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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Whelan -v- District Court Judge Fitzpatrick & Anor [2007] IEHC 213 (13 June 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H213.html Cite as: [2008] 2 IR 678, [2007] IEHC 213 |
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Judgment Title: Whelan -v- District Court Judge Fitzpatrick & Anor Composition of Court: Budd J. Judgment by: Budd J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 213 The High Court Judicial Review [2006 No. 303 JR] betweenGareth Whelan Applicant and District Court Judge Thomas Fitzpatrick and the Director of Public Prosecutions Respondents Judgment of Mr. Justice Declan Budd delivered on the 13th day of June 2007 Background The applicant seeks an order of certiorari in relation to the decision of the first named respondent District Court Judge made on 15th February, 2006 refusing an application made by counsel on behalf of the applicant for legal aid pursuant to s. 2 of the Criminal Justice (Legal Aid) Act 1962. The applicant was summoned to appear in the District Court in relation to an offence, contrary to s. 13(3) of the Road Traffic Act 1994, in relation to an alleged refusal by him to permit a designated doctor to take from the applicant a specimen of his blood or at his option to provide to the designated doctor a specimen of urine on 3rd December, 2004 at Sundrive Road, Garda Station. The grounds upon which the applicant seeks relief can be summarised as follows:-
(b) The first respondent gave consideration to an irrelevant factor in the exercise of his statutory duty; (c) The first respondent adopted a strict and irrelevant policy which fettered the proper exercise of his statutory discretion.” Statutory provision Section 2 of the Criminal Justice (Legal Aid) Act 1962, as substituted by s. 5(6) of the Criminal Justice (Miscellaneous Provisions) Act 1997, provides as follows:-
(b) that by reason of the gravity of the offence with which he is charged or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it,
Factual basis The applicant was summoned to appear before District Court 52 in the Richmond Hospital Court Complex on 15th February, 2006 to answer a complaint that he failed to comply with a requirement to provide a sample of his blood, or urine, an offence contrary to s. 13(3) of the Road Traffic Act 1994, as amended. The maximum sentence which may be imposed on conviction in respect of that offence is six months imprisonment and/or a fine of €2,500. Prior to his appearance in court, the applicant contacted Philip Hannon, of Philip Hannon Solicitors, The Capel Building, Mary’s Abbey, Dublin 7. Mr. Hannon agreed to represent the applicant in his defence of the above prosecution, contingent on the applicant being granted legal aid or on payment of appropriate legal fees. Having been made aware of the applicant’s circumstances, Mr. Hannon agreed to instruct counsel to appear for the applicant on the above date to seek legal aid and he then did this. Accordingly on 15th February, 2006 counsel appeared for the applicant and indicated that the applicant was pleading not guilty to the complaint and applied to the first named respondent District Court Judge for legal aid, pursuant to s. 2 of the Criminal Justice (Legal Aid)Act 1962 on behalf of the applicant. The statement of the applicant’s means (exhibited as Exhibit B in the affidavit of Philip Hannon which was sworn on 13th March, 2006) was handed into court in support of this application. This statement of means of Gareth Whelan appears to have been filled in or at least signed by him on 13th February, 2006 and makes clear that he was living in his mother’s house in Kimmage, was unemployed and in receipt of a €165 per week Social Welfare payment, of which he contributed €50 per week to his mother for his lodgings and that he also supported one child aged fifteen months in the sum of €80 per week. His answers to questions 9 and 10 make clear that he has no other money available which could be used for obtaining legal aid and he has no other assets which could be used for the same purpose and that he has neither parents or guardians able to provide or to assist him to provide himself with legal aid. These matters are deposed to, in the affidavit of Philip Hannon sworn on 13th March, 2006 and the court was also informed by counsel that the applicant was in receipt of unemployment assistance and counsel indicated to the first named respondent that “the applicant may be in jeopardy of a custodial sentence” if convicted of the complaint of refusal to give a specimen. This phraseology has a significance in the parlance of District Court practitioners comparable to the use of the phrase “my client intends to take a certain course” as used in the Circuit Court to indicate that Counsel’s accused client is likely to plead guilty when arraigned. Such euphemistic phrases are well understood by judges and practitioners, although the actual meaning carried by and implications in the use of the phrase might not be obvious to an uninitiated bystander. I will return to this significant point in due course. The reason for using such a formula is to convey what is believed by Counsel to be likely to happen when his client is arraigned but the choice of plea is the prerogative of the accused and there could be a change of mind before the formal answer “guilty” is given by the client. Hence the use of the phrase by Counsel with its connotations well understood by the judge, registrar, lawyers and cognoscenti in Court, as it precludes the peril of the discharge of a jury panel if an unexpected change of mind should occur. It is clear that the first named respondent was informed not only of the