Why no free legal aid for drink driving?

Going Forward

As the title says, why?

I regularly read of cases where other offenders have multiple previous convictions who are granted free legal aid, whereas a drink driver (even first time offence) cannot receive it.

johnnyskeleton

What is your source for this?

Sheldons Brain

If you can afford a car, you should be able to afford legal representation.

johnnyskeleton

Sheldons Brain wrote: »

If you can afford a car, you should be able to afford legal representation.

True, but you could always just steal a car.

Dermighty

F*ck people who drink (any amount) and drive.

Mrs W

I always wondered that myself, that yoke from foxrock that was charged with Elaine O'Haras murder is getting legal aid. Was able to put up 25k for bail tho.

If you can't afford representation then don't go around breaking the law, might rule out a lot of the silly legal challenges and appeals

hullaballoo

Proven.

Until.

Innocent.

Guilty.

Please rearrange the above words to form a well-known tenet of Irish law.

Bepolite

hullaballoo wrote: »

Proven.

Until.

Innocent.

Guilty.

Please rearrange the above words to form a well-known tenet of Irish law.

I was searching for anagrams in an attempt for a cognitive miser like myself to sound intelligent. Apparently there are none for the above phrase. Oddly when you search though this comes up:

Innocent Until Proven Guilty: Reducing Robot Shaping From Polynomial to Linear Time

I think there have been better titles in all honesty.

catallus

Guilty until proven innocent. That's the way it should be!

johnnyskeleton

It's really a syntax issue:

Innocent until proven guilty.

Innocent, until proven guilty.

Innocent!?! Until proven guilty.

Anyway, since the OP started a thread on a false premise and then failed to respond again, what shall we talk about next?

Going Forward

johnnyskeleton wrote: »

What is your source for this?

It's common knowledge.

Bepolite

catallus wrote: »

Guilty until proven innocent. That's the way it should be!

Interesting idea. I love the Q quote, "Bringing the innocent to trail would be unfair." I'm not sure it would work in practice however.

johnnyskeleton

catallus wrote: »

Guilty until proven innocent. That's the way it should be!

Bepolite

Did I imagine a Monty Python sketch about common knowledge or people say - I cant find it on Youtube. It was people wandering around some woods IIRC.

Nevermind... one of my favourites:

johnnyskeleton

Going Forward wrote: »

It's common knowledge.

Ok, well maybe you'd better go back to the source of your common knowledge because it has never been the law that legal aid isn't available for drink driving cases. It might previously have been the case that people with no convictions would be refused as they are not at risk but nowadays anyone who can't afford legal representation for a drink driving case can apply for legal aid.

Again, as already said if you own a car you probably don't qualify for legal aid.

catallus

Q was beyond excellent. He was, of course, correct. Every single person brought inside a courtroom is as guilty as sin.

Going Forward

johnnyskeleton wrote: »

Ok, well maybe you'd better go back to the source of your common knowledge because it has never been the law that legal aid isn't available for drink driving cases. It might previously have been the case that people with no convictions would be refused as they are not at risk but nowadays anyone who can't afford legal representation for a drink driving case can apply for legal aid.

Again, as already said if you own a car you probably don't qualify for legal aid.

An old neighbour of mine was arrested for it years ago, case didn't go ahead due to delays, anyway he was told he wouldn't receive FLA simply because of the charge.

He wouldn't have been a man of means either. He's my source!

catallus

In that case his solicitor was advising him in a manner which would be frowned upon by the law society. They do have rules you know!

Not to worry, these things are not enforced very well.

His solicitor just wanted to milk him for a bit of cash.

It is the way the law works.

Pat Mustard

catallus wrote: »

In that case his solicitor was advising him in a manner which would be frowned upon by the law society. They do have rules you know!

Not to worry, these things are not enforced very well.

His solicitor just wanted to milk him for a bit of cash.

It is the way the law works.

Well, at the risk of simply repeating what JohnnySkeleton has previously stated, unless the defendant had previous convictions, and was therefore at risk of a prison sentence, then free criminal legal aid would not generally be available for the defence of a drink driving charge.

Similarly, legal aid is not generally available for simple possession of cannabis, in relation to a defendant who has no previous convictions, who is not at risk of imprisonment.

