THE SUPREME COURT
JUDGE PATRICK BRADY AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment delivered by O’Donnell J. on the 29th day of July 2011.
1. On 23rd September, 2005, the applicant herein was arrested and charged that on 25thJune, 2005, he had stolen property to a value of €287.45 from a Spar shop at Strand Road in Portmarnock, County Dublin, contrary to s4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (hereafter “the Act of 2001”). The offence created by s4 of the Act of 2001 is the offence of theft, defined in the Act as the dishonest appropriation of property without the consent of the owner with the intent of depriving its owner of it. The offence created is indictable, and on conviction on indictment a person may receive a fine or term of imprisonment for a period of up to ten years. Under s53 of the Act of 2001, a person charged with an indictable offence created by the Act, may be tried summarily if first, the District Court considers that it constitutes a minor offence and is fit to be tried summarily; second, if the DPP consents; and third, if the accused on being informed of his or her right to trial by jury, does not object. On summary conviction an accused may be liable to a fine of up to €1,500, or imprisonment for a term not exceeding 12 months or both. The maximum fine has since been increased to €5,000 by s10(3) of the Fines Act 2010.
2. On 4th October, 2005, the applicant appeared before the first named respondent at Swords District Court. A garda sergeant indicated to the Court that the DPP was consenting to summary disposal. As at the time of commencement of these proceedings the other preconditions for summary disposal had not been met in that the District Judge had not yet determined that the offence was a minor offence fit to be tried summarily and the applicant had not been informed of his rights to trial by jury and had not objected to summary trial.
3. On this occasion the applicant was represented pro bono by a solicitor who applied for a legal aid certificate on his behalf. The first named respondent did not decide that issue then, but adjourned it because it was his practice to require a vouched statement of means. It is now common case in these proceedings that the applicant’s means were such that he was not in a position to pay for legal assistance. It is also common case that he had no previous convictions and no previous experience of court. His solicitor also made an application at this hearing for disclosure including, and in particular, disclosure in respect of any closed circuit television recording.
4. On 25th October, 2005, the applicant appeared before the respondent again. Once again the legal aid application was not dealt with, apparently because a vouched statement of means had not been produced. A copy of the CCTV footage was given to the defence together with a witness statement. The provision of detailed witness statements is not itself required by the District Court Rules for cases of summary trial. However, it has been established in a number of cases, and in particular the judgment of this Court in DPP v. Gary Doyle  2 I.R. 286, that in certain circumstances the requirement of a fair trial guaranteed inter alia by Article 38 of the Constitution, may require that either the outline of the case to be met, or witness statements are provided by the prosecution to the defence in advance of a summary trial. The circumstances in which such disclosure should be made were identified by Denham J., at pp. 301-302 as follows:-
It follows that for the purposes of disclosure and the provision of an outline of the case to be met at least, this case was being treated as one of the more serious or more complex cases.
“The procedures necessary to obtain justice will vary as the cases vary. Many very minor cases may not require that statements be furnished. As O’Higgins C.J. stated in State (Healy) v. Donoghue  I.R. 325, at p. 350:-
“There are thousands of trivial charges prosecuted in District Courts throughout the State every day. In respect of all these there must be fairness and fair procedures, but there may be other cases in which more is required and where justice may be a more exacting task-master. The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him.”
The more serious cases and the more complex cases, may require copies of statements and other relevant documents be furnished in advance of the trial, to inform the accused of the accusation so that he might prepare his defence.”
5. On 8th November, 2005, the applicant made a further appearance at Swords District Court, again before the respondent. On this occasion he was represented by solicitor and counsel, again acting pro bono. An issue arose in relation to the CCTV footage provided. The applicant’s lawyers complained that the format in which the CCTV footage had been made available meant that it could only be viewed on CCTV equipment and could not be viewed on a standard video player. After some argument the first named respondent invited the prosecutor, without conceding any precedent, to provide the footage in a fashion which could be viewed by the applicant and his lawyers.
6. On the issue of legal aid, the respondent, having received a vouched application, inquired of the prosecuting garda (described as the Court presenter) whether the applicant was “at risk”. It was clarified on behalf of the applicant that by this phrase the respondent meant to ascertain whether, if convicted, the applicant would be at risk of a custodial sentence. The garda replied that the applicant was not at risk. There was then further argument as to the significance of a possible conviction for the applicant. The respondent then retired to consider the issue over the lunch break. Thereafter, he returned to Court and asked the presenting garda to outline the facts of the case. Those facts were that it was alleged that the applicant had been at the Spar premises, and was noticed to be acting suspiciously. Two young women were also there. A manager saw the women putting items into their bags. When she confronted one of them the applicant came over and abused her. It was alleged that the woman struggled to free herself from the manager’s grasp with the assistance of the applicant, and in doing so deliberately scratched the manager’s face including attempting to scratch her eye.
