cases when a constitutional remedy against any wrong applies to a person and that person does not have the financial backing to pay for legal representation, the State is duty bound to provide legal help by way of legal representation (Aleksandrov et al. 2015). This was done in keeping track with the observation of the Supreme Court where it was decided that a defendant shall be put on equal footing with the prosecution and his rights shall not be infringed because he does not have the financial means to represent himself. This rule shall be applied only when there lies a constitutional remedy and it is not an absolute constitutional right. The Criminal legal aid is free and is provided by the Criminal Justice (Legal Aid) Act 1962 (Doran and Leonard 2016). The discretion lies with the Judges to allow free legal representation. If the judge is convinced that the person does not have means to support himself in litigation, he shall grant criminal legal aid and thereafter issue a legal aid certificate. In cases where a legal aid certificate is not available, the person shall be entitled to apply for legal aid under separate schemes which are also free. Anyone willing to apply for criminal legal aid service has to do it at the inception of the case, which generally takes place at District Courts or Special Criminal Courts. By virtue of the Criminal Justice (Legal Aid) Act 1962 the accused is informed by the court about his right to legal aid. The accused is granted services of a solicitor who appears on the applicant’s behalf and also helps in preparation and presentation of the case.
The civil legal aid scheme was established in Ireland by virtue of the Civil Legal Aid Act 1995. The Minister for Justice, Equality and Law Reform states that any person who meets the requirements of sec 5(1) of the Act shall be entitled to civil legal aid. The aid shall include the appointment of a solicitor or barrister who shall represent and help the accused in legal assistance and shall represent in civil proceedings. The matters that fall under the legal civil aid are defamation, licensing, conveyance, election petitions and so on and so forth. There is lack of flexibility in civil legal aid and it is not similar to criminal legal aid. Some spheres of law are not included in the scope of civil legal aid. The Board gives legal aid in giving aid and advice in civil matters to those who are eligible to get assistance from the State. These services are funded by the state but civil legal aid does not come free of cost and the accused has to pay an amount called the “contribution”.
Civil Legal Aid and Criminal Legal Aid
The process of execution of legal system of the government is called administration of justice. The process of administration of justice takes into account the need of every citizen to get fair and equal access to justice. This is reinforced by the legislature of Ireland. The goal of the administration is to provide justice to everyone. Section 7 of the Criminal procedure Act 2010 talks about any offence that is against the administration of justice. Justice is how an administration is maintained to enforce fair and equitable rights (Feenan 2018). The conflicting interests of the legal system should be aligned towards ensuring that everyone gets fair treatment and treated equally in the eye of law. The administration of the society reflects in how a wrongdoer is treated and how punishment is meted out to anyone who has been accused of committing an offence (Kaczorowska 2015). The principles of the Constitution and other legislative documents should be read in the light of giving effect to the rights of the citizens. Being the follower of common law principles, it is necessary for the judiciary to uphold the principles of the Constitution. The judicial function is considered the third arm of the Government which aims to protect and enhance justice. The Courts are in charge of administering justice and assignment of merited awards in response to punishments. The judges are in charge of administering justice in line with the principles as enshrined under the Constitution.
The Court of Appeal Act 2014 empowered the setting up of the Court of Appeal. The main function of the Court of Appeal is to hear appeal cases from the High Court and the Circuit Court. The Court of Criminal Appeal and the Courts Martial Appeal Court used to deal with appeal cases initially which was later taken over by the Appeals Court. The hierarchy of courts needs to be understood in explaining the appeals cases. In cases the accused is not satisfied with the verdict of the lower court, he may apply to the higher courts to get redress. The person making an application for appeal is called the appellant. The Supreme Court is the highest court of appeal as that is the last resort that the appellants have for redress. The cases that go to the Supreme Court are the ones which deal with major public law wrongs. In cases when the appellant is in strict need of overturning the orders of the lower court and there is merit in cases related to public wrong, an appeal is preferred. The strength of the Court of Appeal is 9 judges along with a President. The President covers the role of an additional judge. The Court of Appeal does not have limited jurisdiction and its jurisdiction is flexible and it hears cases of both procedural and substantial merit (Marett 2018). In cases of appeals arising from the Court of Appeal, it is transferred to the Supreme Court. Appeal cases lie in matters related to public interest and also in matters related to justice.
Reference
Aleksandrov, A.Y., Barabanova, S.V., Vereshchak, S.B., Ivanova, O.A. and Aleksandrova, Z.A., 2015. Legal basis of free legal aid state system administration in the Russian Federation. Journal of Sustainable Development, 8(3), p.277.
Dahlquist, J., 2016. Beside the point—on obiter dicta in investment treaty arbitration. Arbitration International, 32(4), pp.629-640.
Delgado, R. and Stefancic, J., 2017. Critical race theory: An introduction. NYU Press.
Doran, J. and Leonard, B., 2016. The Power of Story: How Legal Aid Narratives Affect Perceptions of Poverty. Seattle J. Soc. Just., 15, p.333.
Feenan, D., 2018. Informal Criminal Justice. Routledge.
Kaczorowska, A., 2015. Public international law. Routledge.
MacKinnon, F.B., 2017. Contingent Fees for Legal Services: Professional Economics and Responsibilities. Routledge.
Marett, P., 2018. Information law in practice. Routledge.
Morgan, D.G., 2017. Guardian of the Treaty: the Privy Council appeal and Irish sovereignty. By Thomas Mohr. Pp 222. Dublin: Four Courts Press, in association with The Irish Legal History Society. 2016.€ 50. Irish Historical Studies, 41(159), pp.158-160.
Ní Mhuirthile, T., O’Sullivan, C. and Thornton, L., 2016. Fundamentals of the Irish Legal System: Law, Policy & Politics.
O’Neill, T.P., 2016. Book review: Lawyers, the Law and History: Irish Legal History Society Discourses and Other Papers, 2005–2011.
Steiner, E., 2017. Judicial Rulings with Prospective Effects: From Comparison to Systematisation. In General Reports of the XIXth Congress of the International Academy of Comparative Law Rapports Généraux du XIXème Congrès de l’Académie Internationale de Droit Comparé (pp. 15-27). Springer, Dordrecht.
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