Tony King v District Judge Michael Coghlan and Another

JurisdictionIreland
JudgeMr. Justice Hanna
Judgment Date14 May 2015
Neutral Citation[2015] IEHC 300
CourtHigh Court
Date14 May 2015

[2015] IEHC 300

THE HIGH COURT

[No. 956 J.R./2013]
Tony King v District Judge Michael Coghlan & Anor.
JUDICIAL REVIEW

BETWEEN

TONY KING
APPLICANT
-AND-
DISTRICT JUDGE MICHAEL COGHLAN
RESPONDENT
-AND-
THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY

Crime & Sentencing – S. 3 of the Misuse of Drugs Act 1977 – Criminal Justice (Legal Aid) Act 1962 – Refusal of legal aid certificate – Fair trial

Facts: The applicant sought an order of certiorari quashing the decision of the first named respondent refusing to issue a legal aid (District Court) certificate to the applicant. The second named respondent contended that the applicant was barred under s. 2 of the Criminal Justice (Legal Aid) Act 1962 from seeking judicial review of the decision made on legal aid. The second named respondent objected that the applicant had sufficient means to pay the attorney fee and the offence charged was not of such a gravity requiring hefty amounts to be spent on legal representations.

Mr. Justice Hanna refused to grant an order for quashing the decision of the first named respondent. The Court held that in order to exercise its discretion under s. 2 of the Criminal Justice (Legal Aid) Act 1962, the Court must satisfy the criteria of means of the applicant, gravity of the offence and existence of exceptional circumstance such as severe infirmity or disability. The Court found that the first named respondent by applying the Probation of Offenders Act, 1907 to the applicant considered the factum of gravity of sentence and observed that the applicant had sources of income through social welfare and had flourishing music career.

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JUDGMENT delivered by Mr. Justice Hanna on the 14th day of May, 2015.

Reliefs Sought
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1. This matter comes before the Court pursuant to the Order of Peart J. made on 16 th December, 2013. By it, leave was granted for judicial review seeking an order of certiorari, quashing a ruling of the respondent Judge of 21st November, 2013, at Court 44, Chancery Street Courthouse (Bridewell), Dublin Metropolitan District Court. This ruling, and the central focus of the applicant's complaint, is the respondent's refusal to issue a Legal Aid (District Court) Certificate to the applicant. The applicant had been charged with, and pleaded guilty to, an offence pursuant to s. 3 of the Misuse of Drugs Act 1977 (as amended) ("the 1977 Act"). He seeks a number of ancillary reliefs, including:

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i) A Declaration that the applicant has satisfied the criteria for the grant of a legal aid certificate, as provided for by the Criminal Justice (Legal Aid) Act 1962 ("the 1962 Act") and under Article 38.1 of the Constitution; ii) A Declaration that the Respondent's Order refusing the applicant legal aid on the aforementioned date in respect of case number 2013/86469 amounted to a breach of the applicant's right to a fair trial in due course of law, pursuant to both Article 38.1 of the Constitution and Article 6 of the European Convention on Human Rights ("the ECHR") (as incoiporated by the provisions of the European Convention on Human Rights Act 2003 ("the 2003 Act"));

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iii) A stay pending the determination of these judicial review proceedings;

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iv) An Order providing for all necessary and/or incidental directions in relation to this application; and

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v) Costs.

Background Facts
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2. The applicant is Mr. Tony King, who is described as a 25 year old trainee barber and musician of 17 Monington Crescent, Mornington, Co. Meath. The respondent is a judge of the District Court assigned to the Dublin Metropolitan District. The notice party is the Director of Public Prosecutions.

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3. The applicant was represented by a solicitor and counsel. A guilty plea was entered in relation to the matter and Garda Egan, the prosecuting Garda, outlined the facts and informed the District Court that the applicant had previous convictions, including a conviction contrary to s. 3 of the 1977 Act.

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4. Counsel for the applicant made a plea in mitigation in which it was stated that the applicant was in receipt of social welfare but worked as a trainee barber one day a week for which he received payment of €40. Counsel for the applicant also outlined to the District Court that the applicant was a musician and was a member of a band who had recently won a prize to record music in Germany. Mention was made of a possible album deal in Texas, USA. This starry prospect might well have been imperilled by the fact of conviction and the extent of the penalty imposed.

