Judgment delivered by O’Donnell J. on the 29th day of July 2011.
1. On 23rd September, 2005, the applicant herein was arrested and charged that on 25thJune, 2005, he had stolen property to a value of €287.45 from a Spar shop at Strand Road in Portmarnock, County Dublin, contrary to s4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (hereafter “the Act of 2001”). The offence created by s4 of the Act of 2001 is the offence of theft, defined in the Act as the dishonest appropriation of property without the consent of the owner with the intent of depriving its owner of it. The offence created is indictable, and on conviction on indictment a person may receive a fine or term of imprisonment for a period of up to ten years. Under s53 of the Act of 2001, a person charged with an indictable offence created by the Act, may be tried summarily if first, the District Court considers that it constitutes a minor offence and is fit to be tried summarily; second, if the DPP consents; and third, if the accused on being informed of his or her right to trial by jury, does not object. On summary conviction an accused may be liable to a fine of up to €1,500, or imprisonment for a term not exceeding 12 months or both. The maximum fine has since been increased to €5,000 by s10(3) of the Fines Act 2010.
2. On 4th October, 2005, the applicant appeared before the first named respondent at Swords District Court. A garda sergeant indicated to the Court that the DPP was consenting to summary disposal. As at the time of commencement of these proceedings the other preconditions for summary disposal had not been met in that the District Judge had not yet determined that the offence was a minor offence fit to be tried summarily and the applicant had not been informed of his rights to trial by jury and had not objected to summary trial.
3. On this occasion the applicant was represented pro bono by a solicitor who applied for a legal aid certificate on his behalf. The first named respondent did not decide that issue then, but adjourned it because it was his practice to require a vouched statement of means. It is now common case in these proceedings that the applicant’s means were such that he was not in a position to pay for legal assistance. It is also common case that he had no previous convictions and no previous experience of court. His solicitor also made an application at this hearing for disclosure including, and in particular, disclosure in respect of any closed circuit television recording.
4. On 25th October, 2005, the applicant appeared before the respondent again. Once again the legal aid application was not dealt with, apparently because a vouched statement of means had not been produced. A copy of the CCTV footage was given to the defence together with a witness statement. The provision of detailed witness statements is not itself required by the District Court Rules for cases of summary trial. However, it has been established in a number of cases, and in particular the judgment of this Court in DPP v. Gary Doyle [1994] 2 I.R. 286, that in certain circumstances the requirement of a fair trial guaranteed inter alia by Article 38 of the Constitution, may require that either the outline of the case to be met, or witness statements are provided by the prosecution to the defence in advance of a summary trial. The circumstances in which such disclosure should be made were identified by Denham J., at pp. 301-302 as follows:-
“The procedures necessary to obtain justice will vary as the cases vary. Many very minor cases may not require that statements be furnished. As O’Higgins C.J. stated in State (Healy) v. Donoghue [1976] I.R. 325, at p. 350:-
“There are thousands of trivial charges prosecuted in District Courts throughout the State every day. In respect of all these there must be fairness and fair procedures, but there may be other cases in which more is required and where justice may be a more exacting task-master. The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him.”
The more serious cases and the more complex cases, may require copies of statements and other relevant documents be furnished in advance of the trial, to inform the accused of the accusation so that he might prepare his defence.”
It follows that for the purposes of disclosure and the provision of an outline of the case to be met at least, this case was being treated as one of the more serious or more complex cases.
5. On 8th November, 2005, the applicant made a further appearance at Swords District Court, again before the respondent. On this occasion he was represented by solicitor and counsel, again acting pro bono. An issue arose in relation to the CCTV footage provided. The applicant’s lawyers complained that the format in which the CCTV footage had been made available meant that it could only be viewed on CCTV equipment and could not be viewed on a standard video player. After some argument the first named respondent invited the prosecutor, without conceding any precedent, to provide the footage in a fashion which could be viewed by the applicant and his lawyers.
