High Court of Ireland Decisions

Costigan v. Brady & Anor [2004] IEHC 16 (6 February 2004)

 
THE HIGH COURT JUDICIAL REVIEW

[2003 No. 566 JR]

BETWEEN

ROSE COSTIGAN

APPLICANT

AND JUDGE PATRICK BRADY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT of Quirke J. delivered the 6^th day of February, 2004.

In this case the applicant Rose Costigan seeks relief by way of judicial review including (a) an order of certiorari quashing an order of the first named respondent made on 19^th May, 2003, refusing an application made on behalf of Ms. Costigan for legal aid (b) an order requiring the first named respondent to reconsider the application and (c) an order staying the proceedings in the District Court pending the determination of these proceedings.

FACTUAL BACKGROUND

The following facts are not in dispute.

1. The applicant appeared before the first named respondent in Kilmainham District Court on 19^th May, 2003, charged with an offence contrary to the provisions of s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

An application was made on her behalf to District Judge Brady for a certificate for free legal aid. That application was accompanied by a completed statement of means certificate and it was indicated that the Director of Public Prosecutions had consented to the summary trial of Ms. Costigan in respect of the charge concerned in the District Court.

2. Judge Brady inquired of Sergeant Gabriel McGrath, who was then acting as court presenter on behalf of An Garda Síochána in respect of the charge preferred against Ms. Costigan, whether he was of the opinion that Ms. Costigan was "at risk" in respect of the charge. Sergeant McGrath interpreted this as an inquiry as to whether, if Ms. Costigan was convicted of the charge preferred against her, she was likely to receive a custodial sentence.

Sergeant McGrath, having considered the matter and upon discovering that the value of the property which was the subject of the charge preferred against Ms. Costigan was €4.66, replied that it was his opinion that Ms. Costigan was unlikely to receive a prison sentence if convicted of the charge preferred against her.

Having heard submissions from counsel on behalf of Ms. Costigan Judge Brady refused to grant Ms. Costigan the certificate which had been sought on her behalf.

3. On 9^th June, 2003 counsel on behalf of Ms. Costigan renewed the application to the District Court on her behalf for a certificate of legal aid. Judge Reilly ( who was then sitting) refused to grant a certificate indicating a reluctance to interfere with the earlier order made by Judge Brady.

4. On 16^th July, 2003, counsel on behalf of Ms. Costigan again renewed the application for legal aid before Judge Brady submitting that, arising from a consultation with Ms. Costigan, her solicitor was of the opinion that Ms. Costigan was not in a position to represent herself and was accordingly at risk of receiving a custodial sentence in respect of the charge preferred against her. In response to an inquiry made by Judge Brady the then court presenter Sergeant Eamon O'Hara replied that he accepted what had been stated on behalf of Ms. Costigan by her counsel.

Judge Brady indicated that he disagreed with this view and refused to grant Ms. Costigan the certificate which had been sought on her behalf.

5. On the afternoon of 16^th July, 2003, in Kilmainham District Court Judge Brady sought to clarify his decision but neither the applicant nor her legal advisers were present. The following day which was 17^th July, 2003, Judge Brady advised counsel on behalf of Ms. Costigan that he wished to clarify his reasons for refusing Ms. Costigan a certificate for legal aid. He then indicated that having considered the value of the food items with which Ms. Costigan was charged with having stolen (€4.66), he had concluded that the applicant was not at risk of receiving a custodial sentence and indicated further that the items might in turn be regarded as "necessities".

6. It is acknowledged on behalf of all of the parties to these proceedings that Ms. Costigan does not have assets or income sufficient to enable her to obtain professional legal representation from her own resources.

7. It is further acknowledged on behalf of all of the parties that at all times material to these proceedings, and in particular on 19^th May, 2003, 9^th June, 2003, 16^th July, 2003, and 17^th July, 2003 Ms. Costigan was represented by either solicitor or counsel or by both.

THE LAW

Section 2 of the Criminal Justice (Legal Aid) Act, 1962 provides as follows:

"(1) If it appears to the District Court;

(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid and

(b) 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 before it,

the court shall, on application being made to it in that behalf, grant in

respect of him a certificate 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…

(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable."

It follows that Judge Brady was empowered to grant Ms. Costigan a certificate for free legal aid provided he was satisfied:

(1) that the means of Ms. Costigan were insufficient to enable her to obtain legal aid and

(2) that by reason either of the gravity of the charge preferred against her or of other exceptional circumstances the interests of justice required that she should have legal aid in the preparation and conduct of her defence.

