First Previous (PART II Courts-Martial Appeal Court)

19 1983

COURTS-MARTIAL APPEALS ACT, 1983

PART III

Legal Aid

Definitions for Part III .

25. —In this Part of this Act—

legal aid certificate” means a legal aid (preliminary proceedings) certificate, a legal aid (court-martial) certificate, a legal aid (Courts-Martial Appeal Court) certificate or a legal aid (Supreme Court) certificate;

the prescribed authority” means the person prescribed by regulations under section 33 of this Act to be the prescribed authority for the purposes of this Part of this Act.

Legal aid (preliminary proceedings) certificate.

26. —Where—

(a) a person (in this section referred to as “the accused”) is charged with an offence against military law, and

(b) rules made by the Minister under section 240 of the Act of 1954 permit the accused to be represented by counsel or by a solicitor at the investigation of the charge or the taking down of the evidence pursuant to such rules (or at both such investigation and such taking down of evidence),

then, if it appears to the prescribed authority—

(i) that the means of the accused are insufficient to enable him to obtain legal aid, and

(ii) 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 at the investigation of the charge or the taking down of the evidence (or at both such investigation and such taking down of evidence),

the prescribed authority shall, on application being made to him in that behalf, grant in respect of the accused a certificate for free legal aid (in this Part of this Act referred to as “a legal aid (preliminary proceedings) certificate”) and thereupon the accused shall be entitled to such aid and to have a solicitor and (where he is charged with a capital offence or murder and the prescribed authority thinks fit) counsel assigned to him for such investigation or such taking down of evidence (or both such investigation and such taking down of evidence) in such manner as may be prescribed by regulations under section 33 of this Act.

Legal aid (court-martial) certificate.

27. —(1) Where—

(a) an order is made for the trial by court-martial of a person (in this section referred to as “the accused”), and

(b) a certificate for free legal aid (in this Part of this Act referred to as “a legal aid (court-martial) certificate”) is granted in respect of the accused by the prescribed authority,

the accused shall be entitled to free legal aid in the preparation and conduct of his defence at the trial and to have a solicitor and (where the prescribed authority thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.

(2) A legal aid (court-martial) certificate shall be granted in respect of the accused if (but only if)—

(a) application is made therefor,

(b) it appears to the prescribed authority that the means of the accused are insufficient to enable him to obtain legal aid, and

(c) either—

(i) the trial is on a capital charge or a charge of murder, or

(ii) it appears to the prescribed authority that, having regard to all the circumstances of the case (including the nature of such defence, if any, as may have been set up), it is essential in the interests of justice that the accused should have legal aid in the preparation and conduct of his defence at the trial.

Legal aid (Courts-Martial Appeal Court) certificate.

28. —(1) Where—

(a) a person (in this section referred to as “the accused”) is convicted by a court-martial, and

(b) a certificate for free legal aid (in this Part of this Act referred to as “a legal aid (Courts-Martial Appeal Court) certificate”) is granted in respect of the accused by the prescribed authority or under subsection (3) of this section,

the accused shall be entitled to free legal aid in the preparation and conduct of an appeal against the finding or sentence of the court-martial or against both such finding and such sentence and to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.

(2) A legal aid (Courts-Martial Appeal Court) certificate shall be granted in respect of the accused if (but only if)—

(a) application is made therefor,

(b) it appears to the prescribed authority that the means of the accused are insufficient to enable him to obtain legal aid, and

(c) either—

(i) the conviction is of a capital offence or murder, or

(ii) it appears to the prescribed authority that, by reason of the serious nature of the offence or of exceptional circumstances, it is essential in the interests of justice that the accused should have legal aid in the preparation and conduct of an appeal.

(3) Where the accused is refused a legal aid (Courts-Martial Appeal Court) certificate by the prescribed authority, he may apply for the certificate to the Court either—

(a) by letter addressed to the registrar of the Court setting out the facts of the case and the grounds of the application, or

(b) to the Court itself,

and the Court shall grant the certificate if (but only if)—

(i) it appears to the Court that the means of the accused are insufficient to enable him to obtain legal aid, and

(ii) either—

(I) the conviction is of a capital offence or murder, or

(II) it appears to the Court that, by reason of the serious nature of the offence or of exceptional circumstances, it is essential in the interests of justice that the accused should have legal aid in the preparation and conduct of an appeal.