Given what has been posted in the thread so far, there does not seem to be any foundation for a suggestion that the solicitor wanted to defraud his client.

catallus

^^^^
That is not what JohnnySkeleton was saying as far as I can see.


As for your post: Nonsense. Legal aid is available to every single person who chooses to avail of a solicitor in court. End of story full stop. If a solicitor speaks for the criminal he (the solicitor) gets paid.

Peregrinus

catallus wrote: »

^^^^
That is not what JohnnySkeleton was saying as far as I can see.


As for your post: Nonsense. Legal aid is available to every single person who chooses to avail of a solicitor in court. End of story full stop. If a solicitor speaks for the criminal he (the solicitor) gets paid.

B*lls. B*lls on a stick.

You apply for free legal aid and, in considering your application, the judge has to consider

(a) whether your means enable you to pay for your own legal advice; and

(b) given the seriousness of the charge , whether it is in the interest of justice that you should have legal aid in the preparation and conduct of your defence.

In considering the seriousness of the offence, the judge will look at the possibility of imprisonment or a large fine, if convicted. If neither of these seem likely or possible, it would be unusual to be granted free legal aid, but it might happen if you are ill, or very uneducated, or suffer from emotional disturbance or a learning disability, or something of the kind.

It's unusual to be granted free legal aid for most road traffic offences.

worded

Remember to drink and drive you need a car

touts

Maybe give up the booze for a while and you will be able to afford a solicitor.

Pro Hoc Vice

Going Forward wrote: »

As the title says, why?

I regularly read of cases where other offenders have multiple previous convictions who are granted free legal aid, whereas a drink driver (even first time offence) cannot receive it.

There are a number if issues a court has to consider in the granting if legal aid, the first is the means test, if the court decides the person cannot afford legal representation, if the answer is no then the court moves to the second test, is the accused at risk of a custodial sentence, ( there is no real risk of prison on a first drink driving), the court will also look at the general effect of a conviction and is there any other relevant circumstances.

But there is no set rule that drink driving does not get legal aid, it is more correct to say it generally does not get the benefit of legal aid.

The total cost of all legal aid paid for all court levels is circa €50 million a year. Which is less than the arts council.

Pro Hoc Vice

catallus wrote: »

^^^^
That is not what JohnnySkeleton was saying as far as I can see.


As for your post: Nonsense. Legal aid is available to every single person who chooses to avail of a solicitor in court. End of story full stop. If a solicitor speaks for the criminal he (the solicitor) gets paid.

Any person can apply for legal aid not every person will be granted same by the court, if legal aid is not granted then either the solicitor gets paid by accused or goes unpaid.

Going Forward

Glad I'm not the only one making a mistake about it:

http://www.boards.ie/vbulletin/showpost.php?p=74624018&postcount=21

The point was not disputed as far as I can see, so it's an easy enough mistake to make I guess.

Also on reading this page:

http://www.traceysolicitors.ie/services/driving-offences.html

One could be forgiven for thinking that as a fee is quoted with no mention of the possibility of applying for free legal aid, that legal aid is not applicable.
One could be wrong of course!

Love the funny videos BTW.

catallus

Peregrinus wrote: »

B*lls. B*lls on a stick.

You apply for free [....]

In considering the seriousness of the offence, the judge will look at the possibility of imprisonment or a large fine, if convicted. If neither of these seem likely or possible, it would be unusual to be granted free legal aid, but it might happen if you are ill, or very uneducated, or suffer from emotional disturbance or a learning disability, or something of the kind.

It's unusual to be granted free legal aid for most road traffic offences.

infosys wrote: »

There are a number if issues a court has to consider in the granting if le[....]there any other relevant circumstances.

But there is no set rule that drink driving does not get legal aid, it is more correct to say it generally does not get the benefit of legal aid.

The total cost of all legal aid paid for all court levels is circa €50 million a year. Which is less than the arts council.

Ye guys talk about this stuff as if ye read it in a book.

Peregrinus, there are so many qualifiers in your post. Firstly it is well known by the polloi that custodial sentences in this country are as rare as hens teeth. And every scrote who walks into a courtroom is well versed and primed in the art of crocodile tears, butter wouldn't melt, and lying directly to a judge. Of course every criminal claims to be ill or uneducated or whatever. Lie, lie, lie. There is no point in doing otherwise.

