Walsh v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 18 February 2009
• Neutral Citation: [2009] IEHC 102
• Court: High Court
• Docket Number: [2006 No. 1190 P]
• Date: 18 February 2009

[2009] IEHC 102

THE HIGH COURT

[No. 1190 P/2006]

Walsh v Min for Justice & Ors

BETWEEN

PAUL WALSH

PLAINTIFF

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE MINISTER FOR FINANCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S3

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S3(2)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S3(2)(B)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S3(2)(C)(ii)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S3(1)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S10(1)

FINANCE ACT 1998 S132

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S10(1)(D)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S10(1)(E)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S10(1)(F)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S10(1)(D)(ii)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S10

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 4

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 5

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 5(3)

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 5(4)(A)

TAXES CONSOLIDATION ACT 1997 S1095

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 6

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 7

TAXES CONSOLIDATION ACT 1997 S1094(5)

TAXES CONSOLIDATION ACT 1997 S1094(6)

TAXES CONSOLIDATION ACT 1997 S1094(7)

TAXES CONSOLIDATION ACT 1997 S1095(7)

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 9

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 9(2)

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 8

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 10

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 11(4)

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 11(5)

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 11(6)

HEALY, STATE v DONOGHUE 1976 IR 325

INTERPRETATION ACT 2005 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

RSC O.60A

B (D) v MIN FOR HEALTH & HEPATITIS C COMPENSATION TRIBUNAL 2003 3 IR 12 2003/4/812

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(9)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(9)(A)

HOWARD v CMRS OF PUBLIC WORKS 1994 1 IR 101 1993/3/683

CRAIES, EDGAR CRAIES ON STATUTE LAW 7ED 1971 109

CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGS 1999 SI 135/1999 REG 10(3)

MULCAHY v MIN FOR MARINE UNREP KEANE 4.11.1994 1995/5/1198

FISHERIES (CONSOLIDATION) ACT 1959 S15

FISHERIES ACT 1980 S54

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S7

INTERPRETATION ACT 2005 S5(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

ARTICO v ITALY 1981 3 EHRR 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.3(C)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

COOKE v WALSH 1984 IR 710 1983 ILRM 429 1983/8/2150

HEALTH ACT 1970 S72(2)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S10(1)(C)

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S10(1)(A)

CONSTITUTION ART 34

CONSTITUTION ART 38.1

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

STATUTE

Interpretation

Legal aid regulations - Plaintiff barrister removed from legal aid register because of failure to furnish tax clearance certificate - Tax clearance certificate subsequently obtained and furnished to respondent - Plaintiff subsequently restored to legal aid register shortly after taking instructions in legal aid case - Whether obtaining of tax clearance certificate prior to receipt of instructions entitled plaintiff to recover fees - Whether purposive interpretation appropriate - Whether regulation ambiguous - Whether necessary to imply words into regulations in order to give them sense and meaning - Whether casus omissus in regulations - Whether perceived lacuna in regulations - Whether regulations failed to provide for fair procedures - Whether regulations unconstitutional or incompatible with European Convention on Human Rights - Whether regulations ultra vires - Whether right of defendants in criminal proceedings to representation of relevance - Whether plaintiff's rights under Convention engaged - Criminal Justice (Legal Aid) Act 1962 (No 12), ss 3, 7, 10 - Finance Act 1998 (No 3) s 132 - Interpretation Act 2005 (No 23), s 5 - European Convention on Human Rights Act 2003 (No 20), s 2 - Health Act 1970 (No 1), s 72 - Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations 1999 (SI 135/1999), regs 4, 5, 6, 7, 8, 9 and 11 - DB v Minister for Health [2003] 3 IR 12 applied; Howard v Commissioners of Public Work [1994] 1 IR 101, Cooke v Walsh [1984] IR 710 and East Donegal Co-Operative Livestock Mart Limited v Attorney General [1070] IR 317 considered; Mulcahy v Minister for the Marine (Unrep, Keane J, 4/11/1994), State (Healy) v. Donoghue [1976] IR 325 and Artico v Italy [1980] 3 EHRR 1 distinguished - Plaintiff's claim dismissed (2006/1190P - Laffoy J - 18/2/2009) [2009] IEHC 102

