High Court quashes decision on man’s free legal aid application

District Court judge approved legal aid for one case, rather than two

President of the High Court, Mr Justice Nicholas Kearns. File Photograph: Alan Betson/The Irish Times

A District Court judge's decision to grant free legal aid for one case, rather than two, against a man on separate road traffic and public order charges has been quashed by the High Court.

District Judge Bryan Smyth should not have extended one free legal aid certificate on the public order charge to cover both cases and should rather have granted separate certificates for both, the President of the High Court, Mr Justice Nicholas Kearns, said.

Extension of such a certificate was a concept “unknown to law”, he said.

A solicitor who is granted a legal aid certificate is entitled to payment of €201.50 for a first appearance in cases before the District Court. A refresher fee of €50.39 is paid for each subsequent appearance.


The initial fee of €201.50 is still only payable whether two or more certificates are granted for separate cases where one is heard immediately after the other.

Certificates are granted under the 1965 Criminal Justice (Legal Aid) Regulations which state only one certificate is deemed to be granted for two or more cases heard together unless the District Judge is satisfied there is good reason for doing otherwise.

In his judgment on a judicial review challenge by solicitor Aonghus McCarthy against Judge Smyth’s decision, Mr Justice Kearns said the solicitor did not have an opportunity under the regulations to make the argument one certificate was not sufficient in this instance.

The case concerned a man charged with road traffic and public order offences which were heard in Dublin District Court in November 2012, he noted.

The appropriate course for the District Judge to adopt was to grant another certificate for the road traffic offences, Mr Justice Kearns said.

Mr McCarthy could have then made an application contending there was good reason this case was “not one for deeming two or more certificates to be treated as one only,” Mr Justice Kearns said.

Any decision on such an application would have to be rationally based and factually sustainable, he said.

However, that option was foreclosed by Judge Smyth’s decision to extend the existing certificate (on the public order charge) to cover both cases, he said. The extension of a free legal aid certificate is a concept “unknown to law”, he added.

Mr Justice Kearns remitted the matter back to the District Court for the matter to be reconsidered.