7. The respondent then announced his decision. He said he was refusing legal aid. He said he had considered the case of State (Healy) v. Donoghue  I.R. 325 and he considered the offence was a minor one with no risk of a custodial sentence. Such a sentence would, he considered, be a very harsh outcome of any trial of the matter. There were no exceptional circumstances which should lead him to grant legal aid. However, if there was an intervening offence which changed the risk an application for legal aid should be brought immediately. This reference makes clear the respondent’s thinking. An intervening offence (and conviction) would make more likely a custodial sentence on a conviction on this charge.
8. It is clear that the first named respondent was addressing himself closely to the words of the statute providing for legal aid. Section 2 of the Criminal Justice (Legal Aid) Act 1962 (hereafter “the Act of 1962”) as substituted by s5(6) of the Criminal Justice (Miscellaneous Provisions) Act 1997 reads as follows:-
9. In its material provisions, the section has remained unchanged since 1962. It seems clear that the first named respondent took the view that the person whose means were insufficient to enable him to obtain legal aid could receive a legal aid certificate by reason of the gravity of the offence or exceptional circumstances, either of which would demonstrate that it was essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before the Court. It also seems clear that the first named respondent considered that the question of the gravity of the offence was to be determined by considering whether a conviction in the District Court would result in a possible sentence of imprisonment. This was encapsulated in a short hand reference in the inquiry to the garda as to whether the applicant was “at risk”, but is also apparent by the significance the respondent attached to an intervening offence.
“If it appears to the District Court before which a person is charged with an offence or an alternative court within the meaning of section 5 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, before which a person is appearing –
the said District Court, or the alternative court, as may be appropriate, shall on application being made to it in that behalf, grant a certificate, in respect of him, 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 and (where he is charged with murder and the said District Court or the alterative Court as the case may be, thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.”
10. These judicial review proceedings were then commenced seeking an order of certiorari quashing the District Judge’s refusal to grant legal aid. During the proceedings in the High Court it became clear that the issue of the applicant’s election had not been dealt with in the District Court. The High Court judge observed that the District Court had indicated that it was willing to review the question of legal aid. The High Court judge considered that this was the appropriate way to deal with the issue. Accordingly he refused to quash the respondent’s order but remitted the matter to the District Court to allow the applicant to renew an application for legal aid and to argue if it was considered appropriate that the right to elect was itself an exceptional circumstance justifying the grant of legal aid. Against that order, the applicant has now appealed.
11. The first named respondent was properly careful to ensure that the applicant’s means were insufficient to allow him to retain his own legal assistance. Legal aid in an appropriate case is now recognised as essential in a civilised society but it also imposes substantial burdens on the State and it is entirely appropriate that the means of an applicant for legal aid should be established and verified. It is also the case that the landmark decision in State (Healy) v. Donoghue  I.R. 325 has established that legal aid is not required in every case in the District Court, and it would be undesirable if it were granted routinely for any matter no matter how trivial. Accordingly, it is sensible to seek to ensure that legal aid is granted where appropriate and is not abused. However, in seeking to apply a restrictive test, reduced almost to a rule of thumb encapsulated in the two words “at risk” the respondent was, in my view, in error.
