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February 2012 Archives

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The free legal aid scheme in Ireland for criminal cases provides for legal representation for accused persons who cannot afford legal representation.

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There are a number of conditions to be met before you will be able to access legal aid from the scheme.

Essentially two conditions must be present:

1. The accused person does not have the means to pay for a criminal defence lawyer themselves and
2. It is essential in the interests of justice, because of the seriousness of the charge or circumstances of the alleged crime, that the accused person be legally represented.

This will often see the Judge enquiring from the prosecuting Garda whether the accused is “at risk” of a custodial sentence. If not then the Judge may refuse an application for legal aid.

However a recent Supreme Court decision has cast some doubt on a rigid adherence to this criterion..

This Supreme Court decision of July, 2011, in the case of David Joyce (appellant) and Judge Patrick Brady and the Director of Public Prosecutions (respondents), is an interesting one as it appears to consider that the well accepted criterion of considering whether the accused person is “at risk” of a custodial sentence falls short of the constitutional guarantee in Article 38 of a “trial in due course of law” and the accused’s right to fair procedures guaranteed by Article 40.3.

Facts of case

The appellant in this case was charged with theft of goods to the value of €284.45 (section 4 Criminal Justice (Theft and Fraud Offences) Act2001 from a Spar shop in Portmarnock. This offence was to be prosecuted summarily by the DPP in the District Court according to the Garda Sergeant when the case first came before Swords District Court on 4th October, 2005.

However the Judge had not yet determined that the offence was a minor offence and Mr. Joyce was not advised of his right to be tried by jury, his right of election, nor had he objected to a summary trial.

Mr. Joyce’s solicitor applied for a legal aid certificate but Judge Brady adjourned his decision in respect of this application pending receipt of a statement of means. Mr.Joyce’s means were not such as to be able to afford legal representation and had no previous convictions.

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On the next occasion before the District Court no statement of means was furnished and the Judge did not decide on the application for a legal aid certificate. However Mr. Joyce was given a copy of the CCTV footage and the witness statement which would indicate that this case was being treated as one of the more serious or complex cases referred to in State (Healy) v Donoghue[1976] I.R. case. (In State (Healy) v Donoghue [1976] I.R. O’Higgins C.J. stated that “many very minor cases may not require that statements be furnished”.

The case came before the District Court next in November, 2005 and Mr. Joyce’s solicitor and counsel, acting pro bono still, raised the problem that they had in relation to viewing the CCTV footage on a standard video player and the issue of legal aid. At this point the Judge asked the Court presenter whether Mr. Joyce was “at risk” with the Judge clarifying for Mr. Joyce that what he meant by this question was whether he was at risk of a custodial sentence.

The Garda replied in the negative.

The Judge then considered the application for legal aid over lunch and refused the application having heard the facts of the case. Judge Brady said he had considered State (Healy) v Donoghue [1976] and decided that this case was a minor one and there was no risk of a custodial sentence.

However he did say that if there was an intervening offence which changed the risk of a custodial sentence then a fresh application for legal aid should be brought on behalf of Mr. Joyce.

Judicial review proceedings were then commenced seeking a certiorari order quashing the District Court Judge’s decision. The High Court noted that Mr. Joyce’s right to election for a trial by jury was not dealt with in the District Court.

free-legal-aid-ireland

The High Court then remitted the case back to the District Court to renew the application for legal aid and to allow his legal team to argue that the omission of Mr. Joyce’s right to election was an “exceptional circumstance” justifying the grant of legal aid.

This decision of the High Court was then appealed to the Supreme Court which decided that applying the rule of thumb as to whether the applicant was “at risk” of a custodial sentence in making it’s decision was too restrictive and in error.

The Supreme Court noted that even though the case was considered sufficiently important to require disclosure it was not considered sufficiently important to require legal aid and further noted 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)

The Supreme Court went on to consider what would have been required to ensure a professional defence of the case and found that:
1. you would need to know that even though the offence was indictable that it could be tried in the District Court but only with the agreement of the accused;
2. you would need to form a professional view as to the best venue from the accused’s point of view;
3. you would need to know that you could apply for disclosure
4. you would need to be aware of the case law in relation to cctv footage as evidence
5. and many other issues surrounding the facts of the case.

Critically the Supreme Court held that

“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.”

It further held that

“There is something fundamentally incongruous in the contention that a trial for theft would be unfair if the accused was convicted (perhaps having pleaded guilty) and sent to jail for even a day, but that a trial of the selfsame offence including the same facts and issue of law would become fair if the accused were only fined or required to do community service if convicted, even though such conviction would brand him a thief.”

The Supreme Court went on to consider in greater detail the seminal case in this regard, State (Healy) v Donoghue[1976] and found that

“It is quite clear, however, that the Court did not find that legal aid was only required when a person was imprisoned on conviction, or even when the more nebulous concept of facing a risk of imprisonment was found to be satisfied.”

