Gareth Whelan v District Court Judge Thomas Fitzpatrick and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 13 June 2007
• Neutral Citation: [2007] IEHC 213
• Court: High Court
• Docket Number: [2006
• Date: 13 June 2007

[2007] IEHC 213

The High Court

[No. 303 JR/2006]

Whelan v District Judge Fitzpatrick & DPP

Judicial Review

between

Gareth Whelan

Applicant

and

District Court Judge Thomas Fitzpatrick and the Director of Public Prosecutions

Respondents

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2

ROAD TRAFFIC ACT 1994 S13(3)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2(1)(a)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S5(6)

CLARKE v KIRBY 1998 2 ILRM 30

HEALY, STATE v DONOGHUE 1976 IR 325

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2(2)

SHARPE LTD v DUBLIN CITY & COUNTY MANAGER 1989 IR 701

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4

CAHILL v REILLY 1994 3 IR 547

DUNNE & NATIONAL ASSOCIATION OF REGIONAL GAME COUNCILS & ANOR v DONOHOE (GARDA SUPERINTENDENT) & ORS 2002 2 IR 533

R v PORT OF LONDON AUTHORITY EX PARTE KYNOCH 1919 1 KB 176

R v WINDSOR LICENSING JUSTICES EX PARTE HODES 1983 2 AER 551

MISHRA v MIN FOR JUSTICE 1996 1 IR 189

IRISH NATIONALITY & CITIZENSHIP ACT 1956

DPP v C (W) 1994 1 ILRM 321 1997/2/742

CUSSEN, STATE v BRENNAN 1981 IR 181

COSTIGAN v BRADY & DPP UNREP QUIRKE 6.2.2004 2004/10/2295

JOYCE v JUDGE BRADY & DPP UNREP FEENEY 24.4.2007 2007/30/6111 2007 IEHC 149

MOORE v DISTRICT JUDGE BRADY & ANOR UNREP FEENEY 16.11.2006 2006 IEHC 434

ROAD TRAFFIC ACT 1994 S13(2)

CRIMINAL LAW

Legal aid

Risk of custodial sentence - Refusal - Matters for consideration - Whether irrelevant factor considered - Whether statutory discretion fettered - Sharpe (P & F) Ltd v Dublin City and County Manager [1989] IR 701, State (Healy) v Donoghue [1976] IR 325, Cahill v Reilly [1994] 3 IR 547, Dunne v Donohoe [2002] 2 IR 533, Rex v Port of London, Ex parte Kynoch [1919] 1 KB 176, Reg v Windsor Licensing Justices, Ex parte Hodes [1983] 1 WLR 685, Mishra v Minister for Justice [1996] 1 IR 189 and DPP v WC [1994] 1 ILRM 321 considered; Costigan v Brady [2004] IEHC 16 (Unrep, Quirke J, 6/2/2004) and Joyce v Judge Brady [2007] IEHC 149 (Unrep, Feeney J, 24/4/2007) distinguished - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 - Relief granted (2006/303JR - Budd J - 13/6/2007) [2007] IEHC 213

Whelan v Judge Fitzpatrick

1 Judgment of Mr. Justice Declan Budd delivered on the 13th day of June 2007

Background

2 The applicant seeks an order of certiorari in relation to the decision of the first named respondent District Court Judge made on 15th February, 2006 refusing an application made by counsel on behalf of the applicant for legal aid pursuant to s. 2 of the Criminal Justice (Legal Aid) Act 1962. The applicant was summoned to appear in the District Court in relation to an offence, contrary to s. 13(3) of the Road Traffic Act 1994, in relation to an alleged refusal by him to permit a designated doctor to take from the applicant a specimen of his blood or at his option to provide to the designated doctor a specimen of urine on 3rd December, 2004 at Sundrive Road, Garda Station. The grounds upon which the applicant seeks relief can be summarised as follows:-

3 a "(a) The first respondent failed to conduct an enquiry into the matters referred to in s. 2(1)(a) of the Act of 1962;

4 (b) The first respondent gave consideration to an irrelevant factor in the exercise of his statutory duty;

5 (c) The first respondent adopted a strict and irrelevant policy which fettered the proper exercise of his statutory discretion."

Statutory provision

6 Section 2 of the Criminal Justice (Legal Aid) Act 1962, as substituted by s. 5(6) of the Criminal Justice (Miscellaneous Provisions) Act 1997, provides as follows:-

"(1) If it appears to the District Court before which a person is charged with an offence ..."

