The free legal aid scheme in Ireland for criminal cases provides for legal representation for accused persons who cannot afford legal representation.
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.
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 I.R. case. (In State (Healy) v Donoghue  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  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.
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 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.