S.I. No. 206/2008 - Courts-Martial (Legal Aid) Regulations 2008

1. From the date these Regulations are made to 31 August 2008

€794

2. From 1 September 2008

€814

The Minister for Finance consents to the making of the foregoing Regulations in so far as they are in relation to rates or scales of payment of fees, costs or expenses.

GIVEN under the Official Seal of the Minister for Finance

2 July 2008

BRIAN LENIHAN,

Minister for Finance.

GIVEN under my Official Seal,

2 July 2008

WILLIE O’DEA,

Minister for Defence.

EXPLANATORY NOTE

(This is not part of the Instrument and does not purport to be a legal interpretation)

These Regulations prescribe the procedure for the grant in certain cases of free legal aid to persons charged with, or convicted of, offences against military law. They also prescribe the scale of fees and expenses payable in such cases.

3. Rank

4. Unit

5. Home Address

6. State whether single, married, widow or widower

7. Weekly income from all sources €

8. If you pay rent or your pay is subject to deduction for accommodation please state the weekly amount €

9. If you own your own house, please state amount (if any) of

(

a

) ground rent (annual)

(

b

) monthly mortgage repayments.

10. What persons do you support—

State ages of any school going children

11. What money have you, or is likely to be available to you, that could be used for obtaining legal aid at your own expense?

12. What other assets have you that could be used for obtaining legal aid at your own expense?

13. If you are under 21 years of age, are your parents or guardian able and willing to provide legal aid for you or to assist you in providing yourself with legal aid?

DECLARATION*

I declare that to the best of my knowledge and belief the above particulars are true.

*WARNING— If any person in furnishing this statement of means knowingly makes any false statement or false representation he or she is liable, on summary conviction, to a fine not exceeding €2000 or to imprisonment for a term not exceeding 6 months or to both.

DATE:.................................... SIGNATURE.............................................................

Regulation 11.

SCHEDULE 3

SOLICITORS’ FEES IN COURT-MARTIAL CASES (OTHER THAN CASES TO WHICH REGULATION 11(2)(

a

) APPLIES) AND CASES IN THE COURTS-MARTIAL APPEAL COURT AND THE SUPREME COURT

Type of hearing(1)

One-day hearing(2)

Each additional day(3)

Court-martial hearing in relation to—(1)a charge not being a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life (2)a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life in which — (a)1 counsel only is assigned(b)2 counsel are assigned

The same as junior counsel’s feeThe same as junior counsel’s feeThe same as senior counsel’s fee

73% of junior counsel’s refresher74% of junior counsel’s refresher48% of senior counsel’s refresher

Courts-Martial Appeal Court hearing in relation to—(1)a charge not being a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life(2)a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life in which —

119% of junior counsel’s fee

73% of junior counsel’s refresher

(a) 1 counsel only is assigned(b)2 counsel are assigned

The same as junior counsel’s feeThe same as senior counsel’s fee

58% of junior counsel’s refresher38% of senior counsel’s refresher

Supreme Court hearing of appeal from the Courts-Martial Appeal Court in relation to—(1)a charge not being a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life(2)a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life in which — (a) 1 counsel only is assigned(b)2 counsel are assigned

119% of junior counsel’s fee80% of junior counsel’s fee83% of senior counsel’s fee

73% of junior counsel’s refresher58% of junior counsel’s refresher38% of senior counsel’s refresher

Regulation 11.

SCHEDULE 4 SOLICITORS’ FEES

Part 1 Fee in respect of accused person where only one accused person represented and in respect of first accused person where solicitor assigned in respect of more than one accused person

Item(1)

First day of hearing(2)

Each subsequent day(3)

14. Where, in connection with a case or cases in relation to which a solicitor has been assigned pursuant to a legal aid certificate or certificates, it is essential for a solicitor to visit a prison, detention barrack or other custodial centre—

(

a

) there shall be paid under the Principal Act in respect of each such visit a fee as follows

(i) from the date these Regulations are made to 31 August 2008, that set out at item 1 of Part 2 of Schedule 4, and

(ii) from 1 September 2008, that set out at item 2 of Part 2 of Schedule 4,

and

(

b

) in addition, there shall be paid under the Principal Act travelling expenses actually and necessarily incurred as follows

(i) in case the solicitor makes the whole journey in his or her own motor car, a sum calculated at the rate of €0.47 per kilometre of the journey, and

(ii) in any other case, a sum equal to whichever of the following is the lesser—

(I) the actual cost of the journey, or

(II) the cost of the journey by public transport and (to the extent (if any) that public transport is not available) hired car, or if no public transport is available for the journey, hired car.

