Peter Geoghegan and Mary Kenny on Brexit Mayhem
UNLIKE in a civil action where the winning party is usually awarded its legal costs, there is no such guarantee when a defendant is acquitted of a criminal charge.
In fact, applications for costs such as those made by former Irish rugby internationals Paddy Jackson and Stuart Olding are quite rare.
So rare in fact that neither jurisdiction on the island of Ireland has deemed it necessary to have a dedicated central fund from which such awards can be made.
In the vast majority of cases in the Republic and Northern Ireland, the issue simply doesn’t arise. This is because of the widespread availability of criminal legal aid.
However, it can arise in cases where acquitted defendants are people of means who could not qualify for criminal legal aid.
Mr Jackson and Mr Olding were both cleared of rape last March following a nine-week trial which left them with estimated legal bills of £450,000 (€500,000) and £150,000 (€167,000) respectively.
Both men would later have their contracts with Ulster and the Irish Rugby Football Union revoked. They are now playing for different clubs in France.
Both cited several grounds in support of their applications for costs.
These included alleged deficiencies in the investigation, and various factors which elongated the trial, including inappropriate behaviour by some members of the public on social media. All of these arguments were rejected by Judge Patricia Smyth.
While it may seem harsh when acquitted persons cannot recoup their legal costs, courts have to grapple with competing considerations.
Under the European Convention on Human Rights, it is considered generally unfair that a person found not guilty should be encumbered with the expense of defending themselves.
But, on the other hand, there is the public interest argument that prosecutions should be brought without fear of a penalty for the prosecution authority if the prosecution is unsuccessful.
In a reasoned 26-page ruling, Judge Smyth explained she had “unfettered discretion” and there were “no hard and fast rules” that needed to be applied.
A key consideration identified by the judge was the impact of the prosecution on their financial circumstances.
Both men were invited by the court to provide confirmation of the reasons given for the termination of their contracts and their current financial situations. However, this was not produced.
Judge Smyth said in the absence of such information, there was simply no evidence upon which the court could conclude the financial circumstances of either player had been irrevocably changed.