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Judge revokes legal aid

2

Comments

  • #32
    Pumpkinseeds
    Closed Accounts Posts: 8,635 ✭✭✭Pumpkinseeds


    Dravokivich wrote: »
    We know nothing of the circumstances of his going abroad other than he did it. Do we really need to prod deep enough to get the costings for it and where in fact he went when he went abroad and how long for along with who/when it was paid for? Cancelling a holiday doesn't refund the money to be spent on going away either.

    His aid was granted on the basis of his available income, and so it should remain on the basis of his available income. If he's squandering and wasting time in court proceedings, he should be charged accordingly. Not have his legal aid revoked, at the expense of a just trial.

    Yes, I think the judge should probe into his income. He stated that his only source of income was 188 euro per week. If all criminals were honest about their funds we wouldn't need the CAB. Criminals not turning up in court are taking the proverbial. They know what date they are due in court and it wastes the courts time if they aren't present, haven't notified the court that they won't be present and results in a Judge having to issue a bench warrant for their arrest.

    Not to mention the additional costs involved in arranging another date for their cases to be heard. I'm assuming that their legal aid solicitor will still have to be paid for being in court, even though their client failed to attend. That's before you even open the whole can of worms about how an unemployed criminal, father of 3 can afford a foreign holiday.


  • #33
    Pumpkinseeds
    Closed Accounts Posts: 8,635 ✭✭✭Pumpkinseeds


    IrishFeeney92 wrote: »
    Maybe he'll do it for free!!
    I doubt it, have you seen the break down of fees paid to some of the legal aid solicitors in this country:D


  • #34
    Cody Pomeray
    Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    ledonb wrote: »
    If there is money in the bank, no matter how long it has been saved up
    This man's application for legal aid had only heard two days before his trip, by which time the holiday was obviously have been paid for.

    Look lets save some time here. If the DJ in this case maintains his refusal to grant legal aid when the accused comes back before the court, or if another judge of the district court rules the application to be res judicata, then I don't believe the accused will have difficulty in, at the very least, seeking an order of certiorari quashing the District Judge's decision.

    In short, if he adheres to this decision, the Judge is likely to be wasting the court's time and the taxpayer's money.
    tmc86 wrote: »
    It should be an intimidating place (provided they have done something wrong) because that's where you get your sentence.
    Oh for God's sake. A court's function is to determine justice, not solely to hand down sentences. Matters of law are not pre-determined. A party to an action or a prosecution ought to feel confident that the Court is willing and able to hear the case fairly, and as such an accused must never feel intimidated.


  • #35
    Potential-Monke
    Registered Users, Registered Users 2 Posts: 15,098 ✭✭✭✭Potential-Monke


    Cody, i get where you're coming from, and i know all too well about the Judicial System and Legal Aid. However, there is no denying that the Judge made the right call here. How anyone can apply and get legal aid and then take a holiday 2 days later and expect to get away with it is beyond me. And i'd be 100% positive that that Judge has dealt with that male (in the OP) enough times to know what he's like.

    If there is a challenge afterwards, fine, let there be one. The DJ's actions highlighted the farce that is the legal aid system, and even if it costs more in the long run, it has brought to light said farce.

    And aside from genuine people caught on the wrong side of the law, i've never seen a Judge look for a statement of means from a "regular" criminal.


  • #36
    Boombastic
    Closed Accounts Posts: 6,496 ✭✭✭Boombastic


    If anything this shows their contempt of the court, they should be arrested at the airport and their asses hauled to jail. They couldn't be bothered attending because a holiday is more important. Aside from the fact that legal aid was granted, his lifestyle of crime is being funding by the social welfare.


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  • #37
    Cody Pomeray
    Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    Potential-Monke wrote: »
    If there is a challenge afterwards, fine, let there be one. The DJ's actions highlighted the farce that is the legal aid system, and even if it costs more in the long run, it has brought to light said farce.
    But it's not just a farce, it's law. Judicial activism of this nature would be inappropriate. Political protests are not to be dispatched from the bench of the district court.

