The Court of Criminal Appeal has ruled that it has jurisdiction to award the costs of a successful appeal and a possible retrial even though the appellant had received legal aid for his original trial. The ruling resolved a preliminary legal issue; it did not itself make a costs award or require a retrial to take place.
Timothy Cunningham was convicted in March 2009 of ten money-laundering counts after a 44-day trial in Cork Circuit Criminal Court. The prosecution alleged that he used money, or its equivalent, knowing or believing it came from the Northern Bank robbery in Belfast in December 2004. One count concerned about £2.4 million sterling allegedly found during a search of his home. He was sentenced to ten years in prison.
In May 2012, the Court of Criminal Appeal allowed his appeal, quashed the convictions and ordered a retrial on the first nine counts. That order authorised a retrial but left the decision whether to prosecute again to the prosecutor. The appeal followed a Supreme Court ruling that the statutory provision used to authorise the search was unconstitutional.
The State argued that legal aid certificates granted for the original trial and an appeal meant Cunningham could not receive costs. The judgment said a family member had privately funded the appeal, and the solicitors who acted said they had not known about the appeal certificate. Their fees had been paid. Cunningham was not seeking the costs of the original trial.
The court considered section 4(2)(a) of the Criminal Procedure Act 1993, which allows it to order the State to pay appeal and retrial costs where a legal aid certificate does not apply, subject to an exception if the defence contributed to the need for the appeal or retrial. The judgment said there was no suggestion that the defence had contributed to that need.
The court held that the certificate for the original trial did not automatically prevent Cunningham from choosing private funding for a retrial. It said the legislation was intended to make legal aid available for a retrial without requiring a fresh application, rather than compel an accused to use it. It also noted that a transfer of the appeal certificate to the new solicitors had not been sought.
The court ruled that it retained jurisdiction to order the State to pay the appeal and retrial costs, provided Cunningham could establish that legal aid was not used for the appeal and would not be sought or used for a retrial. Whether any costs would ultimately be awarded remained to be determined.