Tighe (A Minor) v Haughton and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hanna |
| Judgment Date | 18 February 2011 |
| Neutral Citation | [2011] IEHC 64 |
| Court | High Court |
| Date | 18 February 2011 |
[2011] IEHC 64
THE HIGH COURT
BETWEEN
AND
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6
CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2(1)
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S5(6)
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2
CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
CONSTITUTION ART 38
HEALY, STATE v DONOGHUE 1976 IR 325
O'NEILL v BUTLER 1979 ILRM 243
CARMODY v MIN FOR JUSTICE 2010 1 IR 635 2010 ILRM 157 2009 IESC 71
KEARNS v MAHER 2004 3 IR 512
COSTIGAN v BRADY UNREP QUIRKE 6.2.2004 2004/10/2295 2004 IEHC 16
JOYCE v BRADY & DPP UNREP FEENEY 24.4.2007 2007/30/6111 2007 IEHC 149
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ARTICLE 6(3)
POITRIMIL v FRANCE 1993 EHRR 130
CRIMINAL LAW
Legal aid
Refusal - Minor - Public order offence - Remand for preparation of probation report - Alleged failure to apply legislative provisions - Alleged failure to have regard to means or age - Alleged failure to interpret Act in manner consistent with Convention - Legal representation throughout trial - Whether breach of right to fair procedures - The State (Healy) v Donoghue [1976] IR 325; O'Neill v Butler [1979] ILRM 243; Carmody v Minister for Justice [2009] IESC 71, (Unrep, SC, 23/10/2009); Director of Public Prosecutions (Kearns) v Maher [2004] 3 IR 512; Costigan v Brady [2004] IEHC 16 (Unrep, Quirke J, 6/2/2004); Joyce v Brady [2007] IEHC 149, (Unrep, Feeney J, 24/4/2007) and Poitrimil v France (1993) EHRR 130 considered - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 - European Convention on Human Rights Act 2003 (No 20), s 2 - Relief refused and matter remitted to District Court for sentencing (2009/818JR - Hanna J - 18/2/2011) [2011] IEHC 64
Tighe v District Judge Haughton
Facts: The applicant who was denied legal aid on account of the fact that he was not at risk of incarceration, complained that the respondent had failed to correctly apply the provisions of the Criminal Justice (Legal Aid) Act 1962 as amended, and that his rights to natural and constitutional justice had been infringed by the failure to accord him the entitlement to present his defence appropriately. The respondent contended that the dispute related to the payment of fees rather than a refusal of representation.
Held by Hanna J. that the first respondent acted within jurisdiction and adhered to the principles of natural and constitutional justice. The applicant had not been denied his right to be tried in due course of law in accordance with Article 38 of the Constitution and the relief sought was denied. The matter would be remitted to the District Court for sentencing.
Reporter: E.F
JUDGMENT of Mr. Justice Hanna delivered the 18th day of February, 2011
The applicant in this case was born on the 20 th July, 1992, and was a minor at the relevant time. On the 3 rd July, 2009, the applicant appeared before Dublin Children's Court, charged with one offence of threatening, abusive or insulting behaviour in a public place contrary to s. 6 of the Criminal Justice (Public Order) Act 1994, as amended. At all material times, the applicant was represented by solicitor and counsel.
The arresting Garda gave evidence of arrest, charge and caution and counsel for the applicant entered a plea of guilty. Counsel for the applicant gave a brief outline of the applicant's circumstances and the first respondent asked the applicant if he was prepared to apologise to the Garda. At that point the applicant stated "I'm guilty but I'm not saying anything to him". The first respondent stated that he would have considered applying the Probation Act 1907, but for the applicant's attitude. Counsel for the applicant applied for legal aid, stating that the applicant was not in a position to defend himself and the first respondent refused, stating that the applicant was "not at risk". I am satisfied - in reality there was no dispute on this - that in using these words the first respondent was indicating that the applicant did not face the risk of incarceration. The matter was remanded to the 25 th September, 2009, for the preparation of a probation report.
The applicant sought and obtained leave to bring these judicial review proceedings by order of Peart J. made on the 27 th July, 2009.
