High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"4. Mr Fitzsimons told me that his client might be facing a custodial sentence and invited me to hear the facts of the Crown. I had read the charge sheet but I do not remember the witness statements were still attached. It would not be my practice to read the witness statements before the hearing of a contest. I did not think it was appropriate to hear from the Crown on the issue of legal aid but I told Mr Fitzsimons I would reserve the decision until I had heard the case because he claimed that his client's liberty may be in jeopardy. It would in my experience be very rare for a defendant to be sentenced to a custodial term for any of the offences that the applicant faced before me.

5. Mr Fitzsimons would not accept my decision to reserve and continued to argue with me. At that stage I told him that I had other cases to hear and asked him to go and consult with his client. He did so and came back into court later to ask for an adjournment because he was considering judicially reviewing my decision. The order book sheet states that I refused legal aid. That was my original intention but I said I would reserve my decision until I had heard the case before Mr Fitzsimons argued that his client would be facing a custodial sentence. At the end of the evidence I would have been able to review and assess the issue of legal aid depending on the view I took of the evidence and the defendant's record if he had one."

In paragraph 5 of his affidavit Mr Fitzsimons sets out his version of events thus:

"I also referred the Resident Magistrate to the Widgery Guidelines and again submitted that legal aid should be granted. The Magistrate stated that there's no risk of loss to his lively hood as he was in receipt of a Job Seekers Allowance. I asked her to consider the risk and conviction of a sentence being imposed which would deprive the applicant of his liberty. The Resident Magistrate replied 'these are only motoring offences. I have six other cases to deal with here and haven't time to listen to this. There are senior practitioners in Belfast who do these cases all the time and do not apply for legal aid.' She indicated that she would reserve in the matter until she had heard the case. I stated this was not an acceptable position as I could not proceed without knowing whether or not my applicant would be granted legal aid. The Resident Magistrate replied 'I don't care if that is not acceptable. This man is driving a Lexus car. He is paying insurance and tax and driving an expensive car on the road and I don't think that the charges before me merit legal aid but I will reserve on that until the outcome of the case having heard the merits of the case.' I explained that the car did not belong to the defendant and he was not insuring or taxing it and invited the Resident Magistrate to seek from the prosecution an outline the facts which would be presented to the court. The Resident Magistrate declined to do so. I sought to refer her to the case of Re McAuley's Application. However she declined to be addressed on the law and stated that she was passing the matter to enable me to take my client's instructions on what he wanted to do. …"

"(1) If it appears to a magistrates' court that the means of any person charged before it with any offence or who appears or is brought before it to be dealt with are insufficient to enable him to obtain legal aid and that it is desirable in the interests of justice that he should have free legal aid in the preparation and conduct of his defence before it, the court may grant in respect of him a criminal aid certificate, and thereupon he shall be entitled to such aid and to have:

(a) a solicitor;

(b) subject to para. (2), counsel, assigned to him for that purpose in such manner as may be prescribed by rules made under Article 36."

Article 31 is also relevant. It provides:

"If, on a question of granting a person free legal aid under Article 38, 29 or 30, there is a doubt whether his means are sufficient to enable him to obtain legal aid or whether it is desirable in the interests of justice that he should have free legal aid, the doubt shall be resolved in favour of granting him free legal aid."

"We stress the necessity for a practical and commonsense approach when applying this test, for the offences in which a sentence of imprisonment is authorised and in which imprisonment is a theoretical consequence of conviction are legion. It is only in those cases where imprisonment must be seriously regarded as a possibility – a small proportion of the whole – that we see a prima facie need for legal aid. Sometimes the risk of imprisonment will be apparent. Sometimes it will depend in the event on the accused's record. If the court dealing with the application knows the accused's record – the accused himself may put it forward – it will naturally take it into account even if it means the case having to be tried by a differently constituted bench. Ordinarily the court will not know the accused's record and we simply have it in mind that the court should then try to distinguish the cases in which its own experience and the general practice in Magistrates' Courts suggest that imprisonment or some other form of custodial sentence will have to be seriously considered in the event of conviction on the particular facts disclosed in the information. We do not think that experienced magistrates have any difficulty in identifying such cases from the terms of the information before them supplemented by one or two brief questions as to the nature of the case for the prosecution. If legal aid is refused, but the case when open proves to be more grave than had originally appeared, the court can review its decision and if necessary adjourn the matter for a fresh start with legal aid on a subsequent occasion. Occasional inconvenience like this must be accepted as an alternative to the wholesale granting of legal aid in undeserving cases."

In Re McKinney Carswell J stated:

"It appears to us that there is force in the contention advanced by counsel for the applicant before us that a magistrate should not put the defendant's solicitor in the position of having to make a case contrary to his clients' interests in order to secure the grant of legal aid, in which the solicitor has himself a real interest. We do not propose to lay down any hard and fast procedure for the magistrates to follow in obtaining the information necessary for them to determine legal aid applications before them, for we are confident that their own good sense will enable them to do so effectively, if they bear in mind the importance of the applicant's point which we have accepted. In the ordinary way the prosecutors should be able to furnish the court with the information which it needs. We have no doubt that magistrates will receive any further details which defence solicitors wish to put before them, and this may be of particular value if the information which the prosecutor can provide is not adequate. It seems to us that the important factor is that magistrates should not compel or expect the defence solicitor to provide information as a matter of course and that they should ordinarily expect to receive it from the prosecution."