    I don't believe the judge was trying to make a point about legal aid. I think he was just offended that the accused individuals had gone to Santa Ponsa instead of showing respect to his court. I think he made some comments that he hadn't fully thought out, and I hope for the sake of the accused and for the judge's ego, and for the sake of the taxpayer that the district judge reconsiders his decision before any challenge is made.

    Lets face it. Even in civil actions (where although determined differently to criminal prosecutions, you might argue the concerns about constitutional protections are in fact diminished) a party can be on a gross salary of €30k and still come comfortably within the income limits for legal aid.

    Where does this leave us? In four places

    1. That the legal aid scheme must apply to individuals who, although they are on low income at the commencement of a prosecution, are not quite living hand to mouth. They are not well off, but they need not be destitute either.
    2. That revoking legal aid because the accused appears to have undertaken an expenditure which, having been committed prior to his application for legal aid, may not have affected his eligibility, is irrational.
    3. More seriously, this suggests a disregard for fair procedures by the District Judge, which is adequate to meet the test for relief for the accused by way of certiorari in a judicial review hearing.
    4. More seriously again, this is a flippant and a rash manner of dealing with an accused person's constitutional rights.


  • #38
    Pumpkinseeds
    Closed Accounts Posts: 8,635 ✭✭✭Pumpkinseeds


    Cody Pomeray wrote: »
    But it's not just a farce, it's law. Judicial activism of this nature would be inappropriate. Political protests are not to be dispatched from the bench of the district court.

    I don't believe the judge was trying to make a point about legal aid. I think he was just offended that the accused individuals had gone to Santa Ponsa instead of showing respect to his court. I think he made some comments that he hadn't fully thought out, and I hope for the sake of the accused and for the judge's ego, and for the sake of the taxpayer that the district judge reconsiders his decision before any challenge is made.

    Lets face it. Even in civil actions (where although determined differently to criminal prosecutions, you might argue the concerns about constitutional protections are in fact diminished) a party can be on a gross salary of €30k and still come comfortably within the income limits for legal aid.

    Where does this leave us? In four places

    1. That the legal aid scheme must apply to individuals who, although they are on low income at the commencement of a prosecution, are not quite living hand to mouth. They are not well off, but they need not be destitute either.
    2. That revoking legal aid because the accused appears to have undertaken an expenditure which, having been committed prior to his application for legal aid, may not have affected his eligibility, is irrational.
    3. More seriously, this suggests a disregard for fair procedures by the District Judge, which is adequate to meet the test for relief for the accused by way of certiorari in a judicial review hearing.
    4. More seriously again, this is a flippant and a rash manner of dealing with an accused person's constitutional rights.
    Surely the accused is the one showing a disregard for fair proceedure by not attending court and not notifying his legal aid solicitor that he wouldn't be attending court. The fact that the system is set up in the criminals favour, therefore putting the Judge in an awkward position, shows that changes need to be made to the system. I really don't see why weekly deductions can't be made from a person's social welfare payments to cover their legal aid costs.


  • #39
    Cody Pomeray
    Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    Pumpkinseeds wrote: »
    Surely the accused is the one showing a disregard for fair proceedure by not attending court..
    It isn't always necessary for a person to attend. We don't know what the details of the half a dozen cases were.

    In cases where an accused does not attend, the practice should be to issue a bench warrant. Not to cut off a man's ability to defend his liberty next time he comes before the court.
    I really don't see why weekly deductions can't be made from a person's social welfare payments to cover their legal aid costs.
    The natural implication there would be that social welfare payments endow an individual with the capacity to meet his basic needs and then pay legal fees. Most people availing of social welfare will never come before a judge in a criminal case, therefore, the theory goes, we should cut welfare rates.


  • #40
    wandatowell
    Registered Users, Registered Users 2 Posts: 8,433 ✭✭✭wandatowell


    As bad as things are, Judges must be as frustrated as the ordinary person is with the legal system in this country


  • #41
    Pumpkinseeds
    Closed Accounts Posts: 8,635 ✭✭✭Pumpkinseeds


    Cody Pomeray wrote: »
    It isn't always necessary for a person to attend. We don't know what the details of the half a dozen cases were.