(a) that the means of the person before it are insufficient to enable him to obtain legal aid, and

(b) that by reason of the gravity of the offence with which he is charged 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,

7 the said District Court ... shall, on application being made to it in that behalf, grant a certificate, in respect of him, for free legal aid ... and thereupon he shall be entitled to such aid and to have a solicitor ..."

8 For the sake of clarity and because the term "legal aid" has acquired a number of meanings, I make the point that "legal aid" in this section is best understood as meaning "legal advice and representation".

Factual basis

9 The applicant was summoned to appear before District Court 52 in the Richmond Hospital Court Complex on 15th February, 2006 to answer a complaint that he failed to comply with a requirement to provide a sample of his blood, or urine, an offence contrary to s. 13(3) of the Road Traffic Act 1994, as amended. The maximum sentence which may be imposed on conviction in respect of that offence is six months imprisonment and/or a fine of €2,500.

10 Prior to his appearance in court, the applicant contacted Philip Hannon, of Philip Hannon Solicitors, The Capel Building, Mary's Abbey, Dublin 7. Mr. Hannon agreed to represent the applicant in his defence of the above prosecution, contingent on the applicant being granted legal aid or on payment of appropriate legal fees. Having been made aware of the applicant's circumstances, Mr. Hannon agreed to instruct counsel to appear for the applicant on the above date to seek legal aid and he then did this. Accordingly on 15th February, 2006 counsel appeared for the applicant and indicated that the applicant was pleading not guilty to the complaint and applied to the first named respondent District Court Judge for legal aid, pursuant to s. 2 of the Criminal Justice (Legal Aid) Act 1962 on behalf of the applicant. The statement of the applicant's means (exhibited as Exhibit B in the affidavit of Philip Hannon which was sworn on 13th March, 2006) was handed into court in support of this application. This statement of means of Gareth Whelan appears to have been filled in or at least signed by him on 13th February, 2006 and makes clear that he was living in his mother's house in Kimmage, was unemployed and in receipt of a €165 per week Social Welfare payment, of which he contributed €50 per week to his mother for his lodgings and that he also supported one child aged fifteen months in the sum of €80 per week. His answers to questions 9 and 10 make clear that he has no other money available which could be used for obtaining legal aid and he has no other assets which could be used for the same purpose and that he has neither parents or guardians able to provide or to assist him to provide himself with legal aid. These matters are deposed to, in the affidavit of Philip Hannon sworn on 13th March, 2006 and the court was also informed by counsel that the applicant was in receipt of unemployment assistance and counsel indicated to the first named respondent that "the applicant may be in jeopardy of a custodial sentence" if convicted of the complaint of refusal to give a specimen. This phraseology has a significance in the parlance of District Court practitioners comparable to the use of the phrase "my client intends to take a certain course" as used in the Circuit Court to indicate that Counsel's accused client is likely to plead guilty when arraigned. Such euphemistic phrases are well understood by judges and practitioners, although the actual meaning carried by and implications in the use of the phrase might not be obvious to an uninitiated bystander. I will return to this significant point in due course. The reason for using such a formula is to convey what is believed by Counsel to be likely to happen when his client is arraigned but the choice of plea is the prerogative of the accused and there could be a change of mind before the formal answer "guilty" is given by the client. Hence the use of the phrase by Counsel with its connotations well understood by the judge, registrar, lawyers and cognoscenti in Court, as it precludes the peril of the discharge of a jury panel if an unexpected change of mind should occur.

11 It is clear that the first named respondent was informed not only of the impecunious situation of the applicant but also specifically that the applicant might be at risk of a custodial sentence in the event that he should be convicted of the complaint before the court. I was informed by Conor Devally S.C.. counsel for the applicant, that one experienced District Court Judge frequently asked the member of the Gardaí responsible for the prosecution case the question "is this person at risk?" which was in fact a euphemism for the question:-

"Is this accused in peril of receiving a jail term?"

12 If the answer to this euphemism was in the affirmative, then this carried the implication that the accused was on hazard of being incarcerated. Accordingly it followed that if the person was impecunious and, if there were no countervailing exceptional circumstances, then the accused should be informed of the availability of legal assistance. On this aspect I shall return to what Shanley J. said, which he would have carefully considered and written out in his own hand, in the case of Clarke v. Kirby and the Director of Public Prosecutions [1998] 2 I.L.R.M. 30 in respect of the matters which should be taken into account by the District Court Judge, bearing in mind the intention of the Legislature and the absence of an appeal of the decision.

13 The first named respondent's reaction to counsel's application was to say that if the applicant could afford a car, he could afford a solicitor. Counsel for the applicant thereupon advised the first named respondent that the applicant's instructions were that he was not driving his own car, that there was no evidence that he was driving his own car and that his means were such that he could not afford legal assistance...