12. While it will be necessary to analyse the statutory and constitutional provisions in some detail later in this judgment, it does seem to me that the very fact of the proceedings in the District Court ought to have led the respondent to conclude that even within the somewhat restricted language of the Act of 1962, this was indeed a case of sufficient gravity to justify the grant of legal aid. There is something more than odd in a court deciding the entitlement to legal aid by inviting a member of the Garda Síochána to consider if an accused is at risk that another court will or may impose a custodial sentence on the accused if convicted. This indirect and coded inquiry is adopted no doubt to avoid the Court becoming directly apprised of any previous convictions the accused may have, but in cases where the outcome of this exchange is a refusal of legal, aid the process may appear unsatisfactory. Furthermore, the result reached by the respondent was more than a little anomalous. If, for example, there was a co-accused who had elected for trial on indictment of the same offence then there is no question but that such a person would have been entitled to legal aid. Similarly, if another co-accused had previous convictions – something which it is undesirable should be discussed in advance of the trial in any event – then again, on the approach of the District Court, it would appear that he or she would have received legal aid in this case. But it appears that the fact that this accused had no previous convictions (and indeed no court experience) led to the conclusion that he should face a trial of this charge of theft by himself. In addition, although the respondent took a strict approach to the interpretation of the Act of 1962, he nevertheless expressly reserved the prospect of a further application for legal aid, even though by s2(2) of the Act of 1962 a decision of the District Court in relation to an application under s2(1) of the Act of 1962, as amended, shall be final and shall not be appealable. Nor is it easy to reconcile the apparent conclusion that the case was sufficiently important to require, or permit, disclosure (something the unrepresented defendant would be unlikely to know about), but insufficiently important to require legal aid. I appreciate the desirability of dealing with these issues expeditiously, and as long as the system is administered with flexibility and with a significant margin of error, there might be few causes for complaint in practice. But where, as here, the regime is applied with some strictness and results in a refusal of legal aid, the flaws in the system become more apparent.
13. It may well be that to a long serving District Judge, a busy practitioner or an experienced garda, that this case could be considered a routine District Court matter. But for a person who has never appeared in court before and who faces the possibility of conviction for theft an offence of dishonesty with all that that entails for prospects of employment, I do not think it could be considered anything other than serious. Indeed it is of some significance 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)
14. It is worth considering what would be involved in a professional defence of the case. It would be necessary to know that the offence itself was indictable but could be tried in the District Court but only with the agreement of the accused. It would be necessary therefore to form some view as to which court would be the most desirable from this accused’s point of view. If the matter was to proceed in the District Court it would be also necessary to know that an application could be made for disclosure which might inform the accused of the case which he had to meet. It might also be necessary to know the extensive law that has grown up in recent years about the significance of CCTV evidence, and more particularly, its absence. Careful consideration would have to be paid, to both the legal and factual basis upon which it could be said that the actions of the two women in the Spar shop could be attributed to the applicant. In addition to all of these steps a lawyer would have to consider what witnesses would be available for the defence. Leaving aside the statutory formula for one moment , if the sole question for a court was whether anyone would think this was the sort of case that could be fairly defended by a litigant on their own whilst suffering perhaps from that “fumbling incompetence that may occur when an accused is precipitated into the public glare and alien complexity of courtroom procedures, and is confronted with the might of a prosecution backed by the State” (State (Healy) v. Donoghue  I.R. 325, 354), then there could in my view, be only one correct answer.
15. It is apparent that the first named respondent took a simple if strict view both of the language of the Act of 1962 (as amended), and of the landmark decision in State (Healy) v. Donoghue. It was, he considered, necessary to establish the gravity of the offence and that in turn was determined by the sole question as to whether or not the accused was adjudged to be “at risk”. It is quite true to say that a number of the more well know passages in the judgment in State (Healy) v. Donoghue refer to the injustice created by a person whose liberty was at risk of facing a prosecution without the assistance of legal aid, and it is also clear that that case establishes the fact that not all criminal cases in the District Court require that legal aid. However, 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.
16. The fundamental importance of that justly celebrated case is that it made it clear that the issue of legal aid was not simply a matter of statutory construction: it was in certain circumstances, a constitutional entitlement. This was well expressed in the recent decision of this Court in Carmody v Minister for Justice Equality and Law Reform  IESC 71, as follows: “…the statements of principle in the judgments delivered in [Healy’s] case have informed and governed the manner in which the Act of 1962 is implemented and they explain why the right to legal aid for poor persons in criminal cases resides in the Constitution and not just in the statute”. If follows that even if the Act of 1962 had not existed, the result in State (Healy) v. Donoghue would have been the same. The constitutional right, from which an entitlement to legal aid for impecunious defendants was deduced is, primarily, the right to a trial in due course of law guaranteed by Article 38 of the Constitution. That is a right to a fair trial; it cannot be reduced to a right not to be deprived of liberty without legal aid. 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.
17. The emphasis placed in the District Court on a prediction of the possibility of imprisonment was, in my view, misplaced. Even on the words of the Act of 1962, the issue is the gravity of the charge, which imports some objective assessment, rather than some necessarily crude speculation about a future possible sentence of an individual offender, in respect of which there might be a number of variable features over which the respondent had no control. The statute itself refers to the “gravity of the charge” which directs attention to the intrinsic significance of the charge (in this case theft), rather than an assessment of the seriousness with which a court might view the offender if convicted.