impecunious situation of the applicant but also specifically that the applicant might be at risk of a custodial sentence in the event that he should be convicted of the complaint before the court. I was informed by Conor Devally S.C.. counsel for the applicant, that one experienced District Court Judge frequently asked the member of the Gardaí responsible for the prosecution case the question “is this person at risk?” which was in fact a euphemism for the question:- “Is this accused in peril of receiving a jail term?” If the answer to this euphemism was in the affirmative, then this carried the implication that the accused was on hazard of being incarcerated. Accordingly it followed that if the person was impecunious and, if there were no countervailing exceptional circumstances, then the accused should be informed of the availability of legal assistance. On this aspect I shall return to what Shanley J. said, which he would have carefully considered and written out in his own hand, in the case of Clarke v. Kirby and the Director of Public Prosecutions [1998] 2 I.L.R.M. 30 in respect of the matters which should be taken into account by the District Court Judge, bearing in mind the intention of the Legislature and the absence of an appeal of the decision. The first named respondent’s reaction to counsel’s application was to say that if the applicant could afford a car, he could afford a solicitor. Counsel for the applicant thereupon advised the first named respondent that the applicant’s instructions were that he was not driving his own car, that there was no evidence that he was driving his own car and that his means were such that he could not afford legal assistance unaided. Counsel also made submission that, in the light of the offence alleged, to which there are a number of technical legal defences, the applicant would not be able to defend himself adequately should he not be legally represented. None of this was controverted. The first named respondent reacted to the submissions by stating that he “did not give legal aid in driving cases”. The legal aid application was declined with no other reasons being given by the first named respondent. I propose to set out paras. 8 and 9 of Mr. Hannon’s affidavit but before doing this I should make it clear that counsel for the Director, Sunniva McDonagh has made it clear that the first named respondent has not taken issue with the matters as set out in the affidavit of Philip Hannon grounding this application which was sworn on 13th March, 2006. From his affidavit it is clear that although the first named respondent queried the applicant’s means as set out in the statement of means (by referring to his ability to afford a car), legal aid was not refused on the basis that the applicant did have the means to afford legal representation. Furthermore, this is not a case which deals with the applicant’s right to be informed of his right to apply for legal aid. Nor was it a case in which an applicant was unrepresented in making his application for legal aid. Rather, Counsel submits that this is a case in which the applicant was represented by solicitor and counsel for the specific purpose of applying for legal aid. In that regard she suggests that the first named respondent was entitled to presume that relevant matters touching on the application would be put before him by counsel. She stresses that there is a contrast between a judge conducting an enquiry in relation to an unrepresented and perhaps inarticulate litigant, unfamiliar with court practices and the circumstances where an accused has procured legal representation in order to have his case presented. She makes a good point well but perhaps paints a picture of a rather Utopian District Court untroubled by the constraints and pressures of a long series of difficult and complex cases of infinite human variety and at times poverty and misery. The intrusion of Junior Counsel, with legal points of nicety in a legal aid application, into a harrowing list of fraught cases may perhaps not always be the most welcome interlude. Maybe decorum and patience prevail now and memory fades in respect of the occasional tornado-like reception awaiting Counsel making inept legal points and holding up a list. Submission on behalf of the applicant The applicant seeks certiorari by way of judicial review in respect of the above decision of the first named respondent District Court Judge to refuse the application for legal aid. I should mention that the applicant’s solicitor in his affidavit makes clear that his agreement to instruct counsel to appear on 15th February, 2006 did not amount to an agreement to represent the applicant in the conduct of his case should the applicant fail to obtain legal aid and that it was clear that the applicant was not in a position to engage Mr. Hannon privately from his personal funds in the event of legal aid being refused. The applicant advanced four grounds in support of his application for relief:- (i) The submission was made that the first named respondent, in making the above decision failed to conduct an adequate enquiry into those matters referred to in s. 2(1)(a) of the Criminal Justice (Legal Aid) Act 1962, i.e. whether the means of the applicant, and the gravity of the charge or the existence of exceptional circumstances, require that legal aid be assigned in the interests of justice. (ii) The submission was made that the first named respondent gave consideration to an extraneous and irrelevant factor in the exercise of his statutory duty to determine whether the grant of legal aid was appropriate; this was in the context that he had stated that the application before the Court was in respect of a driving offence and that he did not grant legal aid in driving cases.
