Legal Aid / Access to Courts Flashcards
1
Q
Legal Aid / Access to Courts
A
- Right of access & restrictions
- Criminal Legal Aid
- Cost & how to apply
- Two-fold test
- Duty to inform if at risk - The State (Healy) v. Donoghue
- Exceptional circumstances - Joyce v. Brady
- Civil Legal Aid
- Airey v. Ireland
- Eligibility, cost & how to apply
- Tests & limitations
- Victims, Istanbul Convention, Delays
2
Q
Right of Access to the Courts
A
- Article 40.3.1° - unenumerated “personal rights of the citizen”
- Article 40.4.2° - right to access the courts of a person alleging that they are in unlawful detention
- Article 6 of the European Convention on Human Rights - rights of access to the courts
3
Q
Restrictions of Access to the Courts
A
- The doctrine of locus standi (“place of standing”) - a person must have sufficient interest in a dispute to take a legal action in respect of it
- The doctrine of res judicata (“a matter which has been adjudicated upon”) - a matter which has already been litigated and decided may not be re-heard
- Limitation periods - Statute of Limitations 1957 (as amended).
- Isaac Wunder Order - prevents a person from pursuing a legal action without the courts’ permission
- Financial restrictions
4
Q
Financial Restrictions (access to courts)
A
-
Security for costs - a party to legal proceedings must prove they can cover the costs of the other side if they are unsuccessful
- General rule - costs follow the event - loser pays legal costs for both sides
- Not ordered as a matter of course - depends on the circumstances and type of action
-
Court fees in civil cases - payable on all pleadings and court documents
- Exception: Family law and judicial reviews on criminal matters)
- Held as constitutional in Murphy v. Minister for Justice - fees don’t even cover the cost
5
Q
Criminal Legal Aid
A
- Criminal aid is free - no contribution from the accused
- Available under Criminal Justice (Legal Aid) Act 1962
- Application to the court (usually District Court) in person, by a legal representative or in a letter to the Court Registrar
- If approved, the court provides a legal aid certificate
- Can cover representation by only a solicitor or a solicitor and barrister following the case of Carmody
6
Q
Test for Criminal Legal Aid
A
- Two-fold test, per Section 2(1) of the 1962 Act
- Insufficient means - applicant’s means insufficient to enable them to pay for their own legal representation - statement of means may be required
- Gravity of the charge test - seriousness of the case
- Per The State (Healy) v. Donoghue, the court must inform the accused of their right to legal aid when they are “at risk”
7
Q
Seriousness of the case (criminal legal aid)
A
- The court considers a possibility of the accused being imprisoned or fined
- “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”
- Road-traffic and very minor offences usually not considered serious enough
- Per Joyce v. Brady, even if the offence is not serious, the court may still grant legal aid in “exceptional circumstances” (e.g. youth, poor physical or mental health).
8
Q
Civil Legal Aid
A
- For taking or defending a civil action
- More than just advice - includes legal advice, representation in court and other duties
- No civil legal aid in Ireland prior Airey v. Ireland (1979)
- Some aid provided by lawyers on a voluntary basis, e.g. Free Legal Advice Centre (FLAC - still exists)
- Governed by the Civil Legal Aid Act 1995
9
Q
Airey v. Ireland
A
- Held that absence of legal aid violates rights under ECHR
- Art 6 - Right of access to the courts
- Art 8 - Right to family life
- Triggered creation of a civil legal aid system in Ireland
10
Q
Applications for Civil Legal Aid
A
- Applications made to Legal Aid Board (as opposed to court in Criminal legal aid)
- Nature of the case must be stated
- Some action types exclusions, per s28(9) of the 1995 Act
11
Q
Contribution to Civil Legal Aid
A
- Min €30 for legal advice & €130 for legal aid, but the Board may wave
- Can be increased based on the applicant’s disposable income
- Waved if income less than €11,500 or only social welfare
- No contribution in childcare or domestic-violence cases
- €10 for applicants for asylum services
12
Q
Tests & requirements for Civil Legal Aid
A
- Eligible action type / nature of the case, per 1995 Act
- Means test
- Merits test
- Reasonable grounds for instituting or defending the proceedings
- Reasonable likelihood of success in the proceedings
- Legal action must be the most satisfactory means of achieving the result sought
- Cost to the Board is a consideration
13
Q
Exclusions per s28(9) of the 1995 Act
A
- Defamation
- Disputes about rights to and interests in land
- Conveyancing
- Licensing
- Election petitions
- Civil matters within the jurisdiction of the District Court’s small-claims procedure
14
Q
Means test for Civil Legal Aid
A
- Disposable income of no more than €18,000
- Disposable capital of no more than €100,000
- The 1995 Act allows the Board to give legal aid or advice without reference to financial resources in certain situations (e.g. home repossession cases)
- It’s rare for the Board to decline aid based on the means test
15
Q
Merits test for Civil Legal Aid
A
Section 24 of the 1995 Act requires the Board to opine that:
- “. . . a reasonably prudent person, whose means were such that the cost of seeking such services at [their] own expense, while representing a financial obstacle to [them] would not be such as to impose undue hardship on [them], would be likely to seek such services in such circumstances at [their] own expense . . . .”
- “. . . a solicitor or barrister acting reasonably would be likely to advise [them] to obtain such services at [their] own expense.”