As for comparing the state subsidising the arts and the state subsidising criminals, that is one facetious argument if ever I heard one. Doesn't anyone see anything wrong with this picture? €50'000'000 a year????? To murderers, rapists, thieves and louts? Seriously?

The problem is is that the basic human right of legal representation is thrown around like confetti to people who milk the system for what it is worth. It undermines the legitimacy of the law.

Pro Hoc Vice

catallus wrote: »

Ye guys talk about this stuff as if ye read it in a book.

Peregrinus, there are so many qualifiers in your post. Firstly it is well known by the polloi that custodial sentences in this country are as rare as hens teeth. And every scrote who walks into a courtroom is well versed and primed in the art of crocodile tears, butter wouldn't melt, and lying directly to a judge. Of course every criminal claims to be ill or uneducated or whatever. Lie, lie, lie. There is no point in doing otherwise.

As for comparing the state subsidising the arts and the state subsidising criminals, that is one facetious argument if ever I heard one. Doesn't anyone see anything wrong with this picture? €50'000'000 a year????? To murderers, rapists, thieves and louts? Seriously?

The problem is is that the basic human right of legal representation is thrown around like confetti to people who milk the system for what it is worth. It undermines the legitimacy of the law.

So your reaction to the posters who say your post is factually incorrect is to reply with further incorrect information.

Custodial sentences are not as rare as hens teeth ask the more than 4000 people currently in custody.

My point about the cost was that as a society we rightly believe the funding of the arts council of €60 million a year is good for us all, the funding of legal aid of a lesser amount per year that protects all of society, we all remain innocent untill proven guilty.

Bepolite

People seem to think that the majority of people who go in front of the criminal courts 'get off' for one reason or another when they are actually guilty. The facts simply do not bear this out. Over 90% of people plead guilty, if we removed discretion for this we'd need to build 9 more CCJs, expand the prison system at least five fold and employ ten times as many legal professionals. Obviously I'm all for this.

Yes when a plea in mitigation is being made there is a certain sales job that goes on. How much the judge actually buys is a matter for another thread. Given that judges in this country come from practice I'd venture the amount to be quite small.

sentencing, similarly, is a completely different debate. The bottom line is joe public wants people locked up for as long as possible, at no cost and in the harshest possible conditions and a low crime rate. Those factors simply don't go together in the way many people think they do.

Pat Mustard

catallus wrote: »

^^^^
That is not what JohnnySkeleton was saying as far as I can see.


As for your post: Nonsense. Legal aid is available to every single person who chooses to avail of a solicitor in court. End of story full stop. If a solicitor speaks for the criminal he (the solicitor) gets paid.

You assert that anyone can apply for legal aid. However, not everyone will get it, because there are criteria which must apply before it will be granted. The legislation has been amended several times, but the criteria for a District Court Legal Aid Certificate are the same. Look at s.2 of the Criminal Justice (Legal Aid) Act, 1962:

2.—(1) If it appears to the District Court—

(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and

(b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it,

the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable.

I have highlighted the phrases "gravity of the charge" and "exceptional circumstances". You have completely ignored these factors, and as a result, the assertions that you have deduced are entirely incorrect and extremely misleading.

Although the Citizen's Information Board is obviously not a primary source of law, it has this commentary on situations where legal aid will not apply, (which may be useful for illustrative purposes):

In what cases is legal aid not granted?

A District Court judge will normally refuse to grant a legal aid certificate in the following circumstances:

• Where the judge is of the view that the matters before the court are not serious enough. For example, road traffic offences and other minor offences
• Where the judge is of the view that you have enough means to pay for your own legal representation
• Extradition proceedings
• Most judicial review proceedings.

Again, see the highlighted sentence, which states that if the charge is not serious enough (as is the case with many road traffic offences), an application for criminal legal aid will not be successful, generally. As we have already seen above, the legislation contains further detail, in that it specifies that legal aid will be granted if the court is satisfied there are exceptional circumstances in which legal aid should be granted in order to serve the interests of justice.

To revisit the example of a person with no previous convictions on a first drink driving charge or a first simple possession of cannabis charge, even if he is unemployed and on social welfare, he will NOT receive criminal legal aid, unless there are exceptional circumstances. The reason is that the charges are not serious enough, insofar as the defendant is not at risk of a term of imprisonment.