    In cases where an accused does not attend, the practice should be to issue a bench warrant. Not to cut off a man's ability to defend his liberty next time he comes before the court.

    The natural implication there would be that social welfare payments endow an individual with the capacity to meet his basic needs and then pay legal fees. Most people availing of social welfare will never come before a judge in a criminal case, therefore, the theory goes, we should cut welfare rates.

    As you said, we don't know the details of the other cases, however we don't know if the individual has a history of failing to attend court, or not. I think the vast majority would agree that there needs to be a review of legal aid. I've heard far to many cases of career criminals playing the system. I only have to look at the criminal court listings in my own county to see the same members of the same families, often several on the same day, time after time.


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  • #42
    Nonoperational
    Registered Users, Registered Users 2 Posts: 7,401 ✭✭✭Nonoperational


    Great stuff.

    To be honest, if I was due in court in 2 days I'd cancel the ****ing holiday... Being in court would be such a big event in my life I'd not be able to enjoy a holiday at all. These scumbags that think they can do what they want and get the state to finance a big part of it need to be sorted out.


  • #43
    wicklowstevo
    Banned (with Prison Access) Posts: 919 ✭✭✭wicklowstevo


    <snip>


  • #44
    hatrickpatrick
    Registered Users, Registered Users 2 Posts: 17,798 ✭✭✭✭hatrickpatrick


    shruikan2553 wrote: »
    I cant wait to see how people defend this! (The people going on holidays that is, not the removal of free legal aid)

    Im sure "everyone is entitled to a holiday now and again" will be one to come up

    Not so much that, but if you're accused of something IMO you shouldn't pay any legal costs whatsoever until and unless found guilty. If you're not found guilty, whoever brought the case should pay the lot, whether that be the state or a private citizen.


  • #45
    seligehgit
    Registered Users, Registered Users 2 Posts: 9,287 ✭✭✭seligehgit


    Fair play to the judge,common sense at last!


  • #46
    Guy:Incognito
    Registered Users, Registered Users 2 Posts: 38,227 ✭✭✭✭Guy:Incognito


    There shouldnt be free legal aid. There should be a legal aid contribution. Ie the defendant is provided the lawyer same as now but has to contribute as much funds as possible leaving them with whatever funds they need to live ( bills/ food etc)


  • #47
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Cody Pomeray wrote: »
    A couple of things to say.

    1. It isn't clear whether these were civil or criminal cases
    2. Some people find the courtroom experience incredibly intimidating. Haughty, unpredictable junior Judges tend to aggravate the perception of the courts as a daunting place to do business. Parties say 'I'm going on holiday' but really they are normal, law abiding people and are just terrified by being there.
    3. A legal bill can sometimes bear no resemblance at all to a holiday. In my earlier student days, I remember passing a perfectly comfortable week in Biarritz on about €150, whereas legal fees could be multiples of that and far beyond the reach of your average Ryanair customer.

    If the individual loses his case, or if he had a legitimate basis for taking or responding to an action, then I think he ought to appeal the judge's decision.

    Why? There are plenty of cases whereby there is no necessity to turn up at court, so long as you are represented.

    I think you missed the word accused in the headline, and as legal aid would not be given for a minor civil matter or normally for a minor criminal matter we can correctly assume these are relatively serious criminal matters. So also as the matters did not go ahead with out the accused we can assume their attendance was mandatory.

    Legal aid fees for the district court are in the low hundreds for a case, many solicitors will run district court criminal matters for a couple of hundred euros, so if the state is paying then the person is saying they can not pay even a few hundred euro to defend them selves, so how can they afford even a cheap holiday.


  • #48
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Cody Pomeray wrote: »
    I am not talking about this particular case - reports say half a dozen such cases came in front of the court, and legal aid was revoked.

    If I could just get across one point, it would be this. What may look like a popular and common sense move may actually have been reactionary and improper on behalf of the District Judge. Those who can show they are of insufficient means, and who are denied legal representation pursuant to their constitutional and European rights would appear, at first glance, to have a strong case for making the appeal that the conviction was unsafe.

