Ward v Judge Reynolds
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult |
| Judgment Date | 11 December 2015 |
| Neutral Citation | [2015] IEHC 783 |
| Docket Number | [2014 No. 720 JR] |
| Court | High Court |
| Date | 11 December 2015 |
[2015] IEHC 783
THE HIGH COURT
JUDICIAL REVIEW
O'Malley J.
[2014 No. 720 JR]
Constitution – Crime & Sentencing – The Criminal Justice (Legal Aid) Act, 1962 – The Criminal Legal Aid Non-Statutory District Court (Counsel) Scheme – Right to legal aid
Facts: The applicant sought an order for quashing the decision of the first named respondent for refusing to grant a legal aid (Circuit Court (Counsel) Appeal) certificate on the ground of lack of jurisdiction to do so. The applicant also sought a declaration that the Non-Statutory District Court (Counsel) Scheme implemented by the second named respondent, subsequent to the decision of the Supreme Court in Carmody v The Minister for Justice, Equality and Law Reform [2010] 1.I.R. 635, was ultra vires the Criminal Justice (Legal Aid) Act, 1962 and repugnant to the Constitution. The applicant contended that the second named respondent had acted ultra vires in implementing the scheme in a manner which imposed as a condition precedent to any legal aid (Circuit Court (Counsel) Appeal) certificate that such a certificate must be applied for and granted by the District Court.
Ms. Justice Iseult O'Malley refused to grant the reliefs sought by the applicant. The Court observed that the discretion to grant a legal aid certificate by the Circuit Court was not statutory, but in the interests of justice and notwithstanding the refusal of the District Court to grant such a certificate or the absence of any application to that effect, the Court could still grant that certificate if there were exceptional circumstances or risk of unfair trial. The Court, however, held that the Circuit Court was precluded from revisiting the issue of refusal of grant of such certificate on appeal. The Court found that the present case, which concerned dangerous drunken driving, did not fall into the exceptional category.
In Carmody v. The Minister for Justice, Equality and Law Reform [2010] 1 I.R. 635 the Supreme Court held that a defendant in criminal proceedings in the District Court had a constitutional right to apply for legal aid to include counsel, and a right to have such an application determined on its merits. The Criminal Justice (Legal Aid) Act, 1962 did not make provision for a legal aid certificate to include the services of counsel in the District Court. The Court did not find the Act to be repugnant to the Constitution, but it prohibited the further prosecution of the plaintiff in the case until he was afforded such a right.
The judgment in Carmody was delivered on the 23rd October, 2009. The Minister for Justice, Equality and Law Reform immediately introduced a ‘Non-statutory District Court (Counsel) Scheme’ ( ‘the Scheme’) to remedy the deficit identified by the Supreme Court.
The issue in these proceedings concerns the availability of the Scheme in District Court appeals. The applicant had the benefit of a certificate covering representation by a solicitor in the District Court but did not seek a certificate for Counsel until part of the way through the hearing of his appeal against sentence in the Circuit Court. The respondent judge ruled that, having regard to the terms of the Scheme, she had no jurisdiction to grant such a certificate.
The applicant seeks an order of certiorari quashing the decision of the respondent and a declaration that the Scheme implemented by the second named respondent is ultra vires the Criminal Justice (Legal Aid) Act 1962 and/or repugnant to the Constitution.
The applicant was charged before the District Court with the offences of dangerous driving, driving whilst intoxicated, driving without insurance, failing to produce insurance, driving without a licence and failing to produce a licence. It appears that the charges arose from a road traffic accident. He applied for and was granted a certificate for legal aid, which entitled him to representation by a solicitor.
The applicant pleaded guilty to all charges on the 26th June, 2014. The District Court judge imposed consecutive sentences of five months imprisonment on each of the charges of dangerous driving, driving whilst intoxicated and driving without insurance. He also imposed a fine of €2,000 in relation to each of these three charges, with 90 days imprisonment in default. Further, the applicant was disqualified from driving for a period of 40 years. The other charges were taken into consideration.
