The High Court has quashed the Legal Aid Board’s refusal to pay Bernie McDonagh’s legal fees for an earlier judicial review, finding that the case fell within the Legal Aid Custody Issues Scheme. The judgment sets aside the refusal but does not itself direct that the fees be paid.
Ms Justice Tara Burns ruled on 28 September 2018 that the Board had misinterpreted the scheme when it declined the claim in a decision dated 5 September 2017. The current proceedings sought certiorari to quash that decision.
The earlier judicial review challenged a certificate issued after Mr McDonagh’s 2013 conviction for sexual assault. The certificate subjected him to reporting requirements under the Sex Offenders Act 2001. The earlier case also raised whether his right to an expeditious trial had been breached while he was a minor, and sought a stay of further criminal proceedings. The judge said the certificate was the main issue.
The High Court struck out that judicial review after Mr McDonagh agreed to withdraw it, and recommended that the State pay his solicitor and two counsel under the scheme. The District Court later concluded the criminal proceedings in a way that resulted in the conviction being withdrawn, ending the reporting requirements.
The Legal Aid Board had argued that the scheme was limited to cases involving custody or liberty, and that the certificate did not affect Mr McDonagh’s liberty. The judge rejected that reading. She said the scheme’s wording covered judicial reviews concerning criminal matters that sought certiorari, mandamus or prohibition, as well as such reviews concerning an applicant’s liberty.
She also found that the earlier case met both grounds in any event. The certificate arose from a criminal conviction, and breaching its reporting requirements could lead to imprisonment for up to 12 months. The judge said that made the applicant’s liberty an issue.
The court described the Board’s error as exceptional circumstances warranting intervention in its administration of the scheme. It declared the refusal ultra vires, null and void, and ordered certiorari quashing it. The judgment did not determine the amount payable or make a separate order for payment.