6. On the issue of legal aid, the respondent, having received a vouched application, inquired of the prosecuting garda (described as the Court presenter) whether the applicant was “at risk”. It was clarified on behalf of the applicant that by this phrase the respondent meant to ascertain whether, if convicted, the applicant would be at risk of a custodial sentence. The garda replied that the applicant was not at risk. There was then further argument as to the significance of a possible conviction for the applicant. The respondent then retired to consider the issue over the lunch break. Thereafter, he returned to Court and asked the presenting garda to outline the facts of the case. Those facts were that it was alleged that the applicant had been at the Spar premises, and was noticed to be acting suspiciously. Two young women were also there. A manager saw the women putting items into their bags. When she confronted one of them the applicant came over and abused her. It was alleged that the woman struggled to free herself from the manager’s grasp with the assistance of the applicant, and in doing so deliberately scratched the manager’s face including attempting to scratch her eye.
7. The respondent then announced his decision. He said he was refusing legal aid. He said he had considered the case of State (Healy) v. Donoghue [1976] I.R. 325 and he considered the offence was a minor one with no risk of a custodial sentence. Such a sentence would, he considered, be a very harsh outcome of any trial of the matter. There were no exceptional circumstances which should lead him to grant legal aid. However, if there was an intervening offence which changed the risk an application for legal aid should be brought immediately. This reference makes clear the respondent’s thinking. An intervening offence (and conviction) would make more likely a custodial sentence on a conviction on this charge.
8. It is clear that the first named respondent was addressing himself closely to the words of the statute providing for legal aid. Section 2 of the Criminal Justice (Legal Aid) Act 1962 (hereafter “the Act of 1962”) as substituted by s5(6) of the Criminal Justice (Miscellaneous Provisions) Act 1997 reads as follows:-
“If it appears to the District Court before which a person is charged with an offence or an alternative court within the meaning of section 5 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, before which a person is appearing –
the said District Court, or the alternative court, as may be appropriate, shall on application being made to it in that behalf, grant a certificate, in respect of him, for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the said District Court or the alterative Court as the case may be, thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.”
9. In its material provisions, the section has remained unchanged since 1962. It seems clear that the first named respondent took the view that the person whose means were insufficient to enable him to obtain legal aid could receive a legal aid certificate by reason of the gravity of the offence or exceptional circumstances, either of which would demonstrate that it was essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before the Court. It also seems clear that the first named respondent considered that the question of the gravity of the offence was to be determined by considering whether a conviction in the District Court would result in a possible sentence of imprisonment. This was encapsulated in a short hand reference in the inquiry to the garda as to whether the applicant was “at risk”, but is also apparent by the significance the respondent attached to an intervening offence.
10. These judicial review proceedings were then commenced seeking an order of certiorari quashing the District Judge’s refusal to grant legal aid. During the proceedings in the High Court it became clear that the issue of the applicant’s election had not been dealt with in the District Court. The High Court judge observed that the District Court had indicated that it was willing to review the question of legal aid. The High Court judge considered that this was the appropriate way to deal with the issue. Accordingly he refused to quash the respondent’s order but remitted the matter to the District Court to allow the applicant to renew an application for legal aid and to argue if it was considered appropriate that the right to elect was itself an exceptional circumstance justifying the grant of legal aid. Against that order, the applicant has now appealed.
11. The first named respondent was properly careful to ensure that the applicant’s means were insufficient to allow him to retain his own legal assistance. Legal aid in an appropriate case is now recognised as essential in a civilised society but it also imposes substantial burdens on the State and it is entirely appropriate that the means of an applicant for legal aid should be established and verified. It is also the case that the landmark decision in State (Healy) v. Donoghue [1976] I.R. 325 has established that legal aid is not required in every case in the District Court, and it would be undesirable if it were granted routinely for any matter no matter how trivial. Accordingly, it is sensible to seek to ensure that legal aid is granted where appropriate and is not abused. However, in seeking to apply a restrictive test, reduced almost to a rule of thumb encapsulated in the two words “at risk” the respondent was, in my view, in error.