15. (1) There shall be paid to a solicitor under the Principal Act any sum necessarily expended by the solicitor—

(

a

) in respect of the service of documents, or

(

b

) in payment of court fees prescribed by or under statute,

in connection with a case in relation to which the solicitor has been assigned pursuant to a legal aid certificate.

(2) Any disbursements that were reasonably made for the purposes of a case by a solicitor assigned in relation to the case pursuant to a legal aid certificate and are of a reasonable amount shall be payable under the Principal Act.

16. (1) Subject to paragraphs (2), (4), (5) and (6), the travelling expenses actually and necessarily incurred by a solicitor in attending the investigation of a charge pursuant to such regulations or rules of procedure, as may from time to time be prescribed by the Minister under the Act of 1954, or a court-martial, on any day in any place in connection with a case in relation to which he or she has been assigned pursuant to a legal aid certificate shall be payable under the Principal Act as follows—

(

a

) in case the solicitor makes the whole journey in his or her own motor-car, a sum calculated at the rate of €0.47 per kilometre of the journey shall be paid, and

(

b

) in any other case, a sum equal to the lesser of the following shall be paid, namely

(i) the actual cost of the journey,

(ii) the cost of the journey by public transport and (to the extent (if any) that public transport is not available) hired car, or if no public transport is available for the journey, hired car.

(2) No travelling expenses shall be payable under the Principal Act to a solicitor practising in the county or county borough of Dublin in connection with his or her attendance at the investigation of a charge pursuant to such regulations or rules of procedure, as may from time to time be prescribed by the Minister under the Act of 1954, or a court-martial, on any day in the county or county borough of Dublin in connection with a case to which the solicitor has been assigned pursuant to a legal aid certificate.

(3) Subject to paragraphs (4), (5) and (6), the travelling and subsistence expenses actually and necessarily incurred by a solicitor practising elsewhere than in the county or county borough of Dublin in attending sittings of the Courts-Martial Appeal Court or the Supreme Court in connection with a case in relation to which the solicitor has been assigned pursuant to a legal aid certificate and travelling and subsistence expenses actually and necessarily incurred by a solicitor in travelling to and from any place visited for the purposes of the case shall be payable under the Principal Act as follows—

(

a

) in the case of travelling expenses—

(i) in case the solicitor makes the whole journey in his or her own motor-car, a sum calculated at the rate of €0.47 per kilometre of the journey shall be paid, and

(ii) in any other case, a sum equal to the lesser of the following shall be paid—

(I) the actual cost of the journey,

(II) the cost of the journey by public transport and (to the extent (if any) that public transport is not available) hired car, or if no public transport is available for the journey, hired car,

and

(

b

) in the case of subsistence allowances, on a scale corresponding to the scale for the time being at which the subsistence expenses of civil servants of the highest grade are paid.

(4) No travelling or subsistence expenses shall be paid under the Principal Act to a solicitor assigned in relation to any particular case pursuant to a legal aid certificate in respect of any day on which the hearing of the case consists only of one or more of the following, that is to say, an application for an adjournment in respect of which fees are not payable under Regulation 11 or in relation to bail or the suspension of the operation of a sentence of imprisonment or detention or both.

(5) No travelling or subsistence expenses shall be paid under the Principal Act to a solicitor in connection with a case to which Regulation 11(3) applies and in relation to which the solicitor is assigned pursuant to a legal aid certificate.

(6) Where a solicitor is engaged on business in connection with legal proceedings other than business in connection with a case in relation to which the solicitor has been assigned pursuant to a legal aid certificate in any place on any day, no travelling or subsistence expenses shall be payable under the Principal Act to the solicitor in connection with the hearing on that day in that place of a case in relation to which the solicitor has been assigned pursuant to a legal aid certificate.

Witness expenses

17. (1) Allowances to witnesses attending on behalf of the accused person, in obedience to a summons or order or in compliance with a request, being a request which in the opinion of—

(

a

) the Summary Court-Martial in relation to the investigation of a charge pursuant to such regulations or rules of procedure, as may from time to time be prescribed by the Minister under the Act of 1954, or a court-martial,

(

b

) the Courts-Martial Appeal Court in relation to a hearing in that court, or

(

c

) the Supreme Court in relation to a hearing in that court,

was reasonable, at the hearing of a case in relation to which a legal aid certificate has been granted, shall be payable under the Principal Act on a scale corresponding to the scale for the time being at which allowances to similar witnesses attending on behalf of the prosecution at the hearing or at similar hearings are paid.

