High Court: Legal Aid Board’s decision to refuse payment of legal expenses was ultra vires



A man who was refused payment of his legal fees under the Legal Aid Custody Issues Scheme has been granted an Order of certiorari, quashing the decision of the Legal Aid Board.

Finding that the decision was ultra vires the scheme and ultra vires the Board’s powers under the scheme, Ms Justice Tara Burns said that it was clear that the scheme applied to criminal matters and matters where the liberty of an applicant is at stake, and that interpret the section in any other manner ‘would do violence to the words of the section’.

Background

In the District Court, Mr Bernie McDonagh had been charged with an offence of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001. The offence occurred in July 2011 when Mr McDonagh was 16-years-old.

In December 2013, Mr McDonagh was convicted, and the matter was adjourned from time to time for sentence.

In August 2014, a Certificate pursuant to s. 14 of the Sex Offenders Act 2001 issued in respect of Mr McDonagh, thereby subjecting him to reporting requirements. Thereafter, Mr McDonagh instituted judicial review proceedings principally relating to the s.14 Certificate.

In accordance with s. 9 of the Legal Aid Custody Issues Scheme, at the commencement of the 2014 Judicial Review Proceedings, the court was informed that Mr McDonagh would be seeking a recommendation under the Legal Aid Custody Issues Scheme for appropriate legal representation.

In November 2014, a District Court Order was drawn up and perfected which confirmed that Mr McDonagh had been convicted of the offence of sexual assault. As a result, Mr McDonagh was invited to withdraw the 2014 Judicial Review Proceedings. Mr McDonagh withdrew the judicial review proceedings and the proceedings were struck out with the High Court granting a recommendation under the Legal Aid Custody Issues Scheme that the costs of Mr McDonagh be paid for by the State, in accordance with s. 9 of the Legal Aid Custody Issues Scheme.

In July 2015, the District Court concluded the proceedings before it by considering the sentence to be imposed. Matters were finalised in a manner which resulted in the conviction which had been recorded against Mr McDonagh being withdrawn. Arising from this, Mr McDonagh no longer was subject to the reporting requirements of the Sex Offenders Act 2001.

Legal Aid Board’s refusal to pay legal fees

In February 2016, Mr McDonagh made a claim to the Legal Aid Board for payment of legal fees in the 2014 Judicial Review Proceedings under the Legal Aid Custody Issues Scheme. This was declined.

Following a request by Mr McDonagh’s solicitor to review this decision, the Legal Aid Board again determined to decline the claim for payment of legal fees.

In a letter dated 5th September 2017, the Legal Aid Board stated inter alia that the scheme was concerned with “custody” issues, that the judicial review proceedings had ‘no bearing on the “liberty” of the applicant’ and further, that the proceedings did not ‘pertain to a “criminal matter” which would come within the scope of the Scheme’.

High Court

In the High Court, Mr McDonagh claimed that the Legal Aid Board’s decision in this regard was ultra vires the Legal Aid Custody Issues Scheme and/or ultra vires its powers under the Legal Aid Custody Issues Scheme in that it erred in law and/or took irrelevant considerations into account.

Ms Justice Burns said that a literal reading of s. 4(iii) of the Legal Aid Custody Issues Scheme directed that the scheme should apply to two categories of Judicial Review: criminal matters and matters where the liberty of the Applicant is at stake

Relying on Application of Woods [1970] IR 154, the Legal Aid Board argued that the Scheme must be interpreted in accordance with the title and therefore the Scheme can only apply to cases where the liberty of the Applicant is at stake.

Questioning whether the ratio of the Woods case continued to apply, “without extension, to a Legal Aid Scheme which came into existence over 40 years later”, Ms Justice Burns said it was clear that the original scheme had been extended over a period of time since its inception.

Emphasising that it was absolutely clear from the ordinary meaning of s.4 of the Legal Aid Custody Issues Scheme that ‘Judicial Reviews concerning criminal matters’ and ‘Judicial Reviews concerning matters where the liberty of the Applicant is at stake’ are covered by the Scheme; Ms Justice Burns said that to ‘interpret the section in any other manner would do violence to the words of the section’.

Ms Justice Burns said that the reference to Custody Issues in the title did not override the very clear and unambiguous words of the section.

Ms Justice Burns said that she agreed with Mr McDonagh’s contention that he met both of the conditions set out in s. 4 of the Scheme in any event:

  1. The 2014 Judicial Review Proceedings concerned a criminal matter arising from the certification of Mr McDonagh as a Sex Offender of foot of a conviction for a sexual assault.
  2. A Judicial Review which concerned itself with the legality of imposing reporting requirements on an individual, the breach of which is a criminal offence, very much raises the issue of Mr McDonagh’s liberty being put at stake.

Stating that the decision of the Legal Aid Board to decline Mr McDonagh’s claim for payment of his legal fees in the 2014 Judicial Review Proceedings was ultra vires, Ms Justice Burns granted an Order of certiorari quashing the decision of the Legal Aid Board.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2021



Other judgments by Ms Justice Tara Burns