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A.G. v. McDonnell [2000] IEHC 38 (29th March, 2000)

THE HIGH COURT

JUDICIAL REVIEW

1998 No. 464 JR

BETWEEN

THE ATTORNEY GENERAL

APPLICANT

AND

JUDGE JAMES PAUL McDONNELL

RESPONDENT

JUDGMENT of Kearns J. delivered on the 29th day of March, 2000.

1. On the 4th day of December, 1998 the President of the High Court gave leave to the Applicant to apply by way of application for Judicial Review for an Order of Certiorari to quash the decision of the Respondent made on the 4th day of December, 1998 to issue a citation for contempt of Court against the Applicant in extradition proceedings between the Attorney General and James Byrne.

2. By the same Order, the President directed that the Applicant do serve a Notice of Motion returnable on the 14th December, 1998 on the Chief Clerk, Dublin Metropolitan District Court on behalf of the Respondent. This Notice of Motion sought the various reliefs set out in paragraphs 1 - 4 of the statement required to ground application for Judicial Review on the grounds set out therein at paragraph E(1)(viii) which was:-

"The decision of the Respondent to cite the Applicant for contempt was one which flies in the face of reason and common sense and one which no reasonable District Court judge could make."

3. The incident or background giving rise to the citation for contempt was an ongoing dispute between the Respondent and the Office of the Attorney General in relation to the applicability of the Attorney General's scheme for legal representation in respect of extradition cases in the District Court.

4. The affidavit of Edmund Kent sworn on behalf of the Respondent herein on the 16th March, 1999 sets out the concerns of the Respondent at the material time in relation to the scheme.

5. The most up to date version of the scheme, being that which was available at all material times hereto to the Respondent, was published on the 21st April, 1998, the provisions of which are as follows:-

"1. The Scheme applies to the following forms of litigation (which are not covered by civil or criminal legal aid):

(i) Habeas Corpus applications

(ii) Bail motions

(iii) Such Judicial Reviews as consist of or include Certiorari, Mandamus or Prohibition

(iv) Applications under Section 50 of the Extradition Act, 1965

2. The purpose of the Scheme is to provide legal representation for persons who need it but cannot afford it. It is not an alternative to costs. Accordingly, a person wishing to obtain from the Court a recommendation to the Attorney General that the Scheme be applied must make his application (personally or through his lawyer) at the commencement of the proceedings.

3. The Applicant must satisfy the Court that he or she is not in a position to retain a solicitor (or, where appropriate, Counsel) unless he or she receives the benefit of the Scheme. To this end the Applicant must provide such information about his means as the Court deems appropriate.

4. The Court must be satisfied that the case warrants the assignment of Counsel and/or Solicitor.

5. If the Court considers that the complexity or importance of the case requires that, the recommendation for Counsel may also include one Senior Counsel.

6. The costs payable to the Solicitor, and the fees payable to Counsel under the Scheme are those which would be payable in a case governed by the Criminal Justice (Legal Aid) Regulations current for the time being, applied mutatis mutandis.

7. Where there is more than one Applicant, but only matter is at issue before the Court, the Solicitor and Counsel assigned shall represent all the Applicants.

Prior to publication herein, the Attorney General's Scheme was published inter alia to the Registrars of the High Court and of the Supreme Court, to the Law Library and in the April, 1992 edition of the Incorporated Law Society Gazette.

The following important points about the Scheme should be noted:-

(a) The Scheme is an administrative, non-statutory arrangement whereby payments are made out of the vote of the Office in respect of certain legal costs and the types of litigation referred to in Part 1 of the Scheme in which, for the most part, the State is a party (although the State need not be a party to proceedings which are eligible for the Attorney General's Scheme).

(b) The Scheme only applies to proceedings of the type referred to in paragraph 1 of the Scheme conducted in the High Court and the Supreme Court and (in relation to extradition cases) the District Court. Where the proceedings are of a type which fall outside the scope of the Scheme, as in for example Family Law cases, the scheme cannot be applied to those proceedings because public funds may only be applied for the purpose for which they have been provided by the Oireachtas. It is not within the discretion of the Attorney General to apply public funds to other purposes; without limiting the generality of the foregoing, the Scheme does not apply to any form of litigation which is covered by civil or criminal legal aid."

6. As Mr Kent's affidavit makes clear, the Respondent was concerned and it was unclear to him whether the scope of the Scheme could be expanded by an undertaking given by the Applicant to cover costs which were outside the Scheme as published.