One of your posts suggested that the solicitor in question had misrepresented the situation in respect of legal aid, so that he could charge a fee by dishonest means. This suggestion appears to be based upon your misunderstanding of the criteria for criminal legal aid. Therefore, your suggestion is completely unfounded.

johnnyskeleton

Going Forward wrote: »

An old neighbour of mine was arrested for it years ago, case didn't go ahead due to delays, anyway he was told he wouldn't receive FLA simply because of the charge.

He wouldn't have been a man of means either. He's my source!

Well your source from years ago is out of date.

johnnyskeleton

catallus wrote: »

In that case his solicitor was advising him in a manner which would be frowned upon by the law society. They do have rules you know!

Not to worry, these things are not enforced very well.

His solicitor just wanted to milk him for a bit of cash.

It is the way the law works.

Look at it another way - if he had money to be "milked" then he shouldn't be getting legal aid anyways. The taxpayer shouldn't fund the legal expenses of someone who can afford to privately retain a lawyer just because they don't feel like paying or because it would be an inconvenience for them to pay.

Legal aid is for people who genuinely can't afford to retain a lawyer, and as said many times anyone who can afford to have a car, a few drinks or has a job can afford to pay for a solicitor if they go drink driving.

To be clear, if a person can pay a lawyer more than the lawyer would get on legal aid, not only can the lawyer ask for the private fees and refuse to act on legal aid, but he/she should do so in the interests of the taxpayer.

Zambia

Can the lawyer not represent the drink driver and when they win the case claim off the state?

Peregrinus

Zambia wrote: »

Can the lawyer not represent the drink driver and when they win the case claim off the state?

Well, they can always claim. But there's no general right to recover your costs for a successful criminal defence - nothing like the costs order that the winner in a civil case routinely gets. So in the absence of some highly unusual facts there would be no basis for such a claim.

Zambia

Peregrinus wrote: »

Well, they can always claim. But there's no general right to recover your costs for a successful criminal defence - nothing like the costs order that the winner in a civil case routinely gets. So in the absence of some highly unusual facts there would be no basis for such a claim.

Well if mr a is charged with drink driving and it goes to contest. Mr a is found not guilty so why should a have to be left with a legal bill?

Peregrinus

Zambia wrote: »

Well if mr a is charged with drink driving and it goes to contest. Mr a is found not guilty so why should a have to be left with a legal bill?

Because he retained the lawyer, and nobody else has an obligation to pay the lawyer's bill.

old_aussie

hullaballoo wrote: »

Proven.

Until.

Innocent.

Guilty.

Please rearrange the above words to form a well-known tenet of Irish law.

Guilty Until Proven Innocent

Zambia

Peregrinus wrote: »

Because he retained the lawyer, and nobody else has an obligation to pay the lawyer's bill.

You can see where I am coming from ,
if A never committed any offence,
A is not entitled to hire his own lawyer as he has funds.

Why should a be left footing a bill for something he didn't do?

old_aussie

Zambia wrote: »

You can see where I am coming from ,
if A never committed any offence,
A is not entitled to hire his own lawyer as he has funds.

Why should a be left footing a bill for something he didn't do?

Surely he can claim costs against the Crown.

As you say Zambia, why should the innocent be penalised for defending themselves.

Peregrinus

Zambia wrote: »

You can see where I am coming from ,
if A never committed any offence,
A is not entitled to hire his own lawyer as he has funds.

Why should a be left footing a bill for something he didn't do?

Why should he have to pay to insure his house against storms that he didn't cause? More to the point, why should he have to pay his accountant for dealing with the impertinent demands of the Revenue Commissioners? Why should he have to pay a fee to get a passport, when he didn't pass the legislation requiring him to have a passport in order to travel?

The point of having money is that you can buy the goods and services that you need. If the twists and turns of life mean that one of the things you need is the services of a criminal defence lawyer and you can pay for that, why wouldn't you?

It would be different, perhaps, if you could show that the state had prosecuted you maliciously or oppressively. But in the ordinary case you are prosecuted because there is a prima facie case against you and, even if you are in fact innocent, you have usually done something that contributes to the p.f. case against you. It may be something entirely innocent but, nevertheless, you did it, not someone else, and I don't see that you can say that it must be someone else's responsiblity to bear the resulting cost.

