O'Shea v Legal Aid Board & Ors (Unapproved)

This appeal concerns the operation of the Legal Aid - Custody Issues Scheme (�the Scheme�), formerly and still commonly known as the Attorney General�s Scheme, a non-statutory scheme for the payment by the State of legal costs in certain types of cases, and which is now administered by the Legal Aid Board (�the Board�). �The central question for determination is whether the Board is bound by a recommendation made by a court under the Scheme that the legal fees of a party be discharged through the Scheme.

�It is an appeal by the Board and the State appellants pursuant to Article 34.5.4� of the Constitution directly from the order of Simons J. made on 25 July 2019, for the reasons set out in a written judgment, O�Shea v. Legal Aid Board [2019] IEHC 385 , granting judicial review of the refusal of the Board to pay the costs and/or fees and expenses incurred by the respondent in accordance with the recommendation made by Humphreys J. by his order of 6 February 2017: O'Shea v. Ireland [2017] IEHC 9 .

On 10 May 2011, the respondent, Mr O�Shea, was sentenced to 5 years� imprisonment with the final 3 years suspended under s. 15 of the Misuse of Drugs Act 1977, as amended. �On 27 October 2015, Mr O�Shea pleaded guilty to committing during the period of suspension a triggering offence under s. 4 of the Criminal Justice (Theft and Fraud) Act 2001, the effect of which was to reactivate the suspended sentence under s. 99 of the Criminal Justice Act 2006 (�the 2006 Act�).�

On 19 April 2016, Moriarty J. held, in Moore v. DPP [2016] IEHC 244 , [2018] 2 IR 170, that subsections 9 and 10 of s. 99 of the 2006 Act were unconstitutional.

On 3 May 2016, Mr O�Shea initiated judicial review proceedings impugning the constitutionality of s. 99(11) of the 2006 Act on the grounds that the section can, and did in his case, result in excessive and disproportionate sentencing.