James Byrne (applicant) v The Governor of Mountjoy Prison and (by order) the Attorney General (respondents).

Attorney General's scheme - Application - Whether the scheme is available in District Court extradition proceedings.

Extradition - Habeas corpus - Whether a judge's recommendation is required for payment of fees under Attorney General's scheme.

The High Court (Mr Justice Kelly); judgment delivered 21 December 1998.

The Attorney General's scheme is an administrative scheme whereby the Attorney General voluntarily assures that the legal costs of needy persons will be met from funds at his disposal. The scheme, which has no statutory or contractual basis, applies to certain litigation in the High Court and Supreme Court which is not covered by civil or criminal legal aid. For more than 15 years, the scheme has also applied to extradition cases in the District Court. The scheme was available to the applicant in his extradition proceedings.

The High Court so held in dismissing the application for habeas corpus.

Michael O'Kennedy SC and Charles Corcoran BL for the applicant; Edward Comyn SC and Robert Barron BL for the respondents.

Mr Justice Kelly said that a warrant had been issued by a London magistrate in December 1996 for the arrest of the applicant on a charge of murder. On 5 November 1998, an assistant commissioner of the Garda Siochana authorised the execution of the warrant in the State. The applicant was arrested and brought before the Dublin District Court, where he was refused bail. On 27 November 1998, an application was made to the District Court for a recommendation that the applicant's legal costs in the extradition case be met from the Attorney General's scheme, because the applicant had no means. The judge said he would not make an order under the scheme because senior counsel had advised him that the scheme did not extend to or operate in the District Court. In his view, it followed that any proposed recommendation he might make would be ultra vires and he could not be a party to a bad order.

The case was adjourned until later the same day, when counsel for the Attorney General gave the judge the Attorney General's personal assurance that the scheme did apply to District Court extradition cases. The judge accepted the Attorney General's assurance, but said that, as far as he was concerned, the undertaking applied only to the instant case. He refused to make a recommendation as to the payment of the applicant's legal fees. He suggested that the Attorney should clarify the scheme to render it proof against any such challenge in the future. The applicant's solicitor then put six propositions to the judge: that the Attorney General had failed to prove that his scheme applied to the District Court; that the Attorney General could not ensure payment of fees under the scheme if it did not exist; that if the scheme did exist and the judge made no recommendation, the Attorney General could not ensure payment of fees; that the judge had released an accused in the same situation in another case; that the applicant in this case was also entitled to be released; and that solicitor and counsel for the applicant had no option but to withdraw from the scheme.

The applicant contended that, as he could not afford legal representation in the District Court extradition proceedings and there was no effective scheme for the State to pay for his legal representation, his detention was unlawful. He sought an order of habeas corpus. Mr Justice Kelly, in his judgment, outlined the history of the Attorney General's scheme. Its genesis was to be found in a statement made to the Supreme Court by counsel acting for the Attorney General in the case of Re Woods [1970] IR 154. He said that, where a prisoner applied for habeas corpus and was not in a position to procure legal representation, and the High Court or Supreme Court considered it proper that counsel or solicitor should be assigned on the prisoner's behalf, the Attorney General would defray the cost. Subsequently, the offer was put into a written form. The scheme applied to habeas corpus applications, bail motions, certiorari, mandamus, prohibition and extradition, which were not covered by civil or criminal legal aid. Evidence was given in the High Court that the scheme had also been applied to District Court extradition proceedings for more than 15 years.

Mr Justice Kelly said the scheme had no statutory or contractual basis but was a voluntary assurance by the Attorney General, who might expand or contract the scheme as he saw fit. He said the courts should generally accept assurances on behalf of the Attorney General without question, except in truly exceptional cases, of which this was not one.

The judge said the District Court judge was entitled to refer to the apparent lacuna in the original scheme, but once counsel had given an assurance that the scheme applied to the instant case, that should have been the end of the matter. The refusal of the District Court judge to make a recommendation concerning payment of the fees was of dubious legality and could have formed the basis for an application for judicial review, rather than for habeas corpus.

Mr Justice Kelly dealt with each of the six propositions put to the District Court. He said the scheme did not need to be proved in court as it was a voluntary assurance by the Attorney General, of which the courts had taken judicial notice for many years. The fact that the scheme had been reproduced in writing did not mean it should be read as a statute, and it was not limited to the precise wording of the scheme. The Attorney General was entitled to make a payment under the scheme without the recommendation of a judge. The failure of the Attorney General to inform the relevant authorities that the scheme had been extended to cover District Court extradition proceedings did not render the applicant's detention unlawful, and there could be no question of him being released. The decision of the applicant's solicitor and counsel to withdraw from the case was a matter for them, but their uncertainty over the payment of fees was ill-founded.

Mr Justice Kelly said the application for habeas corpus was premature and unnecessary and he dismissed the application.

Solicitors: Eugene Dunne & Co (Dunboyne) for the applicant; Chief State Solicitor for the respondents.