Director of Public Prosecutions v S.M.

• Jurisdiction: Ireland
• Judge: Mr Justice Barry O'Donnell
• Judgment Date: 02 October 2024
• Neutral Citation: [2024] IEHC 566
• Court: High Court
• Docket Number: [Record No. 2024/111/SS]

In the Matter of Section 52 of the Courts (Supplemental Provisions) Act 1961, As Amended

Between

The Director of Public Prosecutions

Prosecutor

and

S.M.

Defendant

[2024] IEHC 566

[Record No. 2024/111/SS]

THE HIGH COURT

Legal aid - jurisdiction - District Court - High Court

Facts: The questions presented which concerned legal aid arose early in the prosecution. The preliminary issue to be determined was whether, as urged by the defendant, the court should substantially reformulate the questions presented in order to address legal questions that were not asked by the learned District Judge. The Prosecutor submitted that reformulatiion ought only be considered by the High Court with the real issue arising on the facts as found by the District Court. The reforulated question was: Whether the District Judge had jurisdiction to asign three seperate solicitors to the defendant, to cover three separate and unrelated offences, as opposed to assigning one solicitor to deal with all three?

Justice O'Donnell found that the relevant provisions must be interpreted as expressing an intention on the part of the Oireactas that only one solicitor can be assigned in respect of a District Court legal aid certificate.

Judgment delivered by Mr Justice Barry O'Donnell on the 2 ^nd day of October 2024

INTRODUCTION

1 . This judgment answers a consultative case stated from the District Court. The questions presented arose at an early stage in the prosecution of the defendant on certain criminal charges and concern an application for legal aid. At the outset of the proceedings, the court made an order anonymising the identity of the defendant. This was done with the consent of the parties and on the basis that the defendant is a person under the age of eighteen years old and that his identity is protected in the underlying criminal proceedings.

2 . However, the primary and preliminary issue that requires consideration is not the legal questions posed by the District Court, but, instead, is whether, as urged for by the defendant, this court should substantially reformulate the questions presented in order to address legal questions that were not asked by the learned District Judge.

3 . While there is always scope to reformulate the legal questions presented in a consultative case stated or to provide some explanatory context for an answer, that reformulation must be accomplished (a) by reference to the facts as found by the District Court, and, in light of those facts, (b) to ensure that the legal issues that gave rise to the case stated are answered clearly so that the District Court is assisted in resolving the case before him or her.

4 . In this case, I have concluded that the proposed reformulation cannot be permitted. Primarily this is because the reformulation is premised on a factual scenario that contradicts the facts found by the District Court and that are set out clearly and carefully by the learned Judge in the body of the case stated. In addition, the reformulated questions – even if they are questions that have the potential to arise at some point in the underlying proceedings – are not questions in respect of which the learned Judge has sought assistance. Accordingly, if the course proposed by the defendant was adopted it would have the effect of having the court provide an advisory opinion on a hypothetical question. That is not the purpose of a consultative case stated. At a more systemic level, the proposed course of action has the potential to develop the important statutory facility provided for in section 52(1) of the Courts (Supplemental Provisions) Act, 1961 (the 1961 Act) into a broader form of mid trial quasi-appeal from the District Court, and I consider that such a course is not consistent with the terms of section 52(1) of the 1961 Act.

THE CONSULTATIVE CASE STATED

5 . In the consultative case, which is dated 11 January 2024, District Court Judge Cody stated a case pursuant to s. 52 (1) of the 1961 Act for the opinion of the High Court. The following questions were presented:-

• (i) On granting one legal aid (District Court) certificate pursuant to s. 2 of the Criminal Justice (Legal Aid) Act, 1962 can a District Judge assign three different solicitors to represent an accused?

• (ii) If the answer to question (i) be in the affirmative, can a District Court Judge take into account in determining if the accused should be represented by one solicitor or a number of solicitors that it may be not in the “interests of justice” and in that regard take into account the best interests of the accused, the effective administration of justice, and the broader public interest?