It also found that

“It is clear therefore, that the Act of 1962, does not merely confer a statutory right to legal aid, it is the “practical implementation of a constitutional guarantee” and must be interpreted accordingly.”

Finally, in it’s decision in the case at hand, David Joyce and Judge Patrick Brady and the Director of Public Prosecutions, it critically held that

“The factors in this case which appear to have led to the conclusion that the accused was not “at risk” and therefore told against the application for legal aid – the absence of previous convictions and the accused’s lack of familiarity with a courtroom – were factors which in my view should have led to the opposite conclusion.

The impact on a young man of a first conviction for a crime of dishonesty is considerable. His ability to defend himself effectively was doubtful to put it at its lowest. Having regard to what was involved, I consider that the facts of this case satisfied the statutory test when taken alone. This charge was of sufficient gravity to merit the grant of legal aid.

However, when the statutory language is approached, as it must be, in light of the requirements of the Constitution, of which the words of the statute are a somewhat imperfect reflection, then the conclusion is to my mind inescapable. While fully appreciating the motives of the learned District Judge, and recognising the demands imposed by the requirement to deal with a considerable volume of cases under significant pressure of time, I have nevertheless come to the conclusion that the decision to refuse legal aid in this case was wrong and therefore unlawful, and must be quashed. Accordingly, I would allow the appeal.”

Should you be charged with a criminal offence you should contact a solicitor. We at solicitors Dublin are on the legal aid panel for criminal matters in Dublin.

By Terry Gorry Google+
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Well meaning friends can advise you that you do not need a solicitor when charged with particular offences. However before you decide that you don’t need legal representation you should take a look at the video below which looks at situations where you may be successful in an application for the Probation Act rather than having a criminal conviction imposed on you.

Being convicted can carry consequences far beyond a small fine on the day; for example if you ever decide that you would like to work abroad your conviction may well go against you.

By Terry Gorry Google+
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Solicitors Dublin assist many US attorneys and litigants who need to have service of legal documents effected on defendants in Ireland.

The best and safest way to be sure of good service is to have an Irish solicitor serve the defendant in person.

process-servers-dublin

Whilst it is the case that the Hague Convention provides for service by a number of internationally agreed methods such as

  • international mail
  • sending the request in the appropriate Hague Convention Request for Service form directly to the Central Authority in Ireland (the Central Office of the High Court)
  • instructing an Irish solicitor to handle service in person

only the last option above offers sufficient protection in our experience.

As there is no bilateral agreement between the US and Ireland in respect of recognition in Ireland of judgments obtained in the US our experience has been that the Courts in both the US and Ireland may reject service if challenged by the defendant.

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The option of sending your judicial papers together with the Hague Convention Request for Service form is, in theory, a better approach the reality of the situation on the ground is that there are only a limited number of people in Central Office and suitable people around the country to deal with your request.

This poses two problems:

  1. service, if effected, may be slow due to the growing workload
  2. if the defendant proves elusive the papers may be returned unserved.

The best and safest approach to take is to instruct a solicitor in Dublin or Ireland to carry out the task for you. The advantages of this method of service are

  • local knowledge
  • speed
  • familiarity with the procedure and the requirements of Central Office.

How to Obtain a Certificate of Service Under the Hague Convention Procedure

Solicitors Dublin can offer a fixed fee service so you know what your costs will be at the outset and you can be sure of a professional service.

You will need to send two copies of

  1. the Hague Convention Request for Service Form with the appropriate request for service wording and
  2. the legal papers to be served.

We then check over the papers and see that they are in order and let you know if anything needs to be amended. We will bring the papers and request form to the Central Office of the High Court who will then check that the papers are in order.

Assuming that they are in order either the Master or Deputy Master of the High Court that service is to be effected by the principal solicitor of Solicitors Dublin or their agent for that purpose.

We will then appoint an agent to serve the defendant in person or effect service ourselves. Once service is effected we prepare an Affidavit of Service and have this sworn and returned to Central Office together with one copy of the legal papers, the Return Copy.

The Master or Deputy Master of the High Court will then assess that service was effected in the terms stipulated and if so will then certify that service has been carried out in conformance with the Hague Convention in respect of service of documents in Civil Matters.

Solicitors Dublin then return the Certificate of Service by Fedex or DHL to the client in the United States and is it this certificate that will be your proof of service when you go back into Federal Court in the U.S.

Should you need any assistance with any of this procedure or if you have any queries or need service carried out in Ireland do not hesitate to use the contact form on this site or call and we will revert within 12 hours guaranteed.

By Terry Gorry Google+
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Seeking guardianship by the father of a child in a non-marital situation is a common application before the District Court in Dolphin House, Dublin 2.

guardianship-family-law

The reason is simple: under the existing law the father of a child in a non-marital relationship is not automatically a guardian of the child, although the mother is.

The father of the child is only automatically a guardian where

  1. He was married to the mother at the time of the child’s birth or
  2. If the parties marry after the birth of the child.

What does guardianship mean?

