Neeson v Judge Brady & DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice John Hedigan
• Judgment Date: 11 June 2008
• Neutral Citation: [2008] IEHC 182
• Court: High Court
• Date: 11 June 2008

[2008] IEHC 182

THE HIGH COURT

No. 1445 J.R./2007

Neeson v Judge Brady & DPP

JUDICIAL REVIEW

BETWEEN

GERARD NEESON

APPLICANT

AND

JUDGE PATRICK BRADY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

O'NEILL v MCCARTAN & DPP UNREP CHARLETON 15.3.2007 2007 IEHC 83

DALY, STATE v RUANE 1988 ILRM 117

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2

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

DPP (KEARNS) v MAHER 2004 3 IR 512 2004/16/3624

CAHILL v REILLY 1994 3 IR 547

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

COSTIGAN v BRADY & DPP UNREP QUIRKE 6.2.2004 2004/10/2295 2004 IEHC 16

WHELAN v FITZPATRICK & DPP UNREP BUDD 13.6.2007 2007 IEHC 213

CRIMINAL LAW

Legal aid

Refusal of certificate for legal aid - Gravity of charge - Opinion expressed as to risk of imprisonment by prosecution - Whether trial judge failed to consider all relevant matters - Judge decided applicant not at risk - Whether question of gravity of charge entirely a matter for trial judge - Whether trial judge's decision on gravity of offence capable of review by High Court - Function of District Court Judge - O'Neill v McCartan [2007] IEHC 83, (Unrep, Charleton J, 15/3/2007) and State (Daly) v Ruane [1988] ILRM 117 applied; DPP (Kearns) v Maher [2004] IEHC 251, [2004] 3 IR 512, Cahill v Reilly [1994] 3 IR 547 and Costigan v Brady [2004] IEHC 16, (Unrep, Quirke J, 6/2/2004) considered - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 - Relief refused (2007/1445JR - Hedigan J - 11/6/2008) [2008] IEHC 182

Neeson v Brady

Facts: The applicant who had been charged with handling stolen good sought to review a decision of the respondent who had refused legal aid to an individual who the presenting Garda had suggested was “at risk”. The issue arose as to the powers of the District Judge to refuse legal aid.

Held by Hedigan J. that the question of the gravity of the charge was for the District Judge. It was hard to imagine an individual more appropriately placed. If real injustice emerged habeas corpus would follow. The reliefs sought would be refused.

Reporter: E.F.

1 Judgment of Mr. Justice John Hedigan delivered on the 11th day of June, 2008.

2 The application is for (a) an order of certiorari to quash the order refusing to grant a certificate of legal aid under the Criminal Justice (Legal Aid) Act, 1962, and for certain connected declarations and (b) an order of prohibition or one staying the continuance of the proceedings against the applicant. The application is grounded inter alia on an affidavit of the applicant and that of Garda Sergeant Paul Madden.

The grounds

3 On the 24 ^th October, 2007, the applicant appeared before the first respondent in Swords District Court on foot of a charge of handling stolen goods, i.e. two mobile phones to the value of €152.00. He was represented by counsel, instructed by solicitors. The Court was informed that the applicant was opting for summary disposal of the charge. The proceedings were adjourned to allow the applicant to take legal advice and the Judge ordered a précis of evidence to be served on him for that purpose. Counsel for the applicant applied for legal aid and submitted a statement of means form. The applicant's income was agreed as being €180.00 per week. The Judge was informed that the allegedly stolen phones had been recovered. The presenting Garda advised the Judge that the applicant was "at risk". This is a well known euphemism to indicate that the presenting Garda was of the view that there was a risk of the applicant receiving a prison sentence if he pleaded guilty, or upon conviction. He also appraised the Judge of the facts which he gleaned from the précis. There was no suspicion that the applicant had stolen the phones. The Judge accepted the case was a minor matter and agreed to accept jurisdiction. The Judge indicated that he did not accept the applicant was "at risk". It may be taken from this that having heard all the details contained in the précis which had been imparted to him by the presenting Garda, knowing the value of the goods allegedly handled and that the goods had been recovered, the Judge did not think, in the event of a plea or a conviction following a trial, that the offence warranted a jail sentence. The Judge then further enquired of counsel if there were any exceptional circumstances. Counsel informed the Court that the applicant had very little financial means, was in receipt of disability benefit and could not defend himself. The Judge then refused a legal aid certificate. It appears that his reason for doing so was that in considering the gravity of the charge, he was of the view that the applicant was not at risk of imprisonment and therefore the charge was not so grave as to require him to grant legal aid. The applicant grounds his application upon the argument that the Judge did not conduct a proper enquiry, failed to consider all relevant matters attendant to the enquiry and/or acted in an unreasonable or irrational manner in making the decision that he did. The applicant's argument, it seems to me, boils down to the complaint that the presenting Garda said that he considered the applicant was "at risk" and the Judge, who had been appraised of the facts giving rise to the charge, the value of the goods handled and the fact they had been recovered, did not conduct an enquiry into why the Garda thought he...