The High Court quashed District Judge Coughlan’s decision to decline to consider Gerard Brett’s legal aid application, finding that new charges and a change in how the case would be tried gave the District Court jurisdiction to consider a fresh application.
Mr Justice Hogan’s judgment, delivered on 9 June 2011, concerned an application to quash a decision made at Swords District Court on 23 November 2010. The judge had treated the legal aid issue as already decided, following an earlier refusal, and said he was not an “appellant court”.
Brett had been charged with drunk driving in September 2010. In October, District Judge Brady refused legal aid, while recognising that Brett’s finances were “a borderline case”. In November, Brett faced a new charge of dangerous driving causing death. The prosecution said the charges would proceed on indictment.
Accounts differed over what happened at the November hearing. Brett’s solicitor said Judge Coughlan refused to allow a legal aid application. The prosecution’s Garda witness and the District Court clerk said the judge had only adjourned the prosecution and remanded Brett on continuing bail. Mr Justice Hogan noted that the formal order recorded only the remand, but also considered uncontradicted evidence that the judge had refused the application on the basis that the matter had already been determined.
The High Court held that the earlier refusal could not prevent a fresh application where circumstances had materially changed. The dangerous driving charge had not been before Judge Brady, and the drunk driving charge was now also to be tried on indictment alongside it. The court said those changes justified a fresh application; it did not decide whether Brett met the legal aid criteria.
Mr Justice Hogan rejected the argument that quashing the decision would be futile. Leaving it in place could give the impression that the District Court had conclusively ruled on the new charge. The High Court quashed the decision insofar as Judge Coughlan declined to consider legal aid for the dangerous driving charge and insofar as he held that he lacked jurisdiction to revisit the earlier decision because the drunk driving charge was to be tried on indictment.
The ruling did not grant Brett a legal aid certificate or determine the merits of any fresh application.