State (Healy) v Donoghue

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1978
• Date: 01 January 1978
• Docket Number: [1975 No. 79 SS.]

High Court

Supreme Court

[1975 No. 79 SS.]

[1975 No. 110 SS.]

The State (Healy) v. Donoghue

The State (at the Prosecution of John Healy)

and

Denis Donoghue, Thomas P. O'Reilly, The Director of Public Prosecutions and The Attorney General

The State (Healy) v. Donoghue

The same

and

Denis Donoghue, Eileen Kennedy, The Director of Public Prosecutions and The Attorney General

Constitution - Courts - Administration of justice - Personal rights - Legal advice - Duty of court - Failure to provide legal aid - Conviction quashed on certiorari - Criminal Justice (Legal Aid) Act, 1962 (No. 12), s. 2 - Constitution of Ireland, 1937, Articles 34, 38, 40.

Certiorari.

The facts have been summarised in the head-note and they appear in the judgment of Gannon J., infra. This report is confined to the proceedings having record numbers 1975 No. 79 SS and 1975 No. 110 SS but the judgments, infra, also determine the issues which arose in The State (Foran)v. Donoghue—1975 No. 48 SS.

In the proceedings 1975 No. 79 SS, the first respondent was the Governor of St. Patrick's Institution and the second respondent was the District Justice who was concerned with those proceedings. In the proceedings 1975 No. 110 SS, the first respondent was the said governor and the second respondent was the District Justice who was concerned with those proceedings.

The European Convention on Human Rights, which was mentioned in the course of these proceedings, does not form part of the domestic law of the State: In re Ó Laighléis ó laighléis.1

During the period relevant to the proceedings 1975 No. 79 SS, no solicitors were available for legal aid under the Criminal Justice (Legal Aid) Act, 1962, as the solicitors who had provided the services necessary for the operation of the Act of 1962 had withdrawn from the legal-aid scheme provided by that Act.

Article 38, s. 1, of the Constitution of Ireland, 1937, provides that:—"No person shall be tried on any criminal charge save in due course of law."

Article 40, s. 3. of the Constitution provides:—

"1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

Article 40, s. 4, sub-ss. 1 and 2, of the Constitution provides:—

"1 No citizen shall be deprived of his personal liberty save in accordance with law.

2 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court . . . shall . . . order the release of such person from such detention unless satisfied that he is being detained in accordance with the law."

Section 2 of the Criminal Justice (Legal Aid) Act, 1962, enacts:—

"(1) If it appears to the District Court—

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

• (b) that by reason of the gravity of the charge 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,

the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable."

Sections 3, 4, 5 and 6 of the Act of 1962 prescribe respectively the pre-conditions for the grant of a legal aid (trial on indictment) certificate, a legal aid (appeal) certificate, a legal aid (case stated) certificate, and a legal aid (Supreme Court) certificate. Each of those sections provide, by its second sub-section, that the relevant certificate "shall be granted if (but only if)—(a) application is made therefor . . ."

The Act of 1962 was brought into operation on the 1st April, 1965, by the Minister for Justice in exercise of the powers conferred on him by s. 12 of the Act: see the Criminal Justice (Legal Aid) Act, 1962 (Commencement) Order, 1965—S.I. No. 13.

Article 6, para. 3, of the European Convention for the Protection of Fundamental Human Rights and Freedoms, signed at Rome on the 4th November, 1950, by Mr. Seán MacBride, Minister for External Affairs, for the Government of the Irish Republic, provides:—

"(3) Everyone charged with a criminal offence has the following minimum rights . . .

• (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require . . ."

Article 64 of the Convention provides:—

"(1) Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article.

(2) Any reservation made under this Article shall contain a brief statement of the law concerned."

The Convention came into force on the 3rd September, 1953. Pursuant to Article 66, para. 4, of the Convention, instruments of ratification were received from 10 of the 15 signatory States, i.e., Belgium, Denmark, France, the Federal Republic of Germany, Great Britain and Northern Ireland, Greece, Iceland, the Republic of Ireland, Italy, Luxembourg, the Netherlands, Norway, the Saar, Sweden and Turkey. The Irish instrument of ratification, which was deposited with the Secretary of the General Council of Europe on the 25th February, 1953, contained the following reservation:—". . . the Government of Ireland do hereby confirm and ratify the aforesaid Convention and undertake faithfully to perform and carry out all the stipulations therein contained, subject to the reservation that they do not interpret Article 6(3)(c) of the Convention as requiring the provision of free legal assistance to any wider extent than is now provided in Ireland."

At that date, persons charged with an indictable offence might, as a matter of practice, have counsel assigned to them by the court of trial, the fees of counsel so assigned were paid from public funds. That practice was applied only in the case of an accused who was charged with murder: see The People (Attorney General) v. Daly.2

On the 21st February, 1975, the prosecutor obtained in the High Court (Hamilton J.) a conditional order of certiorari (in the proceedings 1975 No. 79 SS) quashing his convictions of the 29th January, 1975, unless cause were shown to the contrary. On the 4th March, 1975, the prosecutor obtained in the High Court (Finlay P.) a conditional order of certiorari (in the proceedings 1975 No. 110 SS) quashing his conviction of the 15th January, 1975, unless cause were shown to the contrary. The respondents in each proceedings showed cause and the prosecutor applied in each matter for an absolute order of certiorari, notwithstanding the cause shown; these applications were heard by Gannon J. on the 7th and 8th May, 1975.

The prosecutor appealed to the Supreme Court from the judgment and order of the High Court in so far as they failed to make absolute the conditional order of certiorari dated the 4th March, 1975. The respondents in the proceedings 1975 No. 79 SS appealed to the Supreme Court from the judgment and order of the High Court in so far as they failed to discharge the conditional order of certiorari dated the 21st February, 1975. The appeals were heard on the 1st-3rd March, 1976.

Section 2 of the Act of 1962 states that, if it appears to the District Court that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid and that, by reason of the gravity of the charge 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, the court shall "on application being made to it in that behalf" grant him a certificate enabling him to obtain free legal aid and to have a solicitor assigned to him for that purpose.

On the 12th June, 1974, the prosecutor was brought before the Children's Court upon a charge that he had broken and entered a building and had committed a felony therein. The prosecutor was a youth, aged 18 years, whose formal education had ceased when he was 13 years old and who was unable to pay for legal advice. He pleaded guilty to the charge, which was to be tried summarily, and the imposition of the sentence was adjourned on several occasions. On the 15th January, 1975, he was convicted by the District Justice who sentenced him to three months detention. The prosecutor did not apply for legal aid, nor was he informed of his right to apply for such aid; he was not represented at this trial.

On the 13th December, 1974, the prosecutor was brought before the District Court upon a charge of larceny. He pleaded guilty to that charge, which was to be tried summarily, and the imposition of the sentence was adjourned; he was remanded in custody. On the 30th December he applied for, and was granted, a legal-aid certificate in respect of the larceny charge and a solicitor was assigned to him. After several adjournments the prosecutor was convicted by the District Justice on the 29th January, 1975, and was sentenced to six months detention although the prosecutor was...