Legal aid (Supreme Court) certificate.

29. —(1) Where—

(a) a person (in this section referred to as “the accused”) is charged with an offence against military law,

(b) an appeal is brought to the Supreme Court from a determination of the Court in relation to the offence or the punishment (if any) imposed in respect thereof, and

(c) a certificate for free legal aid (in this Part of this Act referred to as “a legal aid (Supreme Court) certificate”) is granted in respect of the accused by the Court or under subsection (3) of this section,

the accused shall be entitled to free legal aid in the preparation and conduct of his case in relation to the appeal and to have a solicitor and counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.

(2) A legal aid (Supreme Court) certificate shall be granted if (but only if)—

(a) application is made therefor, and

(b) it appears to the Court that the means of the accused are insufficient to enable him to obtain legal aid.

(3) Where the accused is refused a legal aid (Supreme Court) certificate by the Court, he may apply for the certificate to the Supreme Court either—

(a) by letter addressed to the registrar of the Supreme Court setting out the facts of the case and the grounds of the application, or

(b) to the Supreme Court itself,

and the Supreme Court shall grant the certificate if (but only if) it appears to that court that the means of the accused are insufficient to enable him to obtain legal aid.

Payment of expenses of legal aid.

30. —(1) Where a legal aid (preliminary proceedings) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the person's case in relation to the proceedings to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.

(2) Where a legal aid (court-martial) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the defence to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.

(3) Where a legal aid (Courts-Martial Appeal Court) certificate or a legal aid (Supreme Court) certificate has been granted in respect of a person, any fees, costs or other expenses properly incurred in preparing and conducting the person's case in relation to the appeal to which the certificate relates shall, subject to regulations under section 33 of this Act, be paid out of moneys provided by the Oireachtas.

Restriction of section 18 .

31. —(1) Where a legal aid (preliminary proceedings) certificate or a legal aid (court-martial) certificate has been granted in respect of a person, the Court shall not have jurisdiction under section 18 of this Act to award costs to the person in respect of proceedings in relation to which the certificate applies.

(2) Where a legal aid (Courts-Martial Appeal Court) certificate has been granted in respect of a person, the Court shall not have jurisdiction under section 18 of this Act to award costs to the person in respect of court proceedings in relation to which the certificate applies.

Statement as to means.

32. —Before a person is granted a legal aid certificate he may be required by the prescribed authority, the court or the judge, as the case may be, granting the certificate to furnish a written statement in such form as may be prescribed by the Minister by regulations under section 33 of this Act about matters relevant for determining whether his means are insufficient to enable him to obtain legal aid.

Regulations.

33. —(1) The Minister may make regulations for carrying this Part of this Act into effect and the regulations may, in particular, prescribe—

(a) the form of legal aid certificates,

(b) the rates or scales of payment of any fees, costs or other expenses payable out of moneys provided by the Oireachtas pursuant to such certificates, and

(c) the manner in which solicitors and counsel are to be assigned pursuant to such certificates.

(2) Regulations under this section in relation to the matters specified in paragraph (b) of subsection (1) of this section shall not be made without the consent of the Minister for Finance.

(3) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to anything previously done thereunder.

Penalty for false or misleading statements.

34. —(1) A person who, for the purpose of obtaining free legal aid under this Part of this Act, whether for himself or some other person, knowingly makes a false statement or false representation either verbally or in writing or knowingly conceals any material fact shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100 or to imprisonment for a term not exceeding six months or to both.

(2) Upon conviction of a person of an offence under this section, the court by which the person is convicted may, if in the circumstances of the case the court so thinks fit, order the person to pay to the Minister the whole or part (as the court considers appropriate) of any sum paid under section 30 of this Act in respect of the free legal aid in relation to which the offence was committed, and any sum paid to the Minister pursuant to this section shall be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.