The constitutional right to a trial in due course of law and the State’s constitutional duty to vindicate, by its laws, the rights of the citizen as far as practicable, were held by the Supreme Court in the State (Healy) v. Donoghue [1976] I.R. 325 to provide for a right to legal aid in the preparation of an accused’s defence, where required by the interests of justice. In that case at p. 349 Chief Justice O’Higgins said;-
The general view of what is fair and proper in relation to criminal trials has always been the subject of change and development. Rules of evidence and rules of procedure gradually evolved as notions of fairness developed. The right to speak and to give evidence, and the right to be represented by a lawyer of one's choice were recognised gradually. To-day many people would be horrified to learn how far it was necessary to travel in order to create a balance between the accuser and the accused. If the right to be represented is now an acknowledged right of an accused person, justice requires something more when, because of a lack of means, a person facing a serious criminal charge cannot provide a lawyer for his own defence. In my view the concept of justice under the Constitution, or constitutional justice (to use the phrase used in the judgments of this Court in McDonald v. Bord na gCon, [1965] I.R. 217, in East Donegal Co-Operative v. The Attorney General [1970] I.R. 317 and in the majority judgment of this Court in Glover v. B.L.N. [1973] I.R. 388 requires that in such circumstances the person charged must be afforded the opportunity of being represented. This opportunity must be provided by the State. Only in this way can justice be done, and only by recognising and discharging this duty can the State be said to vindicate the personal rights of the person charged. To hold otherwise would be to tolerate a situation in which the nature and extent of a man's ability to defend himself, when accused, could depend on the nature and extent of his means; that would be to tolerate injustice. That this view is now commonly held in most countries of the Western World is clear from the provisions of the European Convention on Human Rights, which was ratified by Ireland on the 25th February, 1953, and from the development in recent years of judicial opinion in the Supreme Court of the United States.”
That implied guarantee is effectuated in the case of poor persons by the Criminal Justice (Legal Aid) Act, 1962. Section 2, sub-s. 1, of that Act mandates that the District Court, on application being made to it, shall give a certificate of entitlement to free legal aid to a person charged before it, if it appears to the court that his means are insufficient to enable him to obtain legal aid and that by reason of the gravity of the charge, or of exceptional circumstances, it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence.”
Prior to 1962, there must have been many cases in which legal aid for poor persons charged with offences was necessary and was not available to them. The Oireachtas, recognising the necessity to implement the provisions of the Constitution to which I have already referred and to ensure a fair trial for persons too poor to engage a lawyer to defend them, enacted the Criminal Justice (Legal Aid) Act, 1962. Under s. 2, sub-s. 1, of the Act of 1962 if it appears to the District Court that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid and that, by reason of the gravity of the charge or exceptional circumstances, it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence, the District Court shall, on application being made to it, grant a certificate for free legal aid to that person and, thereupon, he becomes entitled to have a solicitor assigned to him. … Therefore, free legal aid is available to a poor person charged in the District Court where it is essential in the interests of justice either because the charge is a grave one or ‘by reason of … exceptional circumstances.’ These words are not defined and the District Justice is left at large to consider the particular circumstances of each case, including such matters as the age, infirmity, mental capacity, education and illiteracy or some other handicap of the person charged. The provision of free legal aid to a poor person charged in the District Court enables him to meet the charges made against him, to obtain advice as to the proper plea to make to the charges, to ensure that only properly admissible evidence is given in the District Court, to have the witnesses for the prosecution cross-examined on his behalf, and to have his case presented in the best possible light and, generally, to ensure a fair trial for him.” On reflection, it is fair to say that the number of statutes involved in the making of amendments to the provisions in respect of this offence is such that one might have expected the Oireachtas to pass a consolidated statute including all the provisions in one Act so that in this, a democratic representative parliamentary republic, a citizen is able to read the one Act and know that the basic Act and the many amendments thereto are to be found simply in one consolidated statute and not concealed in a maze of amendments. The contention being made on behalf of the applicant is that the learned District Court Judge failed to embark on a proper inquiry about the case which was being made for legal aid by guillotining the inquiry before he embarked on it at all. The Judge indicated a predetermined idiosyncratic view that “he did not give legal aid in driving cases” and this ruling appears to have governed the matter and thus precluded any proper inquiry being undertaken as to the merits of the application