    One thing a person has to show is lack of means, if a person comes before the court they fill in a form setting out income and expenditure, if a person brought this expenditure of a holiday before the court and was granted legal aid no problem, the issue here is that after being informed of the low means then the court is informed about the holiday, so the decision is entirely correct, even if a parent was paying for the holiday why did they instead pay for the legal fees.


  • #49
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Cody Pomeray wrote: »
    Legal aid has been unsatisfactorily tested in the Irish Courts in respect of the European Convention, however both the European Convention and the Irish Constitutional case law do, in fact, indicate the necessity of being able to challenge and raise evidence with publicly provided legal representation, especially in terms of criminal cases, where a party is financially embarrassed. There can be no absolute prohibition, and I would venture that there may be no absolute revocation on such flimsy grounds as one party to a case being on holiday, the circumstances of which are not known to the court.


    Spend enough time in a court room and you'll soon make a few observations - judges are human, and are prone to genuine mistakes - and there is nothing intimidating about being there. The courts are a public institution that are open to and exist for the benefit of the public. They should never be intimidatory.

    Both the Irish and the european courts have upheld that legal aid is not an automatic right there is a two pronged test 1 the interests of justice 2 inability to pay.

    This case is about not fully disclosing means to the court. It will be open to any of the accused on the next date to address the court on legal Aid and their expenditure, the Court can ask AGS to look into the means of the accused. The accused can be cross examined as to his means and the judge when all the facts are before can uphold his decision or reinstate legal aid. The judge based on the information before him made the correct decision.


  • #50
    Cody Pomeray
    Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    infosys wrote: »
    I think you missed the word accused in the headline, and as legal aid would not be given for a minor civil matter or normally for a minor criminal matter we can correctly assume these are relatively serious criminal matters.
    Yes, that's right. I had read an article on another site which had referred to 'defendants'. I would repeat my opinion that since these are criminal matters, this appears to me to add to the seriousness of revoking criminal legal aid, since I would suggest there are stronger constitutional concerns.
    infosys wrote: »
    One thing a person has to show is lack of means, if a person comes before the court they fill in a form setting out income and expenditure, if a person brought this expenditure of a holiday before the court and was granted legal aid no problem, the issue here is that after being informed of the low means then the court is informed about the holiday, so the decision is entirely correct, even if a parent was paying for the holiday why did they instead pay for the legal fees.
    I'm not being flippant but this has been replied to already, in this relatively short thread.

    The application for legal aid was heard two days before one accused individual went on holiday. Now however that individual came to have been able to travel, the simple fact is that it had already been paid for, whether by himself when he had been in employment, or by another person in the form of a gift. The relevance of your point is diminished by way of the fact that the accused could hardly have planned and paid for the trip after his application for legal aid.
    infosys wrote: »
    This case is about not fully disclosing means to the court. It will be open to any of the accused on the next date to address the court on legal Aid and their expenditure
    And as I have said, I hope this happens.

    My sole point here is that the court must agree to re-examine an application when a fresh application for legal aid is made. If this judge refuses to re-examine an application for legal aid, or if another judge decides that the application is res judicata and that he cannot overturn the decision of another judge (which, to me, seems like a prudent position to take) then this appears to open the door to an application for leave to seek a review.

    As I have been saying in my last few posts, I think it is best if the judge reflects on his decision, and agrees to re-examine the applicants' applications for legal aid. Sticking to any revocation in such circumstances would be entirely inappropriate.


  • #51
    DEFTLEFTHAND
    Registered Users, Registered Users 2 Posts: 16,499 ✭✭✭✭DEFTLEFTHAND


    Maybe this medical card thing can be monitored also. It's not fair that Dole Jockeys have such access. I've no health insurance, I if get ill I Die.


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  • #52
    Rayne Wooney
    Registered Users, Registered Users 2 Posts: 14,134 ✭✭✭✭Rayne Wooney


    Oh woe is he, having to go into an intimidating courtroom. If only this model citizen hadnt committed a crime in the first place...


