Man fails to prove necessity of legal aid for counsel in Circuit Court proceedings



A man who sought legal aid for counsel in an appeal against a driving conviction has failed to have a non-statutory legal aid scheme declared ultra vires because he had not proven any need for it.

Mr Martin Ward attempted to have the Non-statutory District Court (Counsel) Scheme declared ultra vires the Criminal Justice (Legal Aid) Act 1962 and/or repugnant to the Constitution, with the High Court subsequently finding that the scheme did not prevent the awarding of counsel, but that he had not proven any such need for it.

The introduction of the Scheme had followed the Supreme Court judgment in Carmody v. The Minister for Justice, Equality and Law Reform 1 I.R. 635, which found 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 Scheme was therefore introduced to address the deficit in theCriminal Justice (Legal Aid) Act 1962, as identified in that judgment.

In the present case, Mr Ward had been charged before the District Court with various driving offences, and had applied and been granted a certificate for legal aid, entitling him to representation by a solicitor.

Mr Ward had pled guilty to all charges, but had appealed the sentence to the Circuit Court.

During appeal, he was represented by counsel, and half way through the proceedings, the counsel applied for a legal aid certificate for the appeal, which was granted, and a legal aid (Circuit Court (Counsel) Appeal) certificate, which was refused on the basis that under the Scheme the Circuit Court judge could not grant a certificate in circumstances where a certificate for counsel had not been granted in the earlier District Court proceedings.

Mr Ward challenged this decision, arguing that the Judge erred in reaching this conclusion, that the Scheme was ultra vires, and that it was unconstitutional in that it precluded him from exercising his constitutional right to apply for legal aid to include counsel and to have such an application determined on its merits.

The respondents, comprising Judge Leonie Reynolds and the Minister for Justice and Equality and the Director of Public Prosecutions, Ireland and the Attorney General, submitted that “it was open to the applicant to apply for a certificate for counsel in the District Court if the relevant criteria applied. He did not do so and is now precluded from challenging the subsequent refusal by the Circuit Court judge”.

Further, it was submitted that the Scheme only envisioned counsel being applied infrequently, in cases of particular gravity or complexity or other exceptional circumstances. It was argued that the road traffic offences within the current case did not reach this threshold.

Delivering the High Court judgment, Ms. Justice Iseult O’Malley outlined the relevant provisions of the Criminal Justice (Legal Aid) Act 1962, and the challenge to it brought in the judgment of Carmody v. The Minister for Justice, Equality and Law Reform.

She noted that the Court in that case established that “in those criminal cases in which the District Court grants legal aid, the right of a defendant to such legal aid will normally continue to be met when he or she is awarded legal aid for a solicitor only. This is so even where the case may be considered to be grave, complex or involve other exceptional circumstances”.

However, the Act was deficient in its failure to provide for the possibility in exceptional cases, of representation by counsel.

The Judge the outlined the relevant provisions within the Scheme, noting that in appeals from the District Court to the Circuit Court, the Scheme provides for counsel to be assigned in the Circuit Court if it was assigned in the District Court.

After considering the parties’ submissions, the Judge found that “having regard to the overall thrust of the decision in Carmody, and to the analysis of the significance of a material change in circumstances in Brett, it is, I believe, necessary that a Circuit Court judge should be entitled to grant a certificate for counsel for the purposes of an appeal where it is, in the court’s view, essential in the interests of justice”.

In the present case, the fact that counsel were not applied for before the District Court would not be binding on the Circuit Court if there were proper grounds for finding that a certificate for counsel was necessary on appeal.

However, while this fact assisted the applicant Mr Ward, the Judge found that he did not have sufficient legal interest to bring the challenge, as he had “adduced no evidence of any matter tending to show that his case is either graver or more complex than the norm for District Court cases.”

She further noted: “A sentence hearing in the District Court, or in the Circuit Court on appeal, is manifestly something that any solicitor whose name is on the legal aid panel must be capable of conducting.”

She therefore concluded that “having regard to the observations of the Supreme Court in Carmody as to the exceptional nature of the cases where the assistance of counsel in District Court cases will be considered to be essential in the interests of justice, the applicant in the instant case has not established that he could, even potentially, be entitled to legal aid for such assistance”.

  • by Rachel Killean for Irish Legal News