The High Court declared a rule governing criminal legal aid fees for a solicitor representing co-accused to be ultra vires, finding that it failed to respect two applicants’ right to the effective benefit of legal aid and their choice of solicitor.
The judgment by Ms Justice Baker, delivered on 1 November 2017, concerned Charlie Ward and Patrick Ward, a father and son sent forward for trial on indictment in Galway Circuit Criminal Court. They were two of three accused facing charges including assault, criminal damage and possession of an article. The third accused was Martin Ward, identified in the judgment as Charlie Ward’s son.
All three received legal aid certificates and sought to instruct solicitor John Shanley. The proposed trial was to be heard as a unitary trial, with an alleged element of common design. The judgment records no argument that a conflict between the accused would prevent Shanley from representing them. He came on record for all three, but later told the applicants he could not continue after learning that the Legal Aid Board would pay him as if he represented one accused only. He remained on record for Martin Ward, who had instructed him first.
The applicants challenged Article 3(1)(g) of the Criminal Justice (Legal Aid) (Amendment) Regulations 1978. It provided that where the same solicitor was assigned under multiple legal aid certificates for cases heard together, the solicitor was treated as assigned in relation to one case only. The State opposed the application, arguing, among other things, that it was brought outside the three-month time limit and that the applicants remained free to choose another solicitor.
Justice Baker rejected the time-limit objection. She found the applicants’ grounds arose when Shanley told them he would no longer act in the circumstances. The court also held that the right to choose publicly funded representation is not absolute: a solicitor cannot be compelled to act and must participate in the legal aid scheme.
On the substance, the court found the regulation’s practical effect was to deny payment for a solicitor chosen to represent more than one accused in a joint trial. The enabling legislation allowed regulations to set rates or scales of fees, the judge said, but did not authorise setting payment at zero in those circumstances. The judgment also noted that a reduced fee was payable for representing additional accused in the District Court, while the Circuit Court rule provided no payment.
The court declared Article 3(1)(g) ultra vires the Minister and declared that it failed to respect the applicants’ right to be fully and effectively afforded legal aid for the conduct of the trial. The judgment did not decide the underlying criminal charges or order a particular solicitor to act.