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Legal Aid

An accused’s entitlement to Legal Aid in Ireland is both a Statutory and a Constitutional right. The Criminal Justice (Legal Aid) Act 1962 ”the 1962 Act” sets out the Statutory Provisions for Legal Aid in criminal matters. The Supreme Court in State (Healy) v Donoghue [1976] I.R.325 confirms that the provision of Legal Aid in criminal cases is a Constitutional obligation of the State. It derives from the guarantee of a Trial in due course of law under Art.38.1 of the Constitution.

Section 2 (1) of the 1962 Act as amended provides that if it appears to the District Court before which a person is charged with an offence, that,

  • the means of the person are insufficient to enable him to obtain legal aid and that,
  •  by reason of the gravity of the offence with which he is charged, or,
  • other exceptional circumstances

It is essential in the interests of Justice that he should have legal aid in preparation and conduct of his defence before it, the District Court shall, on application being made to it in that behalf, grant a certificate in respect of the accused, for legal aid and, thereupon, the accused shall be entitled to such legal aid and have a Solicitor.

The Statutory Scheme provides therefore that there must be an application to the Court by an accused for legal aid before a District Judge can grant a legal aid Certificate and that the accused must be actually charged with an offence before the District Court.

If an accused is not charged with an offence before the District Court, it follows that the District Court does not have Jurisdiction to consider and determine an application for legal aid under Section 2 of the 1962 Act.

If however, an accused is charged with an offence before the District Court, even where the Prosecution asks the District Court to make no Order in relation to the charge, the District Court has Jurisdiction to consider and determine an application for legal aid.

Section 2 (2) of the 1962 Act provides that the decision of the District Court on an application under Section 2 (1) of the Act “shall be final and shall not be appealable”.

Let us now look at the meaning and effect of the phrase ‘Gravity of the offence’.

O’Donnell J., in Joyce v Brady [2011] 3IR.376 at 387 stated ‘if the trial of a person in the District Court on a given charge without legal aid would be unfair then the charge is of sufficient gravity or the circumstances are sufficiently exceptional so as to require legal aid. There is no doubt that the real risk of imprisonment is one compelling indicator that a trial without Legal Aid would be unfair but the perceived absence of such a risk is not the sole or decisive test justifying a refusal of Legal Aid.

“………furthermore, the refusal of legal aid following an inquiry by one District Judge of one member of the Gardaí as to whether that member perceived the accused to be ‘at risk’……… falls in my view short of what the Constitution requires”.

In his book Judicial Review of Criminal Proceedings (2nd ed.) at 5-109 Derek Dunne states that the overriding consideration of a Court when considering an application for legal aid is whether it is necessary for the purposes of ensuring that the accused receives a fair trial and a trial in due course of law as guaranteed by the Constitution. He goes on to say the range of factors bearing on the likelihood that the accused will not receive a fair trial if legal aid is not granted, are not confined to the factors set out in the 1962 Act .These include..

  • the ability of the accused to defend himself if legal aid is refused

(b) the age, maturity and personal characteristics of the accused,

(c) the absence or existence of previous convictions and

(d) the likely impact of a conviction on the accused in his or her future life.

In relation to the question of ‘exceptional circumstances’ these words are not defined in the 1962 Act. The Court is left to consider the particular circumstances or each case. Dunne contemplates such to include…

  • the nature of the accused employment (which might render a conviction more serious than it would otherwise be),
  • the ability of the accused to understand the charges against him,
  • the ability of the accused to conduct his own defence such as his youth, immaturity or incapacity.

(iv)The Court should have regard to the age, infirmity, mental capacity, education and literacy or other handicap of an accused,

  • where the charge carries with it the right to elect for summery Trial or Trial on indictment this is another factor that should be taken into account as to whether there are exceptional circumstances justifying the granting of Legal Aid.

The Hight Court has pointed out that the Courts are under a duty to inform an accused of his right to apply for Legal Aid and to conduct an inquiry in accordance with the tests as set out in the 1962 Act in relation to the applicants means, the gravity of the charge is preferred and whether or not any exceptional circumstances exist.

In this case of Whelan v Fitzpatrick (2008) 2IR. 678 the accused was charged with a failure to provide a urine sample contrary to Section 13 of the RTA 1994. Judge Fitzpatrick refused Legal Aid stating the Court ‘did not given legal aid in driving cases’.

