The High Court dismissed Owen McDonagh’s application to quash a District Court judge’s refusal to grant him a legal aid certificate, finding that an untruthful affidavit about his previous convictions was enough to disentitle him from relief.
Mr Justice Eagar delivered the judgment on 16 February 2015 in judicial review proceedings. McDonagh had also sought an order requiring a District Court judge to consider his legal aid application under the Criminal Justice (Legal Aid) Act 1962.
The challenge arose from a public order prosecution in Mullingar District Court. McDonagh faced a charge under section 4 of the Criminal Justice (Public Order) Act 1994. His brother, who was charged under sections 4 and 6, was granted legal aid; McDonagh was refused. Both men pleaded guilty, and the judge applied the Probation of Offenders Act 1907 to their cases.
McDonagh’s solicitor’s affidavit said he had no previous convictions and was seeking to avoid a criminal conviction. McDonagh swore an affidavit confirming assertions in the solicitor’s affidavit that were within his own knowledge. In a responding affidavit, a prosecuting inspector said McDonagh had at least 38 previous convictions and listed his ten most recent convictions as of the February 2014 District Court proceedings.
The inspector said he did not recall being asked about McDonagh’s record and that such information would not normally be sought in a case punishable by a fine where the judge was considering applying the Probation Act. The solicitor said he had understood from counsel’s report that McDonagh had no previous convictions. The judgment noted that the solicitor had not exhibited that report or explained whether counsel had discussed previous convictions with McDonagh.
The court described McDonagh’s affidavit as untruthful and “tantamount to perjury”, and found a lack of candour that alone justified refusing relief. It also said the charge carried a maximum fine of €500 and rejected the argument that the District Court judge had erred by refusing legal aid because aid had been granted to McDonagh’s brother. The judge noted that it was not for the High Court to grant legal aid.
The court dismissed the application for certiorari. It did not quash the District Court decision or order a fresh consideration of legal aid.