on foot of the terms of s. 2 of the Criminal Justice (Legal Aid) Act 1962. There are the factors mentioned by the Oireachtas in the Section as being the criteria set out by the legislature as matters which at least deserve consideration, such as the means of the applicant or the existence of special circumstances. In fact counsel did alert the first named respondent to the very important risk of imprisonment which is usually recognised as a decisive or significant factor but the critical importance of this factor as to the applicant being on hazard of a custodial sentence does not seem to have caused the respondent to unfasten or free himself from the fetters which he had imposed on the proper exercise of his discretion. He failed to release himself from the spancels which he had himself imposed on the proper exercise of his discretion by inserting and acting on a self-imposed predetermining extraneous rule which was never intended by the legislature or mentioned by it in the legislation. In view of the importance of the facility of being able to use a motorcar, particularly in remote parts of the country and as an attribute of employability, one would have thought that in this day and age the importance of being represented so that all that can be said for one as a client is said by counsel and solicitor would be particularly significant in such a complex area of case law and legalistic prerequisites about the mode of extraction of blood or the taking of urine procedures. No doubt such safeguards may be justified by the serious nature of intrusions on liberty and bodily integrity of the suspect. In para. 9 of his affidavit Mr. Hannon made it clear that the first named respondent, in refusing the application for legal aid, stated that he “did not give legal aid in driving cases” and that he gave no other reason in his refusal to assign legal aid. This was despite the fact that the applicant was impecunious since the suggestion that he owned a car had been negated. This was a significant and serious charge in the light of the fact that counsel had intimated that the applicant may be in jeopardy of a custodial sentence if convicted. This type of phrase is used in the District Court to indicate that the applicant is at risk of a custodial sentence and carries the implication that there is a previous blemish on his record or some other factor which would put him in jeopardy of incarceration as a penalty. In summary the applicant’s case is that in adopting a policy of not giving legal aid in “driving cases”, the first named respondent took into consideration and acted upon an irrelevant consideration, which was extraneous to the matters set out by the Oireachtas and thus improperly fettered his own statutory discretion by erecting this additional predetermining factor at the threshold before his embarking on a consideration of the relevant factors in the case. Mr. Hannon also says at para. 11 of his affidavit that the decision of the first named respondent is final and that no appeal lies in respect of his refusal to assign legal aid. His belief would appear to be incontrovertible in that it is obviously based on s. 2(2) of the Act of 1962 which states:-
Failure to inquire into or to consider the appropriate factors In addition to the contention that the first named respondent had precluded himself from embarking on a proper inquiry in relation to the factors affecting his decision, counsel for the applicant also submitted that the principle is that a decision making authority must consider all relevant factors and disregard all irrelevant factors and that this is clearly stated in the decision of Finlay C.J. in P. and F. Sharpe v. Dublin City and County Manager [1989] I.R. 701, at pp. 717/8 where he held that:-
(a) The means of an applicant preclude him from otherwise obtaining legal aid, and either (b) The gravity of the charge, including the likely consequences on conviction, warrants the grant of legal aid, or (c) There are exceptional circumstances consequent to which the interests of justice require that legal aid be assigned. His submission went on to the effect that the applicant’s means were such that he was unable to engage legal assistance otherwise than through the criminal legal aid scheme and that this was represented to the first named respondent both by counsel and by the submission of the statutory declaration of the applicant’s means (Exhibit B). His contention was that, at this point and, in the light of the application made, the first named respondent ought to have considered the gravity of the charge and should have inquired into whether exceptional circumstances existed in this case. It is not controverted that the first named respondent was informed that the applicant was at risk of receiving a custodial sentence and I have explained why it was implicit in this guarded phrase that there was a blemish on the applicant’s record which, in the event of his conviction, could place him in jeopardy of incarceration. In Cahill v. Judge Reilly [1994] 3 I.R. 547 Denham J. considered the principles set out in The State (Healy) v. Donohue [1976] I.R. 325 in respect of s. 2 of the Act of 1962 and said at p. 551 - 552 having quoted Griffin J. at [1976] I.R. 325, p. 360:-
… The sentence in a case such as this could have been a fine or other non-custodial determination. It was open to the first respondent initially to consider the case to be one which may not or would probably not require a custodial sentence. Clearly this case became serious, from the point of view of a custodial sentence, when the court considered the previous convictions. … In this case, after the conviction, it became apparent that this was a possible custodial case and at that time the first respondent should have taken steps to ensure that the applicant's constitutional rights were not violated. It appears to me that this was what was envisaged by Griffin J. in The State (Healy) v. Donoghue [1976] I.R. 325, 361 where he stated:-