18. It is worthwhile recalling precisely what is in issue in the case of State (Healy) v. Donoghue. John Healy, a youth of 18 years, whose formal education had ended aged 13 years, had been convicted in the District Court on two separate occasions. The first was a charge of breaking and entering and the second a charge of larceny. He was sentenced to three months and six months detention respectively. In neither case was he represented by a lawyer, but for different reasons. In the breaking and entering case, he did not apply for legal aid and was not informed of his entitlement to do so and accordingly, legal aid was not granted. On the larceny charge he was granted legal aid, but owing to a dispute then in existence between solicitors on the Legal Aid Scheme, and the Department of Justice, solicitors had withdrawn from the scheme in protest. After a number of adjournments the District Court considered it was necessary to proceed with the case, and accordingly the case was heard and Mr. Healy, without the benefit of his lawyer, was convicted.
19. In the High Court, Gannon J., quashed the conviction for larceny (where, it will be recalled legal aid had been granted but not provided,) but did not quash the conviction for breaking and entering, on the grounds that the Act required that an application for legal aid be made, and none had. The Supreme Court affirmed the judgment in relation to the larceny charge but reversed the judgment on the breaking and entering charge, and accordingly quashed both convictions.
20. Two important things emerge from a consideration of even this limited account of what is a landmark case. First, since Mr. Healy was sentenced to imprisonment on both charges, it was entirely understandable that the Court would frame the question as one relating to the rights of a person like Mr. Healy who was facing not just the risk, but the reality of imprisonment, without legal assistance for his defence. 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. Instead, the Court addressed the issue from the opposite perspective. There were as O’Higgins C.J., observed thousands of trivial charges prosecuted in the District Court throughout the State each day, without, the Court implied, the necessity for legal aid. Of course an offence which carried a real risk of imprisonment could not fall within the category of trivial cases. But there is nothing in the judgment to suggest that the line between trivial cases which could properly proceed without legal aid, and non trivial cases which could not, was to be determined solely by speculation as to the likelihood of imprisonment in the particular case. Indeed, given the unpredictability of court proceedings, and the fact that the full facts may emerge if at all on a full trial, then unless the test as to whether an accused might face a risk of imprisonment were applied with considerable flexibility there could be a serious risk of confusion, error, waste of time and, not least, injustice.
21. The second important feature of the case also sheds some light on the first. The central feature in the case is that on each occasion of which Mr. Healy complained, there had been perfect compliance with the Act of 1962, yet both convictions were quashed. In the case of the first conviction for breaking and entering, there was no statutory requirement that an accused person be informed of the availability of legal aid. On the contrary, the provision of legal aid by the Court was predicated on “application being made to it in that behalf”. Mr. Healy had not applied. Yet the Supreme Court reversing the High Court on this point, found that his trial without legal aid was not a trial in due course of law under Article 38 of the Constitution, and was a failure to vindicate Mr. Healy’s personal right to fair procedures guaranteed by Article 40.3 of the Constitution. It was equally if not more clear, that the statute had also been complied with in the larceny case. Mr. Healy had after all been provided with exactly what the statute contemplated – a legal aid certificate. There was thus no statutory complaint which he could make, but, as Henchy J., observed at p. 354:-
Accordingly, the Constitution required that if justice demanded that legal aid be provided, then justice also required that the trial should not proceed until that legal aid was a reality in the form, not merely of a certificate, but of a lawyer actually representing Mr. Healy in the defence of this case.
“As this Act is designed to give practical implementation to a constitutional guarantee, the judicial function in respect of the Act would be incompletely exercised if a bare or perfunctory application of it left the constitutional guarantee unfulfilled.”
22. 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. As O’Higgins C.J., observed at p. 352 of the judgment, the provisions of the Act do not match exactly what the Constitution requires. The words of the Act must always be approached therefore in light of the Constitution. A restrictive approach to the language of the Act is therefore likely to mislead. When the Act speaks of the “gravity of the charge” and “exceptional circumstances” the words must be interpreted and applied to ensure that the constitutional objective of a fair trial – a trial in due course of law – is achieved. 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 Justice of one member of the gardaí as to whether that member perceived the accused to be “at risk” (particularly when the trial may proceed before another District Judge and be prosecuted by another garda) falls in my view short of what the Constitution requires. In this regard it should be noted that the decision in State (Healy) v Donoghue has stood the test of time, and was an important foundation for the recent decision of this Court in Carmody. Both cases not only explain that the right to legal aid resides in the Constitution, but also give valuable guidance as to how that right should be applied in practice .
23. 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.