The Gazette 1993

GAZETTE

NW JUNE 1993

Winners and Losers? Legal Aid in Custody Proceedings

infringed. Gannon, J was of the opinion that while Mrs C. was apprehensive that she might not have legal aid when the petition for nullity came for hearing, she had not established this as a probability and had not suffered any wrong attributable to the Board. As there was no probability of an imminent risk of harm she was not entitled to an order of mandamus requiring the Board to adjudicate on her application. He held that the fact that she was a respondent to a nullity petition did not create any duty owed to her by any of the respondents. The validity or otherwise of her marriage did not involve the State which simply provided a forum for the resolution of such disputes. It did not oblige her or the petitioner to have recourse to the courts. In contrast, criminal matters could only be resolved in the courts as the investigation of crime was 'a matter of public duty.' Thus there was no 'obligation on the ! State to intervene in any private civil litigation so as to ensure that one party ! is as well equipped for the dispute as is ! the other.' Gannon J was of the opinion that the adoption of the Scheme of Civil Legal Aid and Advice 'does not impose any duty on the State or on the Legal Aid Board to any litigant involved in civil litigation other than to ensure that the scheme is implemented fairly to all persons and in a manner which fulfils its declared purpose.' ! | i | However, Gannon J did grant a j declaration that the Board was obliged j to consider her application within a reasonable time, that it had failed to do so and that the Board had unlawfully fettered its discretion by failing to consider the application. He held that ! 'The duty which the Legal Aid : Board has under the Scheme is a I public duty the performance of J which can be enforced if necessary and if appropriate at the instance of a person such as this applicant

by Mel Cousins*

Despite the trenchant criticism which j has been levelled at the limitations of ! the Scheme of Civil Legal Aid and Advice 1 , there have been relatively few legal challenges to the operation of the Scheme. This article outlines two recent ; successful challenges in the High Court and Supreme Court. However, we first look at two earlier cases in which the status of the Scheme was considered. E . v . E . 2 In this early case, the respondent husband argued that he was entitled to ; legal aid in accordance with the decision of the European Court of ! Human Rights in the Airey case. However, O'Hanlon J did not accept | that this contention was correct. He said that any dispute as to whether or not the State had met its obligations under the Convention of Human Rights by establishing the Scheme of Civil Legal Aid and Advice should be determined by the procedure provided for in the European Convention. Thus he held that the Convention was not directly applicable in Irish law. M.C. v. Legal Aid Board There was a considerable gap until the next reported challenge to the Scheme in M. C. v. Legal Aid Board in 1990\ In this case the Board had refused to adjudicate on Mrs C's application for legal aid. Due to the pressure of applications and the inadequate funding received by the Board, only the most urgent applications were considered. The applicant's husband had petitioned for a nullity but as the proceedings were not yet listed for hearing the Board considered that there was insufficient urgency about the application to warrant considering it at that stage. The applicant argued that she was entitled to have her application considered under the terms of the Scheme itself and that her constitutional right of access to the courts had been

Mel Cousins

argument that there was a constitutional right to financial support for civil litigation involving another citizen. Gannon J's decision on the constitutional point was probably unnecessary since he had already found that the applicant had not established an imminent risk of harm and thus, even if a constitutional right to legal aid existed, it is unlikely that State could have been considered to be in breach of any duty to the applicant. However, the distinction drawn between the State's involvement in criminal and civil litigation can be criticised. The courts are the only forum in which the validity of the applicant's marriage could be decided on and once the validity of the marriage was called into question she was obliged to go to court. If the State provides that issues can -only be adjudicated on in court (as it does in relation to nullity), it is somewhat unreal to say that the State has no involvement in subsequent litigation. The question as to whether there was a right to legal aid under the Scheme was somewhat unclear from the judgment. The Board had argued that the scheme was discretionary. While Gannon J held that the duty of the Board to operate the Scheme correctly was a public duty enforceable where necessary by 195

Thus the court strongly rejected the