Costigan v Brady & DPP

• Jurisdiction: Ireland
• Judge: Quirke J.
• Judgment Date: 06 February 2004
• Neutral Citation: [2004] IEHC 16
• Docket Number: [2003 No. 566 JR
• Court: High Court
• Date: 06 February 2004

[2004] IEHC 16

THE HIGH COURT

[2003 No. 566 JR

COSTIGAN v. BRADY & DPP

JUDICIAL REVIEW

BETWEEN

ROSE COSTIGAN

APPLICANT

AND

JUDGE PATRICK BRADY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S4

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2

O'NEILL V BUTLER 1979 ILRM 243

JUDGMENT of

Quirke J.

1 delivered the 6th day of February. 2004.

2 In this case the applicant Rose Costigan seeks relief by way of judicial review including (a) an order ofcertiorari quashing an order of the first named respondent made on 19^th May, 2003, refusing an application made on behalf of Ms. Costigan for legal aid (b) an order requiring the first named respondent to reconsider the application and (c) an order staying the proceedings in the District Court pending the determination of these proceedings.

3 The following facts are not in dispute.

4 1. The applicant appeared before the first named respondent in Kilmainham District Court on 19^th May, 2003, charged with an offence contrary to the provisions of s. 4 of the Criminal Justice (Theft and Fraud Offences) Act,2001.

5 An application was made on her behalf to District Judge Brady for a certificate for free legal aid. That application was accompanied by a completed statement of means certificate and it was indicated that the Director of Public Prosecutions had consented to the summary trial of Ms. Costigan in respect of the charge concerned in the District Court.

6 2. Judge Brady inquired of Sergeant Gabriel McGrath, who was then acting as court presenter on behalf of An Garda Síochána in respect of the charge preferred against Ms. Costigan, whether he was of the opinion that Ms. Costigan was "at risk" in respect of the charge. Sergeant McGrath interpreted this as an inquiry as to whether, if Ms. Costigan was convicted of the charge preferred against her, she was likely to receive a custodial sentence.

7 Sergeant McGrath, having considered the matter and upon discovering that the value of the property which was the subject of the charge preferred against Ms. Costigan was €4.66, replied that it was his opinion that Ms. Costigan was unlikely to receive a prison sentence if convicted of the charge preferred against her.

8 Having heard submissions from counsel on behalf of Ms. Costigan Judge Brady refused to grant Ms. Costigan the certificate which had been sought on her behalf.

9 3. On 9^th June, 2003 counsel on behalf of Ms. Costigan renewed the application to the District Court on her behalf for a certificate of legal aid. Judge Reilly (who was then sitting) refused to grant a certificate indicating a reluctance to interfere with the earlier order made by Judge Brady.

10 4. On 16^th July, 2003, counsel on behalf of Ms. Costigan again renewed the application for legal aid before Judge Brady submitting that, arising from a consultation with Ms. Costigan, her solicitor was of the opinion that Ms. Costigan was not in a position to represent herself and was accordingly at risk of receiving a custodial sentence in respect of the charge preferred against her. In response to an inquiry made by Judge Brady the then court presenter Sergeant Eamon O'Hara replied that he accepted what had been stated on behalf of Ms. Costigan by her counsel.

11 Judge Brady indicated that he disagreed with this view and refused to grant Ms. Costigan the certificate which had been sought on her behalf.

12 5. On the afternoon of 16^th July, 2003, in Kilmainham District Court Judge Brady sought to clarify his decision but neither the applicant nor her legal advisers were present. The following day which was 17^th July, 2003, Judge Brady advised counsel on behalf of Ms. Costigan that he wished to clarify his reasons for refusing Ms. Costigan a certificate for legal aid. He then indicated that having considered the value of the food items with which Ms. Costigan was charged with having stolen (€4.66), he had concluded that the applicant was not at risk of receiving a custodial sentence and indicated further that the items might in turn be regarded as "necessities".

13 6. It is acknowledged on behalf of all of the parties to these proceedings that Ms. Costigan does not have assets or income sufficient to enable her to obtain professional legal representation from her own resources.

14 7. It is further acknowledged on behalf of all of the parties that at all times material to these proceedings, and in particular on 19^th May, 2003, 9^th June, 2003, 16^thJuly, 2003, and 17^th July, 2003 Ms. Costigan was represented by either solicitor or counsel or by both.

15 Section 2 of the Criminal Justice (Legal Aid) Act,1962provides as follows:

"(1) If it appears to the District Court;"

(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid and

(b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it,

16 the court shall on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court)...