• (iii) If the answer to question (i) be in the affirmative should the assignment of a number of solicitors be limited to cases where it is established that because of the particular gravity and complexity of the case or other exceptional circumstances, the court is satisfied that such additional representation is essential in the interest of justice?

6 . It is important to note that the learned Judge decided to state a case to this court of his own motion. Although, as is the normal and proper course, the parties to the prosecution were provided with the opportunity to make suggestions about the consultative case stated, it was the learned Judge who chose the questions and finalised the findings of fact. Hence, this case stated was firmly rooted in the desire of the District Court to obtain answers to the specific questions that presented him with concerns.

7 . By the time the matter came on for hearing before this court, it was apparent that the parties to these proceedings essentially agreed as to the answers that ought to be given to the questions posed by the District Court, subject to this court agreeing with that position. The defendant took the view that the questions presented by the District Judge were not particularly controversial and did not reflect what the defendant saw as the substantive issue. In that regard, instead of the question as to whether it was possible to have three separate solicitors assigned on a single legal aid certificate, the defendant took the view that the real issue that required resolution was whether three separate legal aid certificates should have been granted. The proposed reformulated question was framed in the following way in the defendant's submissions:-

“Whether the District Judge had jurisdiction to assign three separate solicitors to the Defendant, to cover three separate and unrelated offences, as opposed to assigning one solicitor to deal with all three.”

8 . Accordingly, the preliminary question that the court must address is whether that reformulated question should be answered. The prosecutor took the view that while it was accepted that the High Court can reformulate a question of law opposed by a District Court on a consultative case stated pursuant to s. 52 of the 1961 Act, that reformulation ought only be directed towards permitting the High Court to deal with the real issue arising on the facts as found by the District Court. The prosecutor took the view that the proposed reformulated question in essence required the court to either ignore or override the findings of fact which were made by the District Court as part of the consultative case stated process and instead to provide what amounted to an advisory opinion on an abstract or hypothetical question that had not arisen or at least had not arisen at this point in the underlying proceedings.

9 . In addressing the issues, the parties referred to and the court had available to it transcripts of the hearings that occurred before the District Court prior to the formulation of the case stated. While the primary focus of the court must be on the facts as found in the consultative case stated, the availability of the transcripts was of some assistance in providing a level of context for the issues as presented.

10 . As noted in the comprehensive recitation of the facts found by the District Judge in the consultative case stated, the defendant was a minor who appeared before a sitting of the District Court at Portlaoise on the 23 March 2023 charged with ten separate offences. Five of the offences were alleged to have occurred on the 3 March 2023, one of the offences was on the 12 March 2023, one on the 20 March 2023, two on the 21 March 2023 and one of the offences was alleged to have occurred on a date unknown between the 19 March and the 21 March 2023. The alleged offences concerned damage to property, trespass and certain theft offences.

11 . At an initial hearing on the 23 March 2023, the defendant was admitted to bail on certain conditions. There was then an application for a certificate for legal aid. Although the defendant's legal representatives seem to have taken issue with how that application ought to be characterised, it is of critical importance to note, for the purposes of the consultative case stated, the District Judge made very clear findings of fact about what had occurred. This is explained by the District Judge in the part of the consultative case stated as follows, and I have underlined particular matters that should be emphasised:-

“5. Following my decision on the question of bail, the solicitor for the defendant, Mr. Michael Byrne, made an application for a certificate for legal aid as provided for by section 2 of the Criminal Justice (Legal Aid) Act, 1962, as amended. Mr. Byrne began to ask for a Mr. McCarthy, in whose offices Mr. Byrne practices, to be the assigned solicitor in respect of the offence as set out on charge sheet 24500372. Mr. Byrne asked that he (Mr. Byrne) be the assigned solicitor in respect of the charge sheet numbered 24500404 and that a Ms. Willox be assigned in respect of the charge sheet numbered 24500307.

6. I enquired of Mr. Byrne as to my jurisdiction to assign three solicitors to a Defendant on the...