The applicant appealed against sentence to the Circuit Court. The appeal was listed before the first name respondent in the District Court Appeals list on 22nd October, 2014, and was part-heard on that day. The applicant was represented by counsel.
The prosecuting officer gave evidence of the circumstances surrounding the road traffic accident which gave rise to the charges against the applicant, and of his previous convictions. The first named respondent also established through her own enquiries of the officer that the applicant was disqualified from driving at the time of the accident.
At this stage the first named respondent asked the applicant if he was serious about proceeding with the appeal, warning him that the sentence could be increased. He was afforded an opportunity to consult with his counsel. The applicant says that having sought ‘detailed advice’ from counsel, he confirmed that he wished to proceed. He then gave evidence as to his personal circumstances.
The first named respondent requested a report from the Probation Service and adjourned the proceedings to the next District Court Appeals list to be held in March, 2015. She specifically noted that the request for a report was not to be taken as a guarantee as to her ultimate decision.
Counsel for the applicant then applied for a legal aid certificate for the appeal. A statement of means was handed into the court. It was confirmed that the applicant had been on legal aid in the District Court. The application was granted.
Counsel then made a further application for a legal aid (Circuit Court (Counsel) Appeal) certificate. The judge asked what jurisdiction she had to make such an order. Counsel referred the judge to the non-statutory scheme implemented in response to the Carmody decision, and to the form to be signed by a judge granting a certificate for counsel.
The judge stated that this application was ‘novel’. Numerous other counsel had appeared before her in the course of the District Court appeals list, and no such application had been moved previously. She granted liberty to counsel to re-mention the matter if he could take the Court through the jurisdiction to grant such a certificate.
The matter was re-mentioned on the following day, the 23rd October, 2014. The Supreme Court judgment in Carmody and the Criminal Justice (Legal Aid) (Amendment) Regulations 2011( S.I. 362/2011) were opened. Counsel also referred to extracts from Coonan and O'Toole, Criminal Procedure in the District Court ( Round Hall, 2001).
No submissions were made on behalf of the prosecution by the state solicitor.
The first named respondent refused the application on the basis that she did not have any jurisdiction to grant it. The ruling was made on the basis that, having regard to the terms of the Scheme, she could not grant a certificate in circumstances where a certificate for counsel had not been granted in the earlier District Court proceedings.
The applicant makes his complaint in the following terms:
‘My appeal against sentence stands part-heard and I will have the assistance of solicitor only without the opportunity to apply for the assistance of Counsel also. Submissions on the severity of my sentence have yet to be made and I am advised that there is also a legal point to be raised with regard to the ‘one transaction rule’ and consecutive sentences. I will be returning to Court on an ‘all options’ basis in circumstances where the Court has warned me of the potential to increase my sentence and I am advised I could be exposed to a maximum sentence of 24 months along with substantial fines.’
The grounds upon which relief is sought are that the first named respondent erred in law in finding that she had no jurisdiction to grant the certificate; that the second named respondent acted ultra vires in implementing the scheme in a manner which imposed as a condition precedent to any legal aid (Circuit Court (Counsel) Appeal) certificate that such certificate must be applied for and granted by the District Court; and that the Scheme is repugnant to the Constitution to the extent that it precludes the applicant from exercising his constitutional right to apply for legal aid to include counsel, and to have such application determined on its merits, by either the District Court or the Circuit Court hearing the appeal.
No affidavit has been filed on behalf of the respondents and there is no dispute as to the facts.
It is pleaded that paragraph 2(b) of the Scheme makes clear that counsel may be assigned for an appeal from the District Court only where such a certificate was ‘granted in respect of him/her by the District Court’. The first named respondent therefore was correct in her interpretation and application of the Scheme.
The Scheme allows for an application for counsel to be made in the District Court, and for counsel to be assigned in exceptional cases where it is necessary due to the gravity of the charge and the complexity of the case. It also provides, in common with the statutory provisions for...
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