McEntaggart v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 20 April 2018 |
| Neutral Citation | [2018] IEHC 230 |
| Docket Number | [2016 No. 793 J.R.],[2016 No. 793 JR] |
| Court | High Court |
| Date | 20 April 2018 |
[2018] IEHC 230
THE HIGH COURT
JUDICIAL REVIEW
Binchy J.
[2016 No. 793 J.R.]
Judicial review – Legal aid – Jurisdiction – Applicant seeking an order of certiorari quashing the decision of the District Judge to refuse legal aid to the applicant – Whether District Judge had the jurisdiction to consider the question of legal aid in relation to the applicant's case
Facts: The applicant, Mr McEntaggart, on 17th October, 2016, was granted leave to apply for judicial review for the following reliefs: (1) An order of certiorari quashing the decision of the District Judge presiding at Virginia District Court on 26th July, 2016 to refuse legal aid to the applicant in relation to Charge Sheet No. 16890512; (2) A declaration that the District Judge had the jurisdiction to consider the question of legal aid in relation to the applicant's case and/or he erred in law not so doing (the applicant was granted leave on the grounds that (i) his circumstances were such as to entitle him to legal aid and (ii) he was obliged to attend Virginia District Court on 26th July, 2016 in connection with an offence which, on summary conviction, carries a penalty of up to twelve months imprisonment and a fine of up to €2,500, and upon conviction on indictment, carries a sentence of up to fourteen years); (3) The applicant was not given any advance notice that the proceedings against him would be struck out, and having engaged a solicitor in the days leading up to the court, the applicant attended court on 26th July, 2016 to meet the case against him; (4) The District Judge fettered his discretion and should have at least considered the eligibility of the applicant for legal aid, and/or acted ultra vires by holding that he (the District Judge) had no jurisdiction in the matter. In her statement of opposition delivered in May, 2017, the respondent, the DPP, claimed that the District Judge was correct in determining that the applicant was not properly before the Court in circumstances where no evidence was placed before the Court as to the arrest, charge and caution of the applicant, and the court simply made no order (at the request of the prosecutor). The respondent relied on s.2 of the Criminal Justice (Legal Aid) Act 1962 and pleaded that there was no evidence before the District Court Judge that the accused was before the Court "charged with an offence", and that the judge having made no order was correct in concluding that he had no jurisdiction to grant any other application including legal aid as the accused was, as the District Judge stated, "not properly before the court".
Held by the Court that the District Judge was correct in deciding that he had no jurisdiction. The Court held that it was clear from the authorities relied upon by the respondent that neither a charge sheet nor a list of charge sheets is a court document; a list is prepared only for the expedience of the court and the Gardaí. The Court held that when a Superintendent indicates that a particular matter is not proceeding, for whatever reason, the Court has no jurisdiction to make any order (unless of course the charge has previously been proffered by the prosecutor, and jurisdiction assumed by the Court).
The Court held that the application should be dismissed.
Application dismissed.
On 9th July, 2016, the applicant was apprehended, along with others, while a passenger in a car that was stopped by gardaí at Main Street, Kingscourt, Co. Cavan. He was detained and conveyed to Bailieborough Garda Station. There he was charged by Sergeant John Patrick Callahan, pursuant to Charge Sheet No. 16890512 with an offence under s.15 (1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, and specifically that he had in his possession certain items with the intention that they would be used in the course of or in connection with a theft or burglary or an offence under s.17 of the Criminal Justice (Public Order) Act 1994.
The applicant was released on his own recognisance whereby he agreed to 'appear before the District Court to be held at Virginia, the Courthouse, Virginia, Co. Cavan on the 26th day of July, 2016 at 10:30am/pm to answer the charge(s) as set out in the charge sheet attached and at every place and time to which during the course of the proceedings the hearing may be adjourned until my presence is no longer required to answer the said charge(s).'
The applicant then retained the service of a solicitor namely Mr Dermot Monahan, of Monahan & Co. solicitors, Drogheda. Mr Monahan swore an affidavit dated 14th June, 2017 in support of the applicant in these proceedings. In that affidavit he says that the applicant 'consulted with me after he had been charged on 9th July and the full detailed attendance was taken in my office on 19th July. He was advised of his obligation to attend Virginia District Court in accordance with the terms of his bail, and, as I did not have other business in that court on that date it was necessary for me to make special arrangements to have him represented by a solicitor in Virginia District Court on 26th July. A legal aid application form was prepared and available and an effort was made to hand it into court in support of the application.'
The applicant duly attended Virginia District Court on 26th July, 2016, as did the solicitor representing him, a Ms Taaffe. When the proceedings against the applicant were called, the Garda Superintendent attending the court on the day (a Superintendent McGinn) asked the District Judge to strike the proceedings out and to make no order. He did so because Sergeant Callahan was not available to give evidence of arrest, charge and caution of the applicant. While he had prepared a certificate pursuant to s.6 of the Criminal Justice (Miscellaneous Provisions) Act 1997 dealing with the issue of arrest, charge and caution, the certificate was not available to Court, owing to an administrative error. In an affidavit sworn on 11th May, 2017 in opposition to this application, Superintendent McGinn avers to all of the above and explains that it was for this reason that he applied for 'no order' in the proceedings against the applicant.
The District Judge, as requested, made no order in the case, whereupon the solicitor for the applicant applied for legal aid. She informed the Court that the accused/applicant was in court. The District Judge responded that he had no jurisdiction to make any order as regards legal aid because the accused/applicant was not properly before the Court, to which the solicitor responded 'very good. Thank you.'
These proceedings arise out of the refusal by the District Judge to grant the applicant legal aid in the District Court proceedings. There is no dispute between the parties surrounding the circumstances giving rise to that refusal. However, the applicant claims that the District Judge should at least have considered his solicitor's application for legal aid. In support of this application, the applicant swore an affidavit dated 13th October, 2016. He avers that he is 42 years of age, married, and the father of seven children aged from eight years down to a baby. He is unemployed, on social welfare and struggling with an alcohol addiction. He had to leave school at the age of thirteen, and is not well educated.
He describes the circumstances leading to his arrest, and his subsequent release on station bail and attendance with his solicitor. He avers that the offence with which he was charged was serious enough to warrant his consultation with a solicitor, to take advice and to represent him before the court in Virginia. He avers that he was not informed beforehand of the intention of...
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