People (Attorney General) v Heffernan

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judgment Date: 27 April 1951
• Date: 27 April 1951

The People (Attorney General) v. Heffernan.

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

PATRICK HEFFERNAN

Costs - Professional fees - Criminal appeal - Legal aid assigned to appellant by Court of Criminal Appeal - Rates and scales of payment of costs and expenses of legal aid - Criminal Appeal (Fees and Expenses of Legal Aid) Regulations, 1950 (S.I., 1950, No. 305) - Validity - Criminal Appeal Rules, 1924, r. 43.

The Criminal Appeal (Fees and Expenses of Legal Aid) Regulations, 1950, is ultra vires and the fixing of the costs and expenses of legal aid assigned, pursuant to the Criminal Appeal Rules, 1924, r. 43, to an accused person, on an application for leave to appeal to the Court of Criminal Appeal is a matter for the Superior Courts Rules Committee and in the absence of any ruling by the said Committee, fixing such costs and expenses, the fixing of the amount of such costs and expenses is a matter for the Court.

So held by Maguire C.J.

Interlocutory Application.

The applicant, Patrick Heffernan, was convicted in the Central Criminal Court of the offence of murder and was sentenced to death. An interlocutory application to the Court of Criminal Appeal was made on his behalf 1, for leave to appeal against the said conviction and sentence, and 2, for the assignment of legal aid and for a free transcript of the evidence given at the trial. Maguire C.J. granted the application, and assigned a senior counsel, a junior counsel and a solicitor to act for the applicant on the appeal. Counsel for the applicant thereupon made application to the Court to fix the costs and expenses of the said legal aid pursuant to the Criminal Appeal Rules, 1924, r. 43, and Maguire C.J. adjourned for argument the question of the power of the Court to fix the amount of such costs and expenses.

Maguire C.J. :—

The first question I have to deal with is whether I should accept as effective Statutory Instrument, No. 305 of 1950, which is a regulation made by the Minister for Finance, pursuant to the Criminal Appeal Rules, 1924. Sir John Esmonde submits that, this being a regulation purporting to fix costs, it is, in effect, an amendment of the Rules of Court which can only be validly made by the Rule-making Committee, the power of the Minister for Finance being limited to concurring or dissenting from such Rules.

The President of the High Court in his judgment in the case of The People (Attorney General) v. Daly (printed post,at p. 113) took the view that any regulation made by the Minister and not by the Rule-making authority is ultra vires.He says:—"Rule 43, however, is the important rule. First, I think it contemplates that the Court of Criminal Appeal shall itself allow the proper amount of the total bill for legal aid after an assignment, but that might be very inconvenient for a Court that is not in regular session, since a preliminary taxation would usually be requisite. Secondly, the rule would delegate to the Minister for Finance the making of regulations as to rates and scales of payment after assignment; no doubt, that method made the Minister's 'concurrence' in the resultant fees quite certain, but no such delegation was contemplated by the Act of 1924; the Act told the Minister for Justice to make the rules with the concurrence of a professional committee and he was then, in effect, to seek the concurrence, in a scheme already prepared, of the Minister for Finance, where public moneys were concerned. To-day the Superior Courts Rules Committee established by the Act of 1936 is obviously qualified to make rules as to costs, including costs after assignment, whereas the Department of Finance clearly is not; and the former is competent under the statute, and the latter is not. The statutory role of the Finance Minister is confined to concurrence or dissent and adjustment."

The opinion there expressed was obiter dicta, as the question did not arise by reason of the fact that no regulations under Rule 43 of the Criminal Appeal Rules had been made at the time. I, however, agree with the view of the President, and accept the submission of Sir John Esmonde that the fixing of costs is a matter for the Rule-making Committee.

I had thought that it might be contended that the provision of a sum to meet the costs of counsel and solicitor assigned on appeal in a murder trial should not be regarded as fixing costs in the ordinary way, but that contention was not advanced by the State.

I am of opinion that the Criminal Appeal (Fees and Expenses of Legal Aid) Regulations, 1950 (Statutory Instrument, No. 305 of 1950), is ultra vires and that the fixing of costs is a matter for the Rule-making Committee.

The Attorney General has adopted a reasonable attitude as to the sums payable which should be fixed. Had it not been agreed that the fees of counsel for the Attorney General might afford a guide as to the figures to be fixed, I might have fixed smaller figures. My reason is that there has always been an element of charity in the acceptance of briefs for poor persons and prima facie there is no reason why the figures should be the same as those paid to counsel for the Attorney General. However, I shall on this occasion fix the fees as follows:—Senior Counsel, 25 guineas on the brief, and 18 guineas, a day, refresher; Junior Counsel, 18 guineas on the brief, and 15 guineas, a day, refresher; Solicitor, 18 guineas for the first day, with 9 guineas for each succeeding day.

The following is the judgment of Gavan Duffy P. in The People (Attorney General) v. Daly, delivered on the 21st April, 1950, referred to above.

Gavan Duffy P. :—

This matter arises on an appeal to the High Court from the Taxing Master, upon objection taken in the name of the Attorney General on behalf of the Minister for Finance to portions of the taxed costs of appeal of Mrs. M. A. B. Daly, after a conviction of murder. The bill of costs includes 1, the costs of an appeal to the Court of Criminal Appeal after a first trial and conviction, 2, the costs of a subsequent and successful appeal to the Supreme Court on a point of law of exceptional public importance, and 3, the costs of a new trial directed by the Supreme Court and resulting in the...