It seems likely, on the facts, that Judge Brady was satisfied that the means of Ms. Costigan were insufficient to enable her to obtain legal aid. However, before exercising the power conferred upon him by s. 2 of the Act of 1962 it was necessary for Judge Brady to be further satisfied either:

(1) that the gravity of the charge which she faced made it essential in the interests of justice that Ms. Costigan should have legal aid or

(2) that some other exceptional circumstances existed which made it essential in the interests of justice that she should be granted a certificate.

The question of the gravity of the charge was entirely a question for Judge Brady. He duly investigated that question on two occasions and it is clear that it appeared to him that the gravity of the charge facing Ms. Costigan did not make it essential in the interests of justice that she should have legal aid in the preparation and conduct of her defence.

Mr. O'Higgins S.C., counsel for the applicant, argues that there were "exceptional circumstances" present in Ms. Costigan's case which rendered it essential in the interests of justice that she should have legal aid. He contends that the "exceptional circumstances" which warranted legal aid were the applicant's nervous disposition and the belief of her solicitor that she was someone who was not capable of representing herself adequately in court.

He relies upon the dicta of McMahon J. in the case of O'Neill v. Butler [1979] I.L.R.M. 243 who considered the concept of such "exceptional circumstances" in the following terms at p. 245:

"S. 2 of the Criminal Justice (Legal Aid) Act, 1962 requires the District Justice in considering whether it is essential in the interests of justice that the defendant should have legal aid to have regard not merely to the gravity of the charge but also to any exceptional circumstances. It would not be proper to leave the onus of establishing such exceptional circumstances upon a defendant who may be ignorant or inarticulate and the Justice should enquire into the matter himself..…Where the interests of justice require that the defendant should have legal aid the Constitution requires that he be afforded the opportunity of being legally represented and it is the duty of the Justice on behalf of the State to see that this opportunity is afforded ..… The Justice should ascertain the general circumstances of the defendant and he should invite the defendant to put forward any exceptional circumstances which the defendant wants to have considered in regard to the grant of Legal Aid. If the Justice is not satisfied about the existence of any special circumstances put forward by the defendant he can require the defendant to give evidence to prove the existence of the alleged exceptional circumstances."

There is no doubt that a District Judge to whom an application is made for certificate for free legal aid pursuant to the provisions of s. 2 of the Act of 1962 must, in addition to considering the means of the person charged and the gravity of the charge investigate the question of whether or not any exceptional circumstances exist which would make it essential in the interests of justice that the applicant should be granted legal aid.

In most cases an applicant for legal aid will not have professional legal representation and may be nervous, inarticulate, or otherwise handicapped in his or her capacity to protect his or her interests. In such circumstances an onus certainly rests upon the District Judge to conduct an inquiry into the applicant's means, the gravity of the charge preferred and whether or not any "exceptional circumstances" exist of the kind referred to earlier.

In the instant case I am quite satisfied on the evidence that District Judge Brady conducted such an inquiry and whilst it is likely that it appeared to him that Ms. Costigan's means were insufficient to enable her to retain professional legal advisors he was clearly satisfied that the gravity of the charge which Ms. Costigan faced did not render it essential in the interests of justice that she should have legal aid and he was further satisfied that no exceptional circumstances existed which made it essential in the interests of justice that she should have such legal aid and accordingly he refused to grant the certificate which was sought.

On the undisputed facts Judge Brady sought assistance from both Sergeant McGrath and Sergeant O'Hara on the question of the gravity of the charge. Having heard the evidence of both witnesses and submissions from counsel on behalf of Ms. Costigan on the issue he refused legal aid on that ground.

He also heard and considered representations and submissions made by counsel on behalf of Ms. Costigan who argued that there were exceptional circumstances in her case because:

"arising from a consultation with the applicant, her solicitor was clearly of the view that she was not in a position to represent herself and was at risk." (see para. 16 of the affidavit of Ms. Binchy sworn on 28^th July, 2003).

He nonetheless refused the relief sought.

This is not a case where an applicant for legal aid is inarticulate, disadvantaged and unable to discharge an onus of establishing "exceptional circumstances" which may make it essential in the interests 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 issues of means, gravity of offence and "exceptional circumstances".

Judge Brady, having heard such submissions refused to grant the relief which was sought on behalf of Ms. Costigan.

It is not the function of this court in an application for a judicial review of the order of Judge Brady 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 judge Brady was lawful or was, as contended on behalf of Ms. Costigan, made without jurisdiction, or in excess of jurisdiction or in breach of principles of natural and constitutional justice.

This court is quite satisfied that in making the order which is sought to be impugned Judge Brady, for the reasons outlined above, acted lawfully, within jurisdiction and in accordance with the power conferred upon him by s. 2 of the Criminal Justice (Legal Aid) Act, 1962.

It follows that the relief sought by the applicant is refused.