Zambia

old_aussie wrote: »

Surely he can claim costs against the Crown.

As you say Zambia, why should the innocent be penalised for defending themselves.

Oh it happens in Victoria

Zambia

Peregrinus wrote: »

Why should he have to pay to insure his house against storms that he didn't cause? More to the point, why should he have to pay his accountant for dealing with the impertinent demands of the Revenue Commissioners? Why should he have to pay a fee to get a passport, when he didn't pass the legislation requiring him to have a passport in order to travel?

The point of having money is that you can buy the goods and services that you need. If the twists and turns of life mean that one of the things you need is the services of a criminal defence lawyer and you can pay for that, why wouldn't you?

It would be different, perhaps, if you could show that the state had prosecuted you maliciously or oppressively. But in the ordinary case you are prosecuted because there is a prima facie case against you and, even if you are in fact innocent, you have usually done something that contributes to the p.f. case against you. It may be something entirely innocent but, nevertheless, you did it, not someone else, and I don't see that you can say that it must be someone else's responsiblity to bear the resulting cost.

If B crashes into As car and causes A to retain a panel beater to fix it why should A be out of pocket when B caused him to hire the panel beater.

Peregrinus

Zambia wrote: »

If B crashes into As car and causes A to retain a panel beater to fix it why should A be out of pocket when B caused him to hire the panel beater.

He doesn't have to be out of pocket. If the accident was due to B's negligence, A can sue B to recover his loss.

But to whose negligence, or other breach of duty, is an unsuccessful prosecution to be attributed?

Zambia

Peregrinus wrote: »

He doesn't have to be out of pocket. If the accident was due to B's negligence, A can sue B to recover his loss.

But to whose negligence, or other breach of duty, is an unsuccessful prosecution to be attributed?

The state ! They charged him falsely

Peregrinus

Zambia wrote: »

The state ! They charged him falsely

No, they didn't charge him "falsely" - in the absence of special facts that you're not telling us. We don't generally consider all acquittals to the result of a charge "falsely" brought, do we?

There's no analogy with the civil "duty of care". The acquittal is the result of a decisions of the jury, or the district judge, for which the state is not responsible.

Pro Hoc Vice

Zambia wrote: »

Can the lawyer not represent the drink driver and when they win the case claim off the state?

No, the rules of the District Court exclude the DPP from the risk of a cost order, neither can an accused be required to pay the cost of a successful prosecution.

Order 36

"1. Where the Court makes an order in any case of summary jurisdiction (including an order to "strike out" for want of jurisdiction) it shall have power to order any party to the proceedings other than the Director of Public Prosecutions, or a member of the Garda Síochána acting in discharge of his or her duties as a police officer, to pay to the other party such costs and witnesses' expenses as it shall think fit to award."

If the matter is indictment in the Circuit Court there is a right to get costs if the case is successfully defended.

Pro Hoc Vice

Peregrinus wrote: »

Well, they can always claim. But there's no general right to recover your costs for a successful criminal defence - nothing like the costs order that the winner in a civil case routinely gets. So in the absence of some highly unusual facts there would be no basis for such a claim.

Costs against the DPP and AGS are not allowed in the DC.

Zambia

infosys wrote: »

Costs against the DPP and AGS are not allowed in the DC.

I assume you could appeal to the circuit court and if found not guilty then claim.

Pro Hoc Vice

Zambia wrote: »

I assume you could appeal to the circuit court and if found not guilty then claim.

No, while you are in the Circuit Court on an appeal, that court is only exercising District Court jurisdiction. It's the same when appealing a CC decision to the High Court. So on a DC appeal the rules that apply are the District Court rules.

Peregrinus

infosys wrote: »

. . . If the matter is indictment in the Circuit Court there is a right to get costs if the case is successfully defended.

Not that I doubt you, but can you point me to the rule on that?

Pro Hoc Vice

Peregrinus wrote: »

Not that I doubt you, but can you point me to the rule on that?

There is in the Circuit Court no exclusion of the DPP or AGS http://courts.ie/rules.nsf/6cc6644045a5c09a80256db700399505/74e833dd9ee9420680256d94006510f9?OpenDocument unlike the DC.

I did an opinion on it once for a solicitor, who I know has got his costs on a number of CC prosecutions.