12. While it will be necessary to analyse the statutory and constitutional provisions in some detail later in this judgment, it does seem to me that the very fact of the proceedings in the District Court ought to have led the respondent to conclude that even within the somewhat restricted language of the Act of 1962, this was indeed a case of sufficient gravity to justify the grant of legal aid. There is something more than odd in a court deciding the entitlement to legal aid by inviting a member of the Garda Síochána to consider if an accused is at risk that another court will or may impose a custodial sentence on the accused if convicted. This indirect and coded inquiry is adopted no doubt to avoid the Court becoming directly apprised of any previous convictions the accused may have, but in cases where the outcome of this exchange is a refusal of legal, aid the process may appear unsatisfactory. Furthermore, the result reached by the respondent was more than a little anomalous. If, for example, there was a co-accused who had elected for trial on indictment of the same offence then there is no question but that such a person would have been entitled to legal aid. Similarly, if another co-accused had previous convictions – something which it is undesirable should be discussed in advance of the trial in any event – then again, on the approach of the District Court, it would appear that he or she would have received legal aid in this case. But it appears that the fact that this accused had no previous convictions (and indeed no court experience) led to the conclusion that he should face a trial of this charge of theft by himself. In addition, although the respondent took a strict approach to the interpretation of the Act of 1962, he nevertheless expressly reserved the prospect of a further application for legal aid, even though by s2(2) of the Act of 1962 a decision of the District Court in relation to an application under s2(1) of the Act of 1962, as amended, shall be final and shall not be appealable. Nor is it easy to reconcile the apparent conclusion that the case was sufficiently important to require, or permit, disclosure (something the unrepresented defendant would be unlikely to know about), but insufficiently important to require legal aid. I appreciate the desirability of dealing with these issues expeditiously, and as long as the system is administered with flexibility and with a significant margin of error, there might be few causes for complaint in practice. But where, as here, the regime is applied with some strictness and results in a refusal of legal aid, the flaws in the system become more apparent.
13. It may well be that to a long serving District Judge, a busy practitioner or an experienced garda, that this case could be considered a routine District Court matter. But for a person who has never appeared in court before and who faces the possibility of conviction for theft an offence of dishonesty with all that that entails for prospects of employment, I do not think it could be considered anything other than serious. Indeed it is of some significance that Garda Curtin could only observe that “while not trivial the charge facing the Applicant is by no means at the more serious end of the scale”. (Emphasis added)
14. It is worth considering what would be involved in a professional defence of the case. It would be necessary to know that the offence itself was indictable but could be tried in the District Court but only with the agreement of the accused. It would be necessary therefore to form some view as to which court would be the most desirable from this accused’s point of view. If the matter was to proceed in the District Court it would be also necessary to know that an application could be made for disclosure which might inform the accused of the case which he had to meet. It might also be necessary to know the extensive law that has grown up in recent years about the significance of CCTV evidence, and more particularly, its absence. Careful consideration would have to be paid, to both the legal and factual basis upon which it could be said that the actions of the two women in the Spar shop could be attributed to the applicant. In addition to all of these steps a lawyer would have to consider what witnesses would be available for the defence. Leaving aside the statutory formula for one moment , if the sole question for a court was whether anyone would think this was the sort of case that could be fairly defended by a litigant on their own whilst suffering perhaps from that “fumbling incompetence that may occur when an accused is precipitated into the public glare and alien complexity of courtroom procedures, and is confronted with the might of a prosecution backed by the State” (State (Healy) v. Donoghue [1976] I.R. 325, 354), then there could in my view, be only one correct answer.
15. It is apparent that the first named respondent took a simple if strict view both of the language of the Act of 1962 (as amended), and of the landmark decision in State (Healy) v. Donoghue. It was, he considered, necessary to establish the gravity of the offence and that in turn was determined by the sole question as to whether or not the accused was adjudged to be “at risk”. It is quite true to say that a number of the more well know passages in the judgment in State (Healy) v. Donoghue refer to the injustice created by a person whose liberty was at risk of facing a prosecution without the assistance of legal aid, and it is also clear that that case establishes the fact that not all criminal cases in the District Court require that legal aid. However, it is flawed logic to seek to conclude that because a person who was at risk of imprisonment must receive legal aid, it necessarily follows that absent a risk of imprisonment (the assessment of which is always somewhat speculative) that legal aid should not be provided. More importantly such a conclusion is in my view inconsistent with the reasoning of the Court in State (Healy) v. Donoghue.