Taking in to account of an irrelevant and predetermining consideration Counsel for the applicant then submitted that the first named respondent, in having regard to the fact that the instant case was a “driving case” and in refusing legal aid on that basis, took an irrelevant consideration into account which was extraneous and was not germane to the crucial issues and lead to a predetermination of the decision and accordingly made his decision on the basis of an erroneous consideration. He enlarged on this by submitting that the first named respondent’s policy not to grant legal aid in “driving cases” amounts to the imposition of an additional criterion in that a criminal case, (when the applicant would otherwise be suitable for the grant of legal aid) must be a case which does not involve an offence contrary to the Road Traffic Acts. While counsel accepted that a number of offences created by the Road Traffic Acts (the prosecution of which may be considered “driving cases”) are of a minor nature when compared to the full range of criminal offences created by statute and it is accepted that in the case of those minor offences the grant of legal aid might not have been appropriate in the circumstances, nevertheless the submission was that the first named respondent should have considered the specific offence charged in the present case and should have assessed its real gravity. Counsel enlarged on this by saying that the factors to be included in consideration when assessing the gravity of the offence are:-
The operation of a strict policy Counsel submitted that the first named respondent, in making a determination consequent to an inflexible policy not to grant legal aid in “driving cases” did so without reference to the circumstances of the instant case and therefore fettered himself in the exercise of his discretion pursuant to s. 2 of the Act of 1962. He said that, even had the first named respondent been entitled to proclaim such a policy, that he erred in the inflexible application of that pre-ordained policy by his pronouncement being made prior to engaging in an enquiry and without reference to the circumstances of the case before the court. Counsel submitted that the general principle as regards the operation of an inflexible policy is illustrated by the classic statement of Bankes L.J. in R. v. Port of London ex parte Kynoch [1919] 1 K.B. 176, where he held at p. 184, that:-
The consequence of the ultra vires decision Counsel then submitted that the first named respondent, in failing to have regard to the legitimate and relevant factors before him, in making his decision based on a legally inappropriate and irrelevant factor and by operating an inflexible policy which pre-determined the outcome of his considerations and enquiry, had acted unreasonably and ultra vires. He referred the court to the decision of Henchy J. in The State (Cussen) v. Brennan [1981] I.R. 181, as being helpful. In that case the Supreme Court held that the decision of the Local Appointments Commissioners to give extra credit to otherwise qualifying candidates with Irish speaking ability, where this went outside the terms of reference laid down for the Commissioners by the Minister, was ultra vires the discretion vested in them. On this basis counsel went on to submit that, since the determinative consideration of the case had been that it was a “driving case” and in such a case the first named respondent had adopted a policy of non eligibility for legal aid, then this caused the decision to be ultra vires of the statutory function of the first named respondent pursuant to the terms of the Act of 1962. Counsel concluded his submission by contending that the applicant, charged with an offence of gravity and at risk of a custodial sentence and otherwise unable to avail of legal assistance, was entitled to legal aid in the vindication of his right to a fair trial. At the very least, should the first named respondent have properly exercised his discretion and had determined that legal aid was not required, the applicant was entitled to the proper consideration of his application for legal aid and to the proper consideration of the grounds raised by him in his application for legal aid. Counsel submitted that, in refusing legal aid in the manner in which he did, the first named respondent failed to vindicate the applicant’s rights to natural and constitutional justice. Response of the second named respondent As is usual in such cases there has been no appearance entered by the first named respondent and in this particular case the second named respondent has not put in a replying affidavit and accordingly the averments set out in the affidavit of Philip Hannon have been uncontroverted. Counsel for the respondent D.P.P. has very properly outlined the consequences of this to the court, as I related above. She accepted that legal aid was not refused on the basis that the applicant did have the means to pay for his own legal representation, nor was this a case involving any issue as to the accused’s right to be informed of his entitlement to apply for legal aid. On the contrary, she pointed out that the first named respondent was entitled to presume that relevant matters touching on the application would be drawn to his attention by counsel. The simple answer to this point is that this expectation was actually fulfilled. Counsel for the