Guardianship is concerned with the overall care of the child in a global sense and will involve having a say as to

  • Permission of the child to marry
  • Passport forms
  • The general upbringing of the child
  • The child’s medical care
  • The child’s education
  • Acting on behalf of the child in legal proceedings
  • Custody of the child
  • Any property of the child until the child reaches the age of 18.

The natural father, thanks to the Status of Children Act 1987 (section 12), can now apply to the District Court under section 6A of the Guardianship of Infants act 1964 to be appointed a guardian of the child by the Court.

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The first and paramount consideration of the Court in considering such an application will be the welfare of the child (sect. 3 Guardianship of Infants Act 1964).

Guardianship by consent

However where the mother of the child consents there is a procedure under Section 2(4) of the Guardianship of Infants act 1964 where both parties can swear a statutory declaration agreeing for the father to become a joint guardian.

This will not involve a court appearance and can be carried out by the parties themselves by filling out the appropriate form under the Act and can be done regardless of the living arrangements of the parties-that is, they do not have to be living together. (If the father is not registered on the birth certificate then it is likely that the declaration will be rejected by the Registrar pending his registration as father on the register maintained under the Civil Registration Act 2004.

However despite the relative ease with which you can carry out this declaration procedure you should always seek legal advice before signing one.

If you have any questions arising from the above do not hesitate to contact us. You might also be interested in family law solicitors Dublin.

By Terry Gorry Google+

New rules, the District Court (Enforcement of Court Orders) Rules 2010, came into effect in April, 2010 and deal with the enforcement of Court orders and Judgments.

district-court-debt-collection

Assuming you have obtained a judgment against a debtor in the District Court or you have had a judgment or Court order given against you for a debt- what happens next?

How it the judgment enforced?

District Court (Enforcement of Court Orders) Rules 2010

The solicitor for the creditor will issue a summons for the attendance of the debtor and if served by hand must be served at least 14 days before the Court date; if served by registered post it must be served 21 days before the hearing date.

The summons will have attached to it a Statement of Means which must be filled out by the debtor and lodged in the District Court office at least 1 week before hearing.

The solicitor for the creditor will need to lodge

1. The original Decree

2. An affidavit of residency confirming that the debtor lives where the summons has been served

3. A certificate of amount due.

It is up to the Judge then to decide how much the debtor should be paying based on the statement of means and will make an order called an Instalment Order requiring the debtor to pay a fixed amount monthly or weekly.

This instalment order must then be served on the debtor and will remain in force for 12 years from the date that Judgment was granted.

If the instalment order is not complied with the creditor can issue a Summons for Failure to Comply with An Instalment order.

This next appearance in Court by the Debtor may lead the Judge to granting a Committal order committing the debtor to prison.

However since the Caroline McCann/Monaghan Credit Union case it is much more difficult to commit a debtor to prison and the Court must be satisfied that the Debtor will not pay as opposed to being unable to pay.

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Judgment mortgage

You can, as the creditor, also register a Judgment mortgage on the debtor’s property, if he is the registered owner. The power of sale of the property though on foot of a judgment mortgage can only be exercised through the courts.

Should you need any assistance arising from this article and need a solicitor feel free to contact Solicitors Dublin.

Here is a link to the legislation: District Court (Enforcement of Court Orders) Rules, 2010

By Terry Gorry Google+

The Status of Children Act, 1987 makes provision for declarations of parentage.

This will involve an application to the Circuit Court that a person is his/her mother or father, even where the parent is dead.

declarations-of-parentage

The Status of Children Act, 1987 also provides for blood tests including DNA testing, where parentage is in dispute, to be carried out. The Court can make this order of it’s own volition or a party to the legal proceedings can apply to the Court for such an order. These tests are not funded by the public health system nor the Courts so the cost of the tests will have to be paid by one or both parties or whoever the Court directs to bear the cost.

Presumptions of paternity

The Status of Children Act, 1987 provides a presumption of paternity where a couple is married and presumes that the husband is the father of the child. Like all legal presumptions, this can be rebutted by evidence on the balance of probabilities.

status of children act

Unmarried parents

In an unmarried parents situation there is no presumption in law as to the father of the child, unless the man has been named on the birth certificate as the father.

Fathers who acknowledge paternity can have their names added to the birth certificate. If a father is not named on the birth certificate then he may have to prove paternity to the Court if he wishes to apply for access, guardianship or custody.

The Status of Children Act, 1987 amends the Births and Deaths Registration (Ireland) Act, 1880 to allow the insertion of the natural father’s name on the child’s birth certificate

  • If both parents agree or
  • If there is a Court order naming him as the father.

However where a child is born to a mother who is married, and the husband is not the father, the required statutory declaration will be different as it will require a statement from the husband that he is not the father or a statement from the mother that she had been living apart from the husband for ten months prior to the birth or a Court order naming the father.

If you are looking for solicitors in Dublin please use the contact form on this site.

By Terry Gorry Google+

In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
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