  • #53
    michael999999
    Banned (with Prison Access) Posts: 7,771 ✭✭✭michael999999


    It seems solicitors are getting worried one of there unvouched and unchecked money streams may be under threat!


  • #54
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Cody Pomeray wrote: »
    Yes, that's right. I had read an article on another site which had referred to 'defendants'. I would repeat my opinion that since these are criminal matters, this appears to me to add to the seriousness of revoking criminal legal aid, since I would suggest there are stronger constitutional concerns.

    I'm not being flippant but this has been replied to already, in this relatively short thread.

    The application for legal aid was heard two days before one accused individual went on holiday. Now however that individual came to have been able to travel, the simple fact is that it had already been paid for, whether by himself when he had been in employment, or by another person in the form of a gift. The relevance of your point is diminished by way of the fact that the accused could hardly have planned and paid for the trip after his application for legal aid.
    And as I have said, I hope this happens.

    My sole point here is that the court must agree to re-examine an application when a fresh application for legal aid is made. If this judge refuses to re-examine an application for legal aid, or if another judge decides that the application is res judicata and that he cannot overturn the decision of another judge (which, to me, seems like a prudent position to take) then this appears to open the door to an application for leave to seek a review.

    As I have been saying in my last few posts, I think it is best if the judge reflects on his decision, and agrees to re-examine the applicants' applications for legal aid. Sticking to any revocation in such circumstances would be entirely inappropriate.

    As the accused was not in court when LA was withdrawn, it would be normal for the solicitor to on the next occasion to reapply as the accused will be there. The accused can and will explain himself at that stage and if the Judge is satisfied the accused does not qualify for LA under the means test then he would be quite correct in saying no LA. the evidence before the court when LA was withdraw would in my opinion have been enough for the court to withdraw LA, as the judge would say none of this was before me when the application was made, why was I not told the accused had enough money to book a holiday 2 days after telling the court he did not have enough money to pay for a solicitor.


  • #55
    Jumboman
    Banned (with Prison Access) Posts: 1,292 ✭✭✭Jumboman


    michael999999 wrote: »
    Are you a solicitor?

    Maybe if these guys had to pay for there own defence, it might actually put them off commiting crime. The solicitors are bigger leeches than the defendants in most cases.

    Land into court for a stream of burglarys, get a suspended sentence and there legal fees paid for. Sure why wouldn't they commit the crimes they do!


    Good point most solicitors are gangsters themselves.


  • #56
    Cody Pomeray
    Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    infosys wrote: »
    As the accused was not in court when LA was withdrawn, it would be normal for the solicitor to on the next occasion to reapply as the accused will be there. The accused can and will explain himself at that stage and if the Judge is satisfied the accused does not qualify for LA under the means test then he would be quite correct in saying no LA.
    I'm not sure what you're arguing with here. I am criticizing a belief that the man is not entitled to legal aid, or that his prosecution can proceed without legal aid being re-examined. To that extent, all I am saying is that the judge must re-examine, although I could foresee a problem whereby the application for LA comes before another judge of the district court, in which case he cannot over-rule Judge O'Kelly. Identical cases to that, involving legal aid rejections, have come before the High Court.


  • #57
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Cody Pomeray wrote: »
    I'm not sure what you're arguing with here. I am criticizing a belief that the man is not entitled to legal aid, or that his prosecution can proceed without legal aid being re-examined. To that extent, all I am saying is that the judge must re-examine, although I could foresee a problem whereby the application for LA comes before another judge of the district court, in which case he cannot over-rule Judge O'Kelly. Identical cases to that, involving legal aid rejections, have come before the High Court.

    I am not arguing anything, just pointing out what happened, in this case application for legal aid no mention in that application of ability to afford a holiday, 2 days later accused books holiday, on next day in court accused not in court. The solicitor explains why judge says that does not add up, I did not have all the facts when I gave legal aid so legal aid withdrawn. There is nothing stoping the accused reapply and as long as the reason for a refusal is the court believing that the accused has sufficient means then no problem. I suppose I am saying there is no legal problem with the judges decision from what I can see. The court is not saying you can not go on holiday if you are on legal aid the court is saying that is relevant information the court should have been given when making the decision.