applicant did draw attention to and concisely cover the relevant considerations; he dealt with the applicant’s lack of means and corrected the misconception that the applicant was the owner of a motor car. The statement of means handed in made it abundantly clear that the applicant was unemployed and drawing Social Welfare. It was manifest that the applicant was a person capable of driving and in these times it is obvious that the capacity to drive a motor car may be relevant to a person’s employability. Crucially counsel used a time honoured phrase to the effect that the applicant “may be in jeopardy of a custodial sentence if convicted”, to convey, by the use of this formula, the clear message that the applicant was on serious risk of a custodial sentence. The information was implicit in the formulaic phrase used that his client had a previous conviction for such an offence or a similar blemish on his record which would put him in jeopardy of incarceration. There can be no suggestion that counsel on behalf of the applicant failed to draw the pertinent considerations to the attention of the first named respondent. Counsel for the D.P.P. then submitted that the District Court Judge must consider the gravity of the charge and whether there are any exceptional circumstances and in relation to the latter aspect she drew attention to Costigan v. Judge Patrick Brady and The Director of Public Prosecutions (Unreported, High Court, Quirke J., 6 February 2004) a decision of Quirke J. in which he said at p. 7:-
…. This is not a case where an applicant for legal aid, is inarticulate, disadvantaged and unable to discharge the onus of establishing “exceptional circumstances” which may make it essential in the interest of justice that she should be granted legal aid. Ms. Costigan was represented by solicitor and counsel on each occasion when the matter came before Judge Brady. Submissions were made to Judge Brady by counsel on behalf of Ms. Costigan on the issue of means, gravity of offence and “exceptional circumstances”. Judge Brady having heard such submissions refused to grant relief which was sought on behalf of Ms. Costigan.”
Both these cases are clearly distinguishable since in the present case the first named respondent added a criterion not authorised by statute and so never crossed the threshold so as to enter on a proper enquiry in relation to the relevant factors. The situation in the applicant’s case differs greatly from the situation in Rose Costigan’s case in that she was also represented, but in her case submissions were made to the District Court Judge by her counsel on the issues of means, gravity of events and the “exceptional circumstances” and, having heard these submissions he refused to grant the relief which was sought. He had made no pre-emptive decision before embarking on the debate about the issues in respect of means, gravity of offence or exceptional circumstances. I agree with Quirke J. that it is not the function of this court in an application for a judicial review of the order of and procedures adopted by a District Court Judge to consider or revisit the merits of the application made to him. It is the function of this court to consider whether the order made by the District Court Judge was lawful or whether it was made without jurisdiction or in excess of jurisdiction or in breach of the principles of natural and constitutional justice. In Clarke v. District Judge Kirby and The Director of Public Prosecutions [1998] 2 I.L.R.M. 30, the applicant instituted judicial review proceedings claiming that at no time during the hearing in the District Court was he informed of his entitlement to apply for legal aid or legal representation. He submitted that as soon as the judge of the District Court contemplated the imposition of a custodial sentence, he ought to have informed the applicant of these entitlements. He also submitted that before a Community Service Order is made the judge must have formed the opinion that the appropriate sentence would be one of, inter alia, imprisonment. At p. 34 Shanley J. commented on what Denham J. had said in Cahill v Reilly [1994] 3 IR 547, 552 to the effect that when a custodial sentence becomes probable, or likely after conviction, or on a plea of guilty, in a situation where it may not have been likely before, then at that stage of the sentencing the district justice should inform the accused, if he has not before, of his right to be legally represented or his right to apply for legal aid in relation to the sentence. In that case a distinction was made between the possibility and the probability of a custodial sentence being imposed. It suggests that in cases where there was a mere possibility of a custodial sentence being imposed, there was not necessarily an obligation upon the judge hearing the charges to inform the accused of his right to legal representation. However, Shanley J. commented that one only had to refer to the uncontradicted statement in the applicant’s affidavit regarding Judge Kirby’s question, as to whether there was any reason why he should not be sent to prison for fourteen days, to show that there was a real possibility of a prison sentence being imposed if a Community Service Order had not been made. He went on to say at p. 35:-
Counsel also referred me to the approach taken by Feeney J. In Moore v District Judge Brady (Unreported, High Court, Feeney J., 16th November, 2006) in which he spoke of “crystallisation” of a potential prison sentence by saying at p. 7:-
On p. 13 at para. 2.10 of the unreported judgment, Feeney J. said that:-