(2) The fees and expenses of witnesses who are qualified medical practitioners attending on behalf of the accused person, in obedience to a summons or order or in compliance with a request, being a request which in the opinion of—

(

a

) the Summary Court-Martial in relation to the investigation of a charge pursuant to such regulations or rules of procedure, as may from time to time be prescribed by the Minister under the Act of 1954, or a court-marital,

(

b

) the Courts-Martial Appeal Court in relation to a hearing in that court, or

(

c

) the Supreme Court in relation to a hearing in that court,

was reasonable, to give professional evidence at the hearing of a case in relation to which a legal aid certificate has been granted, shall be payable under the Principal Act on a scale corresponding to the scale for the time being at which fees and expenses of such witnesses attending on behalf of the prosecution to give professional evidence at the hearing or at similar hearings are paid.

(3) The fees and expenses of witnesses (other than those referred to in paragraph (2)) holding a professional qualification attending on behalf of the accused person, in obedience to a summons or order or in compliance with a request, being a request which in the opinion of—

(

a

) the Summary Court-Martial in relation to the investigation of a charge pursuant to such regulations or rules of procedure, as may from time to time be prescribed by the Minister under the Act of 1954, or a court-martial,

(

b

) the Courts-Martial Appeal Court in relation to a hearing in that court, or

(

c

) the Supreme Court in relation to a hearing in that court,

was reasonable, to give professional evidence at the hearing of a case in relation to which a legal aid certificate has been granted, shall be payable under the Principal Act on a scale corresponding to the scale for the time being at which fees and expenses of such witnesses attending on behalf of the prosecution to give professional evidence at the hearing or at similar hearings are paid.

(4) The expenses of obtaining medical and technical reports necessarily required for use by the accused person in a case in relation to which a legal aid certificate has been granted, shall be payable under the Principal Act at a rate corresponding to the rate for the time being at which the expenses of obtaining such reports for use by the prosecution in the case or in similar cases are paid.

18. (1) Notwithstanding anything contained in these Regulations, where a legal aid certificate has been granted to a person and a payment has been made or agreed to be made by or on behalf of the person towards the costs or expenses of the case in relation to which the certificate was granted, a payment shall not be made under the Principal Act in respect of those costs or expenses.

(2) If the Minister so thinks fit, he or she may refuse to make a payment under the Principal Act in relation to a case in respect of which a legal aid certificate has been granted unless the person in respect of whom the payment falls to be made furnishes to the Minister a document stating that he or she has not made or agreed to make and will not make or agree to make a payment towards the costs or expenses of the case in relation to which the certificate was granted and is not aware of a payment or intention to make a payment by any other person (other than under the Principal Act) towards such costs or expenses.

Revocations

19. The following Regulations are revoked

(

a

) the Courts-Martial (Legal Aid) Regulations 1986 (

S.I. No. 425 of 1986

);

(

b

) the Courts-Martial (Legal Aid) Regulations 1987 (

S.I. No. 46 of 1987

);

(

c

) the Courts-Martial (Legal Aid) Regulations 1988 (

S.I. No. 125 of 1988

);

(

d

) the Courts-Martial (Legal Aid) Regulations 1989 (

S.I. No. 25 of 1989

);

(

e

) the Courts-Martial (Legal Aid) Regulations 1990 (

S.I. No. 68 of 1990

);

(

f

) the Courts-Martial (Legal Aid) Regulations 1991 (

S.I. No. 210 of 1991

);

(

g

) the Courts-Martial (Legal Aid) Regulations 1993 (

S.I. No. 309 of 1993

).

Regulation 10.

SCHEDULE 1

Form A

LEGAL AID (PRELIMINARY PROCEEDINGS) CERTIFICATE

Summary Court-Martial

sitting at .........................................................................................................................

Application having been made to the Summary Court-Martial by or on behalf of

No............................................................Rank

Name

Unit......................................................, who is charged pursuant to the

Defence Act 1954

with

for a Legal Aid (Preliminary Proceedings) Certificate, and it appearing to the Summary Court-Martial that his or her means are insufficient to enable him or her to obtain legal aid and that by reason of

Tick one as appropriate

the gravity of the charge,

exceptional circumstances,

the gravity of the charge and exceptional circumstances,

it is essential in the interests of justice that he or she should have legal aid at the investigation of the charge or the taking down of the evidence, or at both, the Summary Court-Martial hereby grants in respect of him or her this legal aid certificate, and assigns to him or her as solicitor

(a)

The Summary Court-Martial directs in addition the assignment of counsel.

Dated this day of 20.

Military Judge,

the Summary Court-Martial

Notes

(a) Delete unless the Summary Court-Martial thinks fit that counsel should be assigned.