The applicant is unemployed and resides with his sister, who is single, unemployed and the parent of a child. She has been appointed as the applicant's legal guardian as the applicant's mother had difficulty controlling him. The applicant left school after the Junior Certificate and is not enrolled in any educational courses.
A number of details of the applicant's circumstances have come to light since the hearing in the Children's Court but were not put before the first respondent at the hearing. First, despite being taught in a small class, the applicant required the aid of a special needs assistant. Secondly, the applicant has previously attempted suicide and underwent a period of treatment where he was described an anti-depressant. Thirdly, he has recently been coughing up blood as a result of haemoptysis. Fourthly, the applicant is described by his solicitor and counsel as immature.
Mr. Rogers S.C. for the applicant, complains that the first respondent failed correctly to apply the provisions of s. 2 (1) of the Criminal Justice (Legal Aid) Act 1962, as substituted by s. 5(6) of the Criminal Justice ( Miscellaneous Provisions) Act 1997, (hereafter "the Act of 1962, as amended") in that he had regard only to the fact that the applicant would be at risk of a custodial sentence and he failed to have any adequate regard to the means of the applicant and, in particular, to his age. The applicant claims that, in doing so, the first respondent acted in excess of jurisdiction and, accordingly, that the purported order is ultra vires. The applicant claims that, due to the exceptional circumstances of the applicant, including his age, immaturity and education, he is unable to adequately appreciate the gravity of the charge, to understand the directions of the Court as to his rights, or to follow and test the evidence tendered against him or to speak on his own behalf at sentencing. In addition, the conduct of the applicant when invited to apologise should have alerted the judge to the foregoing.
The applicant submits that the first respondent failed to apply correctly the provisions of s. 2 of the European Convention on Human Rights Act, 2003, in that he failed to interpret and apply the law, insofar as is possible, in a manner compatible with the State's obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). In particular, the applicant claims that the first respondent failed to interpret s. 2 of the Act of 1962, as amended, in a manner consistent with Article 6 of the ECHR and give sufficient regard to the applicant's right; (i) to have adequate time and facilities for the presentation of his defence and to defend himself in person or through legal assistance of his own choosing; and (ii) as the applicant has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so requires.
The applicant further claims that the first respondent failed to adhere to the principles of natural and constitutional justice. In particular, the applicant submits that he had no jurisdiction to deny the applicant legal aid as this amounted to a denial of the applicant's right to be tried in due course of law in accordance with Article 38.1.1° of the Constitution, this right including the application of basic principles of justice which are inherent in the proper course of the exercise of the judicial function and accordingly, the purported order is ultra vires.
For the second respondent, Mr. Kieran Kelly submits that the provisions of the Act of 1962, as amended and the European Convention on Human Rights Act 2003, have been properly applied and that no infringement of his right to be tried in due course of law in accordance with Article 38 of the Constitution has occurred.
The second respondent claims that the first respondent considered and refused the application for legal aid in accordance with the Act of 1962, as amended. It is also claimed that the first respondent was of the view first that s. 2 of the Act of 1962, as amended, does not provide an unrestricted entitlement to free legal aid and secondly that the case was not of sufficient gravity and that there existed no other exceptional circumstances to warrant the granting of free legal aid under the Act.
The second respondent contends that the applicant was represented throughout the trial and that the issue in the case at hand relates to the solicitor's fees not being paid under the statutory scheme rather than the applicant being denied representation. The second respondent further submits that there is nothing in the applicant's affidavit or pleadings to suggest that he will be left without representation at the sentencing hearing and that it will be open to a District Judge at any future sentence hearing to revisit the question of legal aid should he deem it necessary.
Section 2(1) of the Act of 1962, as amended, provides that:-
"If it appears to the District Court before whish a person is charged with an offence or an alternative court within the meaning of s. 5 of the criminal Justice ( Miscellaneous...
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Tony King v District Judge Michael Coghlan and Another
...Convention provisions." 53 This aspect was neither pressed nor developed. Decision 54 28. In Tighe (A Minor) v. Judge Haughton & Anor. [2011] IEHC 64, I decided in relation to s. 2 of the 1962 Act that: "It is trite law that judicial review is concerned not with the decision, but with the d......