Conor Casey (University of Liverpool School of Law & Social Justice) Setting The Bounds Of The Constitutional Right To Pre-Trial Access To Legal Assistance In Ireland: The Constitution, The Convention, And The Supreme Court ((ed.) Liz Heffernan, Criminal Law and Justice in the European Union (Clarus Press, 2022)) on SSRN. Here is the abstract:
The right to pre-trial access to legal assistance in the Irish legal system is grounded in the dynamic intermingling of two main sources of law – the Irish Constitution and the European Convention on Human Rights (‘ECHR’). This chapter uses the example of the right to pre-trial legal assistance to critically interrogate two interesting jurisprudential trends discernible from this intermingling.
Part I briefly outlines the current constitutional parameters of the right to pre-trial legal assistance and the rich impact the ECHR has had in shaping it. Part II discusses two interesting trends from this area of jurisprudence. First, this author argues it highlights a judicial tension between wishing to harmonise the Irish Constitution with European human rights law best practice on the one hand, and respecting the distinct facets of the Irish legal order and indirectly incorporated status of the ECHR on the other. Second, evolution of the law in this sensitive area of policy is highly—near exclusively—judicial driven. It is argued that this reflects the fact Irish legal culture regards questions of constitutional interpretation—such as what constitutes fair process—as uniquely the preserve of the judiciary. This author suggests that this has helped lead to a lack of direct political branch intervention in specifying the bounds of pre-trial legal assistance through statute and ministerial regulations. This chapter is concluded by discussing the advantages of encouraging all branches of government–including executive and legislative—to reflect on how best to codify and clarify this area of law.