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5. The respondent ordered the applicant to pay €300 to Focus Ireland and assigned a period of time in which to do so. The respondent stated that if this direction was complied with, the matter would be struck out on the next date of 16th January, 2014. If the direction was not complied with, the applicant would be convicted and fined €600.

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6. The crux of the present matter arrived when the respondent had finished deciding the sentence to impose. Counsel for the applicant asked the respondent to consider an application for legal aid. It is alleged by the applicant that the respondent refused this application immediately and was of the opinion that the applicant could afford legal representation. The details of this "passage of arms" are set out in more detail hereunder.

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7. Thus arises the matter in contention. The applicant seeks an order of certiorari as the necessary remedy upon judicial review proceedings which will quash the respondent's refusal to grant District Court criminal legal aid pursuant to the 1962 Act.

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8. Leave was granted to apply for judicial review on 16 th December, 2013. The Order granting leave reflects that a stay was applied for but the Order records that no stay was granted. On the 16 th January, 2014, the applicant came before the District Court again. An unsuccessful application was made on behalf of the applicant to adjourn the case pending judicial review. €300 was paid by the applicant in cash and the prosecution was struck out.

The Applicant's Submissions
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9. The applicant contends that the respondent, in reaching his determination on the issue of legal aid, did not conduct an inquiry into the applicant's financial circumstances. The applicant also contends that the respondent failed to consider the necessary statutory criteria regarding the applicant's financial means. Further, the applicant argues that the respondent failed to take into account the gravity of the charge against the applicant. The applicant also submits that his Counsel was not afforded an opportunity to proffer the applicant's completed Statement of Means to the respondent. The applicant states, in his written submissions, that the Statement of Means was in his counsel's hand, but that the respondent "foreclosed any further discussion or submission in deciding the matter without proper inquiry." The applicant's solicitor, Ms. Eleanor Kelly, swore a replying affidavit dated 28th July, 2014, in which it is stated at para. 7:

"I say and believe and am advised by counsel that a full statement of means had been completed by the Applicant. I say that this statement was in Counsel's hand and he was in the process of handing that physically to the Court when the Respondent made his decision refusing legal aid."

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At para. 9 of the same affidavit, Ms. Kelly outlined the contents of the aforementioned Statement of Means, stating:

"I say and believe that the completed statement of means outlined the Applicant's income in full, that he is a trainee barber working one day a week receiving €40 and that he receives the sum of €136 in social welfare payments. I say that his statement of means indicates that he pays rent to his parents in the sum of €70. I say that the Applicant has no savings or monies available to him to avail of legal aid and has no assets."

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10. Essentially, the applicant contends that his Counsel was not allowed to address the District Court in relation to the gravity of the charge levelled against the applicant. The applicant asserts that the respondent had a statutory duty to conduct an inquiry into the matters specified in s. 2(1) of the 1962 Act and failure by the respondent to conduct any such inquiry, adequately or at all, will afford grounds for quashing such a refusal. The applicant also cites some "exceptional circumstances" which accrue in this case, namely: the failure of the respondent to consider the gravity of the offence; the serious consequences for the band's album deal in Texas, USA and the applicant's ability to travel to that jurisdiction; and the ramifications for the applicant's reputation that a conviction would bring. It is contended that the onus of demonstrating the existence of exceptional circumstances does not rest upon the accused person and that the court should take the initiative to inquire as to whether such exceptional circumstances exist ( O'Neill v. Butler [1979] I.L.R.M. 243).

The DPP's Submissions
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11. The Notice Party submits that if one analyses the exchanges between the respondent and the applicant in court on the 21 st November, 2013, the applicant's argument is not correct. The respondent had adjourned sentence in the matter until 16 th January, 2014, to allow the prosecution to be struck out in the event that €300 was paid to Focus Ireland or for a fine in default. Thereafter the legal aid application was pursued as follows:

"COUNSEL:

Judge, I wonder would the Court consider an application for legal aid in the matter-

JUDGE:

No he can pay you.

COUNSEL:

Very good, Judge.

JUDGE:

Either that or he can give you a share of the band, maybe that might work out better.

COUNSEL:

Thank you.

JUDGE:

Thanks."

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12. The Director of Public Prosecutions ("the Director") contends that the applicant, in seeking a declaration that he was a suitable candidate for...

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