7. On the 27th November, 1998, the case of Attorney General v. James Byrne came before the Respondent. These were proceedings in which Orders were sought by the Applicant pursuant to the Extradition Act, 1965 for the delivery of Mr Byrne to England. When the case commenced that morning, an application was made on behalf of Mr Byrne for representation under the Scheme and the Respondent expressed the view that the Scheme did not apply to the District Court. The Solicitor representing the Applicant expressed the view that the Scheme did apply, but the Respondent was reluctant to accept this undertaking or assurance and the case was adjourned to 4.00 p.m. that afternoon at the request of the Applicant's Solicitor.

8. It is pertinent to point out at this point that some days earlier, on the 25th November, 1998, the Respondent had, in another extradition case, refused an application for extradition and ordered the release of a prisoner, William O'Keeffe, on the grounds that he was not satisfied that the Attorney General's Scheme applied and that therefore his constitutional right to legal representation could not be guaranteed. He had made this Order on the 25th November, 1998 notwithstanding assurances from the Solicitor for the Attorney General that the Scheme did, in fact, apply.

9. Mr Kent's affidavit indicates that the Respondent's stated reason for refusing to recommend the payment of Mr O'Keeffe's legal costs under the Scheme was "his apprehension that any such order would be investigated by the Comptroller and Auditor General".

10. Returning the Mr Byrne's case, the Applicant herein was represented by Counsel when the case resumed on the afternoon of the 25th November, 1998. Counsel expressed the view that the Scheme did apply to extradition matters in the District Court. The Respondent enquired of Counsel whether he was giving an undertaking in this particular case to pay the costs and fees of Mr Byrne. The Respondent was advised that there would be an undertaking to do so "in accordance with the Scheme".

11. The Respondent was not satisfied with this form of assurance or undertaking and made a ruling in the following terms:-

"Ruling.

1. In the particular circumstances of this case, the Court is prepared to accept the personal assurance of the Attorney General, as conveyed to this Court by its Counsel, that the Attorney General's Scheme does apply to these extradition proceedings in this Court, and the Attorney General undertakes to discharge the appropriate fees to Solicitor and Counsel in accordance with this Scheme.

2. I wish to make it clear that, as far as I am concerned, the Attorney General's assurance and undertaking apply to this case only. In my view, it is not appropriate that the Attorney General should feel obliged to offer such assurance and undertaking in all extradition proceedings to which he is the Applicant. The Attorney General should use this opportunity to clarify the Scheme in such a fashion as to render it proof from any such challenge in future, or from any suggestion that he is involved in the determination of the fees payable to the lawyers acting for the Respondent in extradition proceedings.

3. I am not making any recommendation as to the payment of fees, but I note the undertaking of the Attorney General to discharge such fees.

4. I have entered these remarks on the record of the Court for future reference and for the assistance of my colleagues."

12. The case was adjourned for one further week at the request of Counsel for the Applicant.

13. In the intervening period, Mr James Hamilton, then Director General of the Office of the Attorney General wrote to the President of the District Court on the 2nd December, 1998 the letter which gives rise to the present controversy.

14. The letter stated:-

"Dear President

I am directed by the Attorney General to write to you concerning the question as to whether the Attorney General's Scheme is properly applicable in the District Court in extradition matters. This matter has arisen in recent days in two extradition cases before your colleague Judge James Paul McDonnell. I understand that the judge took the view that because of an earlier correspondence from this office to the District Court Registrar and the published terms of the Attorney General's Scheme and submissions made before him by Counsel on an earlier occasion, that he was not free to make any recommendation in the extradition cases before him although Counsel representing the interest of the person to whom the warrants related applied for such a recommendation and the representatives of the Chief State Solicitor confirmed, on instructions from the Attorney General that the Scheme applied in such cases.

You will be aware of the terms of the Scheme as most recently published in April, 1992 (a copy of which is attached for your information). As you will note this indicates that the Scheme is applicable in applications under Section 50 of the Extradition Act, 1965. Section 50 applications only arise in the High Court or in the Supreme Court on appeal. However, as you may be aware, this limited view of the application of the Scheme to extradition cases has not been taken in practice and recommendations made by District Court judges over the years in relation to extradition matters within their jurisdiction has been implemented provided the other conditions of the Scheme are complied with. Because of this ambiguity the explanatory notes to the A.G.'s Scheme in the "Guide to the Functions and Records of the Office of the Attorney General" which was recently published under Sections 15 and 16 of the Freedom of Information Act, 1997 explains that -

'The Scheme only applies to proceedings of the type referred to in paragraph 1 of the Scheme conducted in the High Court and the Supreme Court and (in relation to extradition cases) in the District Court'

A copy of that guide is enclosed for your information and the reference to the Attorney General's Scheme is to be found on pages 11 and 12.

I would be very much obliged if you would inform the judges of the District Court who deal with extradition matters that the Attorney General's Scheme does apply to extradition matters in that Court."