It is accepted by both parties that there is no automatic entitlement to legal aid simply because a term of imprisonment is a statutory possibility. Counsel for the respondent suggests that in the present case where s. 13(2) of the Road TrafficAct 1994 provides for a term of imprisonment on conviction not exceeding six months means that there is a mere possibility of a custodial sentence being imposed. This might be so in circumstances where the applicant has an unblemished record and is the bread winner for a dependent family. That is not the situation prevailing in this case as counsel for the applicant had quite correctly pointed out that his client was impecunious, being on Social Welfare and unemployed, and it was implicit that he also had a blot on his record by Counsel informing the court that his client “may be in jeopardy of a custodial sentence if convicted”. In fact public opinion has undergone a sea-change in respect of the former tolerance for drunken driving. The media now are more quick to censure people found guilty of this particular offence and there is no longer the former acquiescence and complacency towards people who drink and then choose to drive. The serious obloquy now attached to this offence adds to the situation of gravity for a person at risk on such a charge. I do not accept in the circumstances of this case, where the applicant had a blemish on his previous record, that this was anything other than a charge of a grave second offence carrying the risk of a custodial sentence on conviction. Counsel for the respondent submits that there was no improper fettering of the first named respondent’s discretion in that his statement that he did not give legal aid in driving cases should not be interpreted as a fixed policy when coming to consider an application for legal aid in such cases. She urged that his remarks should be interpreted as a general view that legal aid would not be granted automatically. She suggests that if the first respondent had been operating such a fixed policy as contended for by the applicant there would have been no need for him to embark on a consideration of the matter in the first instance. She submits that the first named respondent did entertain the application for legal aid and actually queried the means of the applicant. She points out that no submissions were made by the applicant’s counsel regarding the consequences of a conviction for his client, nor regarding any exceptional circumstances which might arise. I do not accept these propositions. The simple and clear meaning of the pronouncement that the first named respondent did not give legal aid in driving cases, is that he meant what he said and so had made up his mind to refuse the application for legal aid. A judge is expected (and obliged by law as decided by the Supreme Court) to give reasons for his decision. The learned District Court Judge in this case gave no other reason for his decision. He did explore the means of the applicant to the extent that he said that if the applicant could afford a car, he could afford a solicitor. However this misconception on his part was cleared up by counsel informing the court of his instructions that the applicant did not own the car in question and from the context of the statement of means the court must have been well aware that the applicant, who may be in jeopardy of a custodial sentence if convicted, also was relatively impecunious. Furthermore it was clear that he was facing a grave offence of a nature that there may be technical defences available or even defences on the merits which an experienced lawyer would be able to draw to the court’s attention. The tenor of the proceedings as outlined in the affidavit is that the learned District Court Judge did improperly fetter his discretion at the threshold by asserting and imposing a fourth criterion namely that “being charged in a driving case was a bar to receiving legal aid”. As for the suggestion that a renewed application could be made to the District Court to review again the question of legal aid in view of the seriousness of a charge in respect of drunken driving and the consequences from the point of view of a custodial sentence where the applicant has a previous conviction as indicated by his counsel when he informed the court that his client “may be in jeopardy” of a custodial sentence if convicted, it seems to me that the circumstances in which legal aid are required to be granted had already crystallised. After all, if legal representation is granted and enables the applicant to be acquitted then the question of the opprobrium and a custodial sentence are both negated. In summary, on the basis of this determination there is a finding that the first named respondent improperly fettered his own discretion and predetermined his decision and failed to embark on a proper enquiry as to the applicant’s entitlement to legal aid. The court does not go further than that and does not endeavour to determine whether there was in fact an entitlement to legal aid but has indicated the criteria likely to be applicable. It follows from that determination that when one looks at the reliefs which have been sought in the application herein and in respect of which leave was granted by Peart J. on 13th March, 2006, that:-
(b) The first named respondent gave consideration to an irrelevant factor in the exercise of his statutory duty in relation to the application for legal aid, namely, that he indicated at the threshold of the case that he did not give legal aid in driving cases and gave no other reason in his refusal to assign legal aid. (c) The first named respondent adopted a strict and irrelevant policy which fettered the exercise of his statutory discretion in relation to the application for legal aid. |