Form B

LEGAL AID (COURT-MARTIAL) CERTIFICATE

Summary Court-Martial

sitting at .........................................................................................................................

Application having been made to the Summary Court-Martial by or on behalf of

No............................................................Rank

Name

Unit......................................................., who has appealed to the Summary Court-Martial pursuant to section 178E of the

Defence Act 1954

, or has been ordered to be tried by court-martial upon a charge (charges) of

,

for a Legal Aid (Court-Martial) Certificate, and it appearing to the Summary Court-Martial that his or her means are insufficient to enable him or her to obtain legal aid and

Tick one as appropriate

the trial is on a charge of an offence for which he or she would be required on conviction to be sentenced to imprisonment for life,

having regard to all the circumstances of the case (including the nature of such defence, if any, as may have been set up or appeal, as the case may be), it is essential in the interests of justice that he or she should have legal aid in the preparation and conduct of his or her defence at the trial or of his or her appeal, as the case may be,

the Summary Court-Martial hereby grants in respect of him or her this legal aid certificate, and assigns to him or her as solicitor

(a)

The Summary Court-Martial directs in addition the assignment of

(b)

counsel.

Dated this day of 20

Military Judge,

the Summary Court-Martial

Notes

(a)

Delete unless the Summary Court-Martial thinks fit that counsel should be assigned.

(

b

)

Where the Summary Court-Martial thinks fit that counsel should be assigned, insert one or two, as appropriate.

Form C(1)

LEGAL AID (CASE STATED) CERTIFICATE

(GRANTED BY THE SUMMARY COURT-MARTIAL)

Summary Court-Martial

sitting at .........................................................................................................................

Application having been made to the Summary Court-Martial by or on behalf of

No............................................................Rank

Name

Unit...........................................................,

for a Legal Aid (Case Stated) Certificate, and it appearing to the Summary Court-Martial that his or her means are insufficient to enable him or her to obtain legal aid and that, by reason of–

Tick one as appropriate

(

a

) the serious nature of the offence with which the person is charged, or

(

b

) exceptional circumstances,

it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person, the Summary Court-Martial hereby grants this legal aid certificate and assigns to the person as solicitor .................................................

The Summary Court-Martial directs in addition the assignment of

(a)

counsel.

Dated this day of 20.

Military Judge,

the Summary Court-Martial

Notes

(a)

Insert one or two, as appropriate.

Form C(2)

LEGAL AID (CASE STATED) CERTIFICATE

(GRANTED BY THE COURTS-MARTIAL APPEAL COURT)

Courts-Martial Appeal Court

Application having been made to this Court by or on behalf of

No............................................................Rank

Name

Unit.......................................,

for a Legal Aid (Case Stated) Certificate and the Summary Court-Martial having refused such certificate, and it appearing to the Court that his or her means are insufficient to enable the person to obtain legal aid and that, by reason of—

Tick one as appropriate

(

a

) the serious nature of the offence with which the person is charged, or

(

b

) exceptional circumstances,

it is essential in the interests of justice that a legal aid (case stated) certificate should be granted in respect of the person, the Court hereby grants this legal aid certificate and assigns to the person as solicitor

....

The Court directs in addition the assignment of

(a)

counsel.

Dated this day of 20.

Registrar

Notes

(a) Insert one or two, as appropriate.

Form D(1)

LEGAL AID (COURTS-MARTIAL APPEAL COURT) CERTIFICATE (GRANTED BY THE SUMMARY COURT-MARTIAL)

Summary Court-Martial

sitting at .........................................................................................................................

Application having been made to the Summary Court-Martial by or on behalf of

No............................................................Rank

Name

Unit......................................., who

Tick one as appropriate

has been convicted by court-martial of

,

who has appealed against the finding and/or the decision of the court-martial, pursuant to section 202 or 203 of the

Defence Act 1954

, of (

a

)

,

for a Legal Aid (Courts-Martial Appeal Court) Certificate, and it appearing to the Summary Court-Martial that his or her means are insufficient to enable him or her to obtain legal aid and

Tick one as appropriate

the conviction is of an offence for which he or she would be required on conviction to be sentenced to imprisonment for life,

that, by reason of the serious nature of the offence or of exceptional circumstances, it is essential in the interests of justice that he or she should have legal aid in the preparation and conduct of an appeal,

the Summary Court-Martial hereby grants in respect of him or her this legal aid certificate and assigns to him or her as solicitor

The Summary Court-Martial directs in addition the assignment of

(b)

counsel.