15. At par 15 of his affidavit, Mr Kent states that the Respondent first learned of this letter when its existence was brought to his attention by a colleague on the afternoon preceding the further hearing of the matter. He actually received his copy of the letter on the morning of the hearing.

16. The Respondent took the view that the letter constituted a contempt because it:-

(a) Expressed a view on an issue which was pending before him in legal proceedings

(b) Sought to undermine the view of the law which the Respondent himself had expressed in connection with the proceedings

17. While the hearing in the extradition proceedings had been adjourned to 4.00 p.m. on the 4th December, the Applicant was notified by the Clerk of the District Court on the afternoon of the 3rd December that the Respondent intended listing the matter for

10.30 a.m. on the 4th December, which he did. On the same afternoon, the 3rd December, Counsel on behalf of James Byrne applied ex parte for habeas corpus in the High Court and those separate proceedings, which traverse almost entirely identical territory to the instant case, were heard by Kelly J. who delivered his judgment in relation to the habeas corpus application on the 21st December, 1998.

18. When he sat at 10.30 a.m. on 4th December, the Respondent directed that the contempt hearing would take place that very afternoon in his 2.00 p.m. list, the Respondent indicating that he was bound to deal with the matter immediately by reason of the provisions of the Petty Session (Ireland) Act, 1851. In the interim, however, the instant application came before the President of the High Court.

19. Mr Kent's affidavit discloses that the Respondent learned of the Applicant's letter of 2nd December, 1998 "with some shock". He believes that the letter should have been furnished to him for his comments and observations prior to being furnished to his colleagues. He further adopted the view that the letter represented a deliberate attempt to undermine the stance which he had adopted in the eyes of his colleagues and of the President of the Court.

20. The citation includes the following paragraphs:-

"4. In that letter, the Attorney General purports to comment on the issues that have arisen in the present proceedings, in such a manner that leaves me with no option but to cite the Attorney General for contempt of this Court in respect of the extradition proceedings currently pending before me. Accordingly, the letter from the Attorney General must enter the public domain. I propose to read it to the Court, and to direct my Registrar to furnish a copy of it to Counsel for the Respondent.

5. The conduct of the Attorney General requires that the following questions be addressed by the parties to these proceedings:-

1. On what grounds did the Attorney General - who is the constitutional and legal advisor to the Government - purport to offer unsolicited (sic) advice to the President and judges of the District Court, about the conduct of extradition proceedings in the District Court in circumstances where the Attorney General is a necessary party to those proceedings?

2. On what grounds did the Attorney General purport to comment the President of my Court on my conduct of an extradition case of which I had seisin, and where his comments touch on an issue which is sub judice, and in the resolution of which he is an interested party?

3. Whether the comments of the Attorney General were intended to exercise pressure on myself in the instant proceedings, or on my colleagues in other extradition proceedings?

4. In the circumstances whether the conduct of the Attorney General constitutes contempt of the District Court?

5. If that be so, what steps, if any, should be taken?"

21. The Respondent concluded by directing that the citation for criminal contempt should be in the following form:-

"That the Attorney General did cause to be published, on the 4th day of December, 1998 at the Metropolitan District Courthouse at Chancery Street in the City of Dublin, to Judge James Paul McDonnell, a letter dated 2nd day of December, 1998 and written by the Director General of his office at his behest to the President of the District Court, which said letter touched on the integrity of the extradition proceedings entitled the Attorney General, Applicant v. James Joseph Byrne also known at Desmond Byrne also known as Shay Byrne, Respondent, pending in the District Court before the said judge, to which extradition proceedings the Attorney General is a party."

22. It is clear from a perusal of Mr Kent's affidavit that the Respondent was not disposed to accept assurances given to him by Counsel on behalf of the Applicant. Mr Kent's affidavit suggests to me that the concerns of the Respondent went deeper and focussed on the competence or capacity of the Attorney General to legitimately provide any assurance that the Scheme would extend to extradition cases in the District Court. It seems he was apprehensive that such behaviour by the Attorney General might result in an investigation by the Comptroller and Auditor General.

23. The full implications and consequences of the Attorney General's Scheme were teased out in great detail before my colleague, Mr Justice Kelly, to whose judgment dated 21st December, 1998 I have already alluded. He deals with the Attorney General's Scheme and the relationship between the Attorney General and the Courts at pp 6 - 10 of his judgment, and I agree both with his analysis and conclusions arrived at.

24. Mr Clarke on behalf of the Respondent argues that a District Judge is very properly concerned with the issue of legal representation in an extradition case. He has a role in relation to the Attorney General's Scheme in that he is being asked to certify for representation under the Scheme. If he has a concern, then he is entitled to enquire further into it. It would, of course, be open to him to refuse to embark upon any hearing unless he were satisfied, but that does not preclude from first enquiring into the position and raising an issue for resolution.

