The High Court has ruled that a District Court legal aid certificate was granted unlawfully for a charge for which no application had been made, and said it would grant the relief sought in a judicial review brought by James Roche.
Mr Justice Barry O’Donnell’s judgment, delivered on 21 June 2024, concerns a certificate issued after Mr Roche appeared before Nenagh District Court on 19 August 2022. He faced charges listed on seven charge sheets. After a contested bail hearing, his solicitor, Mr Hogan, was told that legal aid had been assigned for one charge sheet. Mr Hogan then sought a second assignment for a charge relating to an alleged offence on 24 December 2021. The judge agreed.
A certificate received by Mr Hogan four days later covered the December charge and a different charge sheet, ending in 695, than the one identified during the hearing. The respondent accepted there had been no application for legal aid in respect of that charge sheet, but argued that the court should refuse relief. It said the discrepancy could have been raised at later District Court sittings or treated as a clerical error and corrected.
The High Court held that the statutory scheme required an application before a certificate could be granted. It relied on earlier High Court decisions, including DPP v Cully and King v DPP, and concluded that the certificate for the charge sheet ending in 695 was irregular.
The judicial review application was made outside the usual three-month period. Mr Hogan’s affidavit said papers had been filed in October 2022, but he mistakenly believed filing stopped time and acknowledged it was his oversight not to bring the matter before the court earlier. The judge accepted that the delay resulted from the legal representatives’ error, a circumstance ordinarily insufficient on its own. He nevertheless extended time, citing the applicant’s timely preparation and filing of papers, the absence of prejudice, the clear merits of the challenge and its connection to an accused person’s access to legal representation.
The judge rejected the respondent’s proposed alternatives. He said it was not clear that the discrepancy was merely clerical and found that the order had already been drawn up before it could be revisited in the District Court. He was not satisfied that the respondent’s arguments justified refusing relief.
The court said Mr Roche was entitled to the relief in his notice of motion, including an order quashing the certificate and remitting the matter to a different District Court judge. Because the judgment was delivered electronically, the judge expressed only a provisional view that Mr Roche should receive his costs. He listed the case for final orders and any costs argument on 28 June 2024.