Dated this day of 20

Military Judge,

the Summary Court-Martial

Notes

(a)

State whether the reason is—

(1) found unfit to take his or her trial pursuant to

section 202

of the

Defence Act 1954

, or

(2) found not guilty by reason of insanity pursuant to

section 203

of the

Defence Act 1954

, or

(3) the decision of the court-martial to make or not to make an order of committal under section 202 or 203 of the

Defence Act 1954

.

(b) Insert one or two, as appropriate.

Form D(2)

LEGAL AID (COURTS-MARTIAL APPEAL COURT) CERTIFICATE

(GRANTED BY THE COURTS-MARTIAL APPEAL COURT)

Courts-Martial Appeal Court

Application having been made to this Court by or on behalf of

No............................................................Rank

Name

Unit......................................., who

Tick one as appropriate

has been convicted by court-martial of

,

who has appealed against the finding and/or the decision of the court-martial, pursuant to section 202 or 203 of the

Defence Act 1954

, of (

a

)

,

for a Legal Aid (Courts-Martial Appeal Court) Certificate and the Summary Court-Martial having refused such certificate, and it appearing to the Court that his or her means are insufficient to enable him or her to obtain legal aid and

Tick one as appropriate

the conviction is of an offence for which he or she would be required on conviction to be sentenced to imprisonment for life,

that, by reason of the serious nature of the offence or of exceptional circumstances, it is essential in the interests of justice that he or she should have legal aid in the preparation and conduct of an appeal,

the Court hereby grants in respect of him or her this legal aid certificate and assigns to him or her as solicitor

The Court directs in addition the assignment of

(b)

counsel.

Dated this day of 20.

Registrar

Notes

(a)

State whether the reason is—

(1) found unfit to take his or her trial pursuant to

section 202

of the

Defence Act 1954

, or

(2) found not guilty by reason of insanity pursuant to

section 203

of the

Defence Act 1954

, or

(3) the decision of the court-martial to make or not to make an order of committal under section 202 or 203 of the

Defence Act 1954

.

(b) Insert one or two, as appropriate.

Form E(1)

LEGAL AID (SUPREME COURT) CERTIFICATE

(GRANTED BY THE COURTS-MARTIAL APPEAL COURT)

Courts-Martial Appeal Court

Application having been made to this Court by or on behalf of

No............................................................Rank

Name

Unit......................................., who has appealed from—

Tick one as appropriate

a determination of this Court in relation to the offence of

,

or

the punishment imposed in respect thereof,

for a Legal Aid (Supreme Court) Certificate, and it appearing to the Court that his or her means are insufficient to enable him or her to obtain legal aid, the Court hereby grants in respect of him or her this legal aid certificate, and assigns to him or her as solicitor

The Court directs in addition the assignment of

(a)

counsel.

Dated this day of 20.

Registrar

Notes

(a) Insert one or two, as appropriate.

Form E(2)

LEGAL AID (SUPREME COURT) CERTIFICATE

(GRANTED BY THE SUPREME COURT)

Supreme Court

Application having been made to this Court by or on behalf of

No............................................................Rank

Name

Unit......................................., who has appealed from—

Tick one as appropriate

a determination of the Courts-Martial Appeal Court in relation to the offence of , or

the punishment imposed in respect thereof,

for a Legal Aid (Supreme Court) Certificate, and the Courts-Martial Appeal Court having refused to grant such certificate and it appearing to this Court that his or her means are insufficient to enable him or her to obtain legal aid, this Court hereby grants in respect of him or her this legal aid certificate, and assigns to him or her as solicitor

The Court directs in addition the assignment of

(a)

counsel.

Dated this day of 20.

Registrar

(a) Insert one or two, as appropriate.

Regulation 10.

SCHEDULE 2

STATEMENT OF MEANS OF AN APPLICANT FOR FREE LEGAL AID

As an applicant for free legal aid, you are hereby required pursuant to

section 32

of the

Courts-Martial Appeals Act 1983

to furnish on this form particulars relevant for determining whether your means are insufficient to enable you to obtain legal aid.

You must enter true and correct particulars against each numbered heading. If the answer is “None” or “No” that must be written in.

The declaration at the end must be signed and the form must be returned to

S.I. No. 206 of 2008

COURTS-MARTIAL (LEGAL AID) REGULATIONS 2008

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

11

th July

, 2008.

I, WILLIE O’DEA, Minister for Defence, in exercise of the powers conferred on me by

section 33

of the

Courts-Martial Appeals Act 1983

(No. 19 of 1983) and, in so far as these Regulations are in relation to rates or scales of payment of fees, costs or expenses payable out of monies provided by the Oireachtas pursuant to legal aid certificates, with the consent of the Minister for Finance, hereby make the following regulations

Citation