No other reason was provided and legal aid was refused. Budd J. quashed the District Courts refusal of legal aid. He pointed out that the Judge had failed to conduct an adequate inquiry as to whether the criteria of the grant of legal aid as set out in the 1962 Act were satisfied or not and moreover, that the District Court Judge had unlawfully fettered the exercise of his own statutory power under the 1962 Act by determining the application for legal aid on the basis of…” a self-imposed policy of not granting free legal aid in road traffic offences”. This was irrespective of whether the criteria of the grant of legal aid as set out in the 1962 Act were satisfied or not.

Second Legal Aid Certificate

Where two or more legal aid certificates are granted, Regulation 7 (4) of the Criminal Justice (Legal Aid) Regulations 1965 may apply. This provides that where two or more certificates for free legal aid are granted to a person, and the cases, in relation to which they are granted, are heard together or in immediate succession, one certificate only shall be deemed for the purposes of these Regulations to have been granted to the person unless the Court, being satisfied that there is good reason for so doing, otherwise directs.

It is obviously of vital importance therefore for a practitioner, when asking for more than one Legal Aid Certificate, to ask the Court to confirm that it, the Court, is satisfied that there is good reason for granting a second legal aid certificate, and so directs.

There is no provision in the Statutory Scheme for legal aid which permits the District Court to “extend” an existing legal aid Certificate (i.e., to include further charges not already included in the existing legal aid Certificate).

Counsel in the District Court

On the granting of legal aid in the District Court the 1962 Act does not include a provision for representation by Counsel in the District Court or on appeal to the Circuit.

In Carmody v Minister for Justice Equality and Law Reform [2010] 1IR 635 the High Court held that the Constitution right to legal aid in criminal matters included a Constitutional right to apply, prior to being tried, for legal aid to include Solicitor and Counsel in criminal proceedings in the District Courts.

The High Court emphasised that this right does not exist in all cases except where representation by Counsel in the District Court is ‘essential in the interest of justice’.

Following on this decision the Minister introduced a Non-Statutory Scheme known as Non-Statutory District Court Counsel Scheme (‘scheme’) to give effect to the decision in Carmody.

The scheme makes reference to the gravity of the charge, the complexity of the case and other exceptional circumstances that need to be considered by the Court if Counsel is to be assigned in the District Court.

The scheme goes on to state that where a person has been convicted in the District Court and was represented in the District Court by Solicitor and Counsel that person shall be entitled to free legal representation in the preparation and conduct of an appeal. Where Counsel was assigned in the District Court hearing he/she is entitled to have Counsel assigned to him/her in the Circuit Court Appeal.

Interestingly the scheme does not make any provision for the assignment of Counsel de novo in relation to the District Court Appeal where Counsel was not assigned in the District Court. A practice seems to have grown up that Circuit Court Judges, in District Court Appeals will grant legal aid to the Solicitor with a certificate for Counsel. This application should  be made when Counsel appears in a District Court Appeal.

Two Counsel

The Criminal Justice (Legal Aid) Regulations 1965 provides that a Court granting a Certificate (other than a District Court legal aid certificate) may, if the person to whom it is granted is charged with Murder, or if the case concerning him appears to present exceptional difficulty, (and is not an Appeal to the Circuit Court), a Court can direct that two Counsel be assigned  if the Court believes that the case cannot be conducted adequately without the assistance of two Counsel.

The jurisdiction of the Court under Regulations 7(2) of the 1965 Regulations must be exercised by a reference to the requirements of the Constitution.  At 5-136 Dunne makes reference to the leading case of MW -v- DPP [2017] IEHC 83.

This case refers to a situation where the applicant was charged with historical offences of indecent assault on his niece. The offences consisted of conduct that amounted to rape. The applicant’s niece made a complaint concerning the applicant following the making of complaints concerning the applicant by two other complainants, on foot of which the applicant was charged with such prior offences, convicted and sentenced.

The Trial Judge refused the application for two Counsel in the “second case” but Ní Raifeartaigh J. quashed the decision of the Trial Judge to refuse the application for two Counsel and remitted the matter for further consideration of whether a second Counsel was warranted on the facts of the case.

She advised that issues regarding the nature and gravity of the charges, the fact that there was a 36year delay between the alleged offences and the forthcoming Trial, the interaction between this set of allegations and those in respect of which the applicant had already been convicted and sentenced and evidential complexities relied on by the Defence, should have been taken into account.

The Legal Aid Custody Issues Scheme, formerly known as The Attorney General’s scheme is an ex gratia scheme funded from monies provided by the Oireachtas. The purposes of this scheme is to fund the legal costs of persons who cannot afford legal representation in cases in the High Court, the Court of Appeal and the Supreme Court which are not covered by the statutory legal aid scheme. The administration of the scheme was transferred to the Legal Aid Board with effect from the 1st of June 2012.


Eamonn Fleming.

May 2021.










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