  • #58
    Cody Pomeray
    Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    infosys wrote: »
    I am not arguing anything, just pointing out what happened, in this case application for legal aid no mention in that application of ability to afford a holiday, 2 days later accused books holiday
    No. 2 days later accused goes on holiday. We don't know the circumstances of how the accused came to have a holiday organized - I've been on plenty of family holidays as an undergrad which I couldn't have paid for myself, haven't most people? Or maybe the accused paid for it when he was in employment. Who knows? Not us. And presumably not the DJ either.
    There is nothing stoping the accused reapply and as long as the reason for a refusal is the court believing that the accused has sufficient means then no problem.
    1. There is something stopping the accused from reapplying if he happens to arrive in the district court of a judge who is not Judge O'Kelly: the principle of res judicata.
    2. All I have been saying is that Judge O'Kelly must reconsider the application on the next day. The revocation of legal aid is not concluded, and people should not be under that illusion. It's very simple.

    I am just repeating myself here and I struggle to see what point you are making aside from repeating yoruself and ignoring the above.


  • #59
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Cody Pomeray wrote: »
    No. 2 days later accused goes on holiday. We don't know the circumstances of how the accused came to have a holiday organized - I've been on plenty of family holidays as an undergrad which I couldn't have paid for myself, haven't most people? Or maybe the accused paid for it when he was in employment. Who knows? Not us. And presumably not the DJ either.

    1. There is something stopping the accused from reapplying if he happens to arrive in the district court of a judge who is not Judge O'Kelly: the principle of res judicata.
    2. All I have been saying is that Judge O'Kelly must reconsider the application on the next day. The revocation of legal aid is not concluded, and people should not be under that illusion. It's very simple.

    I am just repeating myself here and I struggle to see what point you are making aside from repeating yoruself and ignoring the above.

    OK I will try to be clear, the DJ did not know the circumstances of the holiday, when it came to his attention he said no one told me about this. So on the that basis its withdrawn.

    How can he apply in a District Court other than that for District 13, I believe, the matter stands adjourned to a future sitting I assume the Judge O'Kelly will be sitting on that day. So I don't really know what you are saying. When they next appear they will reapply, the Judge will have the full facts, if the judge did not revoke LA but indicated he may on the next day depending on evidence then no issue at all.

    The point I'm making is that I believe the judge was correct in these circumstances to either withdraw or question LA.

    Currently in District 13 there is one Judge appointed and one vacancy, I assume that the second judge is a touring judge currently. If this case is mention for one reason before the second judge in District 13 he will not or should not make a decision as DJ Kelly retains jurisdiction over the case.


  • #60
    Jumboman
    Banned (with Prison Access) Posts: 1,292 ✭✭✭Jumboman


    infosys wrote: »
    One thing a person has to show is lack of means, if a person comes before the court they fill in a form setting out income and expenditure, if a person brought this expenditure of a holiday before the court and was granted legal aid no problem, the issue here is that after being informed of the low means then the court is informed about the holiday, so the decision is entirely correct, even if a parent was paying for the holiday why did they instead pay for the legal fees.


    Years ago I was up in court and got free legal aid but I didnt have to sign anything. Maybe you only have to sign a form if its a serious charge ?


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  • #61
    Cody Pomeray
    Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    infosys wrote: »
    Currently in District 13 there is one Judge appointed and one vacancy, I assume that the second judge is a touring judge currently. If this case is mention for one reason before the second judge in District 13 he will not or should not make a decision as DJ Kelly retains jurisdiction over the case.
    Yes the second judge in Limerick is Judge McCarthy who is in Limerick on a semi permanent basis because they haven't managed to get a second fixed judge yet.

    My problem here is that you're dismissing all sorts of things as some sort of certainties, and all I am doing is suggesting what Judge O'Kelly ought to do (and because he seems like a reasonable man, he will do), and what an alternative DJ cannot do, in my opinion, which is to grant legal aid for the 6 accused individuals.


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