Walsh v Minister for Justice

1 Judgment of Ms. Justice Laffoy delivered on the 18th day of February, 2009.

The proceedings

2 In these proceedings the plaintiff, who is a practising Senior Counsel, seeks remedies for the refusal of the first named defendant (the Minister), who has statutory responsibility for the provision of criminal legal aid under the Criminal Justice (Legal Aid) Act, 1962 (the Act of 1962) and the regulations made thereunder, to discharge his fees in connection with the representation by him of an accused person, who had the benefit of a certificate for free legal aid which covered representation by senior counsel. The Minister's refusal was on the ground of non-compliance by the plaintiff with the requirements of the Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations, 1999 ( S.I. No. 135 of 1999) (the 1999 Regulations).

3 I propose setting out the statutory provisions and regulations which are in issue before outlining the factual circumstances which give rise to the plaintiff's claim and the bases on which it is advanced.

Relevant statutory provisions and regulations.

4 The substantive provision under which a legal aid certificate was granted to the accused was s. 3 of the Act of 1962. Sub-section (2) of s. 3 mandates the granting of a legal aid (trial on indictment) certificate on application therefor, where it appears to the judge that the means of the accused are insufficient to enable him to obtain legal aid (para. (b)), and that, having regard to all of the circumstances of the case, it is essential in the interests of justice that the person should have legal aid in the preparation and conduct of his defence at the trial (para. (c) (ii)). By virtue of subs. (1), such certificate entitled the accused to have a solicitor and counsel assigned to him for the purposes of the preparation and conduct of his defence "in such manner as may be prescribed by regulations under section 10" of the Act of 1962.

5 Section 10(1) of the Act of 1962 empowers the Minister to make regulations for carrying the Act into effect and, as originally enacted, itemised certain matters which might be prescribed in the regulations, which were set out in paras. (a) (the form of legal aid certificate), (b) (with the consent of the second defendant, rates or scales of payment of fees, costs and expenses payable out of monies provided by the Oireachtas), and (c) (the manner in which solicitors and counsel are to be assigned) of that sub-section. Section 10(1) of the Act of 1962 was amended by s. 132 of the Finance Act, 1998 by the inclusion of additional paragraphs, paragraphs (d), (e) and (f). Paragraph (d), insofar as is relevant for present purposes, empowers the Minister, in sub-para. (ii), to prescribe-

"a requirement that a barrister, the willingness of whom to act for persons to whom legal aid certificates are granted has been notified to the Minister by the General Council of the Bar of Ireland in accordance with the Criminal Justice (Legal Aid) Regulations, 1965, must, when required to do so by the Minister, furnish to the Minister a certificate issued by the Collector-General ... in respect of that barrister certifying that he has complied with all the obligations imposed on him by the Tax Acts, the Capital Gains Tax Acts and the Value-Added Tax Act, 1972, and the enactments amending or extending that Act (and any instruments made under those Acts) in relation to-"

(I) the payment or remittance of the taxes, interest and penalties required to be paid or remitted, and

(II) the delivery of returns,"

6 Paragraph (e) empowers the Minister to prescribe the conditions that must be satisfied before a certificate referred to in paragraph (d) may be issued by the Collector-General. Paragraph (f) empowers the Minister to prescribe-

"matters consequential on, or incidental to, a requirement or condition prescribed under paragraph (d) or (e) of this subsection (which may include a provision enabling the deletion from any list kept pursuant to regulations under this subsection of the name of a ... barrister who has failed to comply with a requirement prescribed under the said paragraph (d))."

7 The 1999 Regulations were made by the Minister...