25. To the extent that that issue was not resolved to his satisfaction, Mr Clarke urges that there was justiciable issue before the Court at the time when Mr Hamilton wrote his letter on 2nd December, 1998. He accepts, as indeed he must, that the letter could only constitute a basis for contempt if there was in the first instance a justiciable issue in relation to the Scheme.

26. Mr Comyn on behalf of the Applicant contends:-

(a) There is no jurisdiction in the Respondent to cite the Attorney General for contempt, or any person for contempt, save for contempt in face of the Court.

(b) The Respondent was in error in holding that any issue had been raised and in holding that the issue whether the Attorney General's Scheme applied to the extradition cases in the District Court was one to be tried as a justiciable issue on legal proof.

27. It seems to me that this issue can be resolved entirely on the question of justiciability.

28. As Kelly J. stated at p. 10 of his judgment:-

"The Attorney General is a constitutional officer. Under Article 30 of the Constitution it is provided:-

'There shall be an Attorney General who shall be the advisor of the Government in matters of law and legal opinion, and shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law.'

In addition to his constitutional status, he is also the leader of the Bar.

It is clear from the passage which I have cited from the judgment of O'Dalaigh C.J. in the Woods case that the assurance give to the Supreme Court by Counsel on behalf of the Attorney General in that litigation was accepted by the Supreme Court without question. I am of opinion that that is the general approach which the Courts ought to adopt to assurances given to them by Counsel instructed on behalf of the Attorney General in relation to matters of the type which were dealt with by the District Court in the instant case.

An assurance expressly given by Counsel upon the instructions of the Attorney General on a matter of the type in suit here ought to be accepted without question save in truly exceptional cases of which this was not one."

29. It is no part of the function of the District Judge to probe into the vires of the Applicant.

30. Once the Respondent had received the necessary assurance from or on behalf of the Applicant in this case that legal representation would be provided, the Respondent ought to have been satisfied to accept it. To thereafter refuse to make a recommendation under the Scheme was, in my view, erroneous and quite unjustifiable. It was even less appropriate to direct that the contempt hearing would take place that very same day.

31. In so directing, and in purporting to rely upon the Petty Sessions (Ireland) Act, 1851 the Respondent fell into further error. Section 9 of the Petty Sessions Act is clearly confined to contempt in face of the Court.

It provides:-

"... and if any person shall wilfully insult any justice or justices so sitting in any such Court of place, or shall commit any other contempt of any such Court, it shall be lawful for such justice or justices by any verbal order either to direct such person to be removed from such Court or place, or to be taken into custody, and at any time before the rising of such Court by warrant to commit such person to gaol for any period not exceeding seven days, or to fine such person in any sum not exceeding 40 shillings."

32. This was clearly not a contempt in face of the Court, so the particular section was inappropriately invoked.

33. Finally, I cannot see that the letter sent by the Applicant could in any circumstances be regarded as a contempt. It is quite normal for the Applicant to communicate with the President of a particular division of the Courts in relation to matters within that jurisdiction. Indeed, it is quite impossible to think of any other more appropriate person to whom such a letter could have been written. The letter in my view does nothing more than clarify the application of the Scheme in relation to extradition matters in the District Court and could by no stretch of the imagination be construed as a commentary upon the Respondent's conduct of an extradition matter or an attempt to exercise pressure on the Respondent in the proceedings.

34. It is hard to find any rational basis for such contentions, but it does appear that there had been some ongoing disagreement between the Respondent and the Applicant regarding the application of the Attorney General's Scheme to the District Court. The Respondent had previously questioned the decision of the Applicant not to expand the Attorney General's Scheme to Family Law cases before the District Court. Apparently in a particular Family Law case the Respondent had strongly recommended that the Scheme be applied.

35. In the week preceding this controversy, the Respondent, according to Mr Mulholland's affidavit had apparently indicated that he had received two letters of the Director General of the Attorney General's Office advising him that the Scheme did not apply to the District Court. It was unfortunate that thereafter the controversy assumed the configuration which led to this application.

36. I will therefore quash the decision of the Respondent to issue the citation for contempt on the grounds that there was no justiciable issue which could have justified the Respondent in making such an Order. It was one which, as submitted by Mr Comyn, no reasonable judge of the District Court could have made.

37. It is not necessary to adjudicate on the other issue canvassed during the hearing as to the extent (if any) of the District Court's jurisdiction to cite for contempt in cases other than by way of enforcement of the Court's own Orders or for contempt in face of the Court.

Dated this 29th day of March, 2000.

Signed _________________________

Nicholas J. Kearns