Min for Justice v O'Connor

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 04 December 2014
• Neutral Citation: [2014] IEHC 640
• Court: High Court
• Date: 04 December 2014

[2014] IEHC 640

THE HIGH COURT

[No. 297 EXT./2011]

[No. 1195P/2012]

Min for Justice v O'Connor

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

THOMAS O'CONNOR

RESPONDENT

AND

THOMAS O'CONNOR

PLAINTIFF

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

MIN FOR JUSTICE v OLSSON 2011 1 IR 384 2011 2 ILRM 2011/43/12423 395 2011 IESC 1

HENDERSON v HENDERSON 1843-60 AER 378 67 ER 313 1843 3 HARE 100

CONSTITUTION ART 40.1

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 11(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5(2)

EUROPEAN ARREST WARRANT ACT 2003 S10

BAIL ACT 1976 S6(2) (UK)

CRIMINAL LAW ACT 1977 S1(1) (UK)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(2)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

CRIMINAL JUSTICE ACT 1984 S13

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(i)

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004 ART 2

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004 SCHED

CRIMINAL JUSTICE (LEGAL AID) ACT 1962

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47 PARA 3

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 20

INTERNATIONAL CRIMINAL COURT ACT 2006 S23(5)

INTERNATIONAL CRIMINAL COURT ACT 2006 S23(6)

CRIMINAL JUSTICE ACT 2006 S118

MIN FOR JUSTICE v MCGINLEY UNREP EDWARDS 30.7.2012 (EX TEMPORE)

MIN FOR JUSTICE v MCGUINNESS UNREP EDWARDS 15.7.2011 2011/37/10302 2011 IEHC 289

EUROPEAN ARREST WARRANT ACT 2003 S13(4)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47 PARA 1

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47 PARA 2

EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) ACT 2012 S5

INTERPRETATION ACT 2005 S27

MINISTRY OF JUSTICE, REPUBLIC OF LITHUANIA v BUCNYS 2014 AC 480 2013 3 WLR 1485 2014 2 AER 235 2013 UKSC 71

TREATY ON EUROPEAN UNION ART 34(2)(B)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 288 PARA 3

LENAERTS & ORS EUROPEAN UNION LAW 3ED 2011 896-899

LENAERTS & ORS EUROPEAN UNION LAW 3ED 2011 941

ASSANGE v SWEDEN 2012 2 AC 471 2012 2 WLR 1275 2012 4 AER 1249 2012 UKSC 22

MIN FOR JUSTICE v BAILEY 2012 4 IR 1 2012/25/7268 2012 IESC 16

AIREY v IRELAND 1979-80 2 EHRR 305 1979 ECHR 3

CONSTITUTION ART 15.2.1

SECRETARY OF STATE FOR THE HOME DEPT v PANKINA 2011 QB 376 2010 3 WLR 1526 2011 1 AER 1043 2010 EWCA CIV 719

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE FIRE BRIGADES UNION 1995 2 AC 513 1995 2 WLR 464 1995 2 AER 244

STOPYRA v POLAND; DEBRECENI v HUNGARY 2013 1 AER 187 2012 ACD 94 2012 EWHC 1787 (ADMIN)

STATUTORY INSTRUMENTS ACT 1947 S2(3)

STATUTORY INSTRUMENTS ACT 1947 S2(4)

EUROPEAN ARREST WARRANT ACT 2003 S13(4)(B)

K (D) v JUDGE CROWLEY & ORS 2002 2 IR 744 2003 1 ILRM 88 2002/14/3380

MCCANN v JUDGE OF MONAGHAN DISTRICT COURT & ORS 2009 4 IR 201 2010 1 ILRM 17 2009/34/8273 2009 IEHC 276

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 21

FLEMING v IRELAND & ORS 2013 2 ILRM 73 2013/20/5756 2013 IESC 19

SECRETARY OF STATE FOR THE HOME DEPT v F (A) (NO 3) 2010 2 AC 269 2009 3 WLR 74 2009 3 AER 643 2009 UKHL 28

MASTAFA v HM TREASURY 2013 1 WLR 1621 2012 EWHC 3578 (ADMIN)

COURTS & CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2013 S24(B)

CIVIL LEGAL AID REGS 2013 SI 346/2013

O'SULLIVAN v CHIEF EXECUTIVE OF THE IRISH PRISON SERVICE & ORS 2010 4 IR 562 2011 1 ILRM 350 2010/42/10645 2010 IEHC 301

INTERNATIONAL CRIMINAL COURT ACT 2006 PART III

INTERNATIONAL CRIMINAL COURT ACT 2006 S32

CIVIL LEGAL AID ACT 1995 S28(5)

MCMAHON v LEAHY 1984 IR 525 1985 ILRM 422

EXTRADITION ACT 1965 PART III

G (B) v DISTRICT JUDGE MURPHY & ORS 2011 3 IR 748 2011/22/5806 2011 IEHC 445

KAVANAGH v IRELAND UNREP UNHRC 14.4.2001 (COMMUNICATION NO 819/1998)

UN INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 26

MURPHY v M (G) & ORS; GILLIGAN v CRIMINAL ASSETS BUREAU & ORS 2001 4 IR 113 2003/39/9225

DORNAN RESEARCH & DEVELOPMENT LTD v LABOUR COURT & AG 2001 1 IR 223 1998/17/6481

BROHOON v IRELAND & ORS 2011 2 IR 639 2012 1 ILRM 60 2011/6/1405 2011 IEHC 74

CAHILL v SUTTON 1980 IR 269

LANCEFORT LTD v BORD PLEANALA & ORS (NO 2) 1999 2 IR 270 1998 2 ILRM 401 1998/23/8916

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

RIORDAN v GOVT OF IRELAND & ORS 2009 3 IR 745 2009/44/12261 2009 IESC 44

CRIMINAL JUSTICE ACT 1988 SS108-117 (UK)

CRIMINAL JUSTICE ACT 1988 SCHED 6 (UK)

CRIMINAL JUSTICE ACT 1988 SCHED 7 (UK)

CRIMINAL JUSTICE ACT 1988 S171(1) (UK)

EXTRADITION ACT 1965 PART II

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ART 55

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ART 67

INTERPRETATION ACT 2005 S26(2)(C)

INTERPRETATION ACT 2005 S27(1)(E)

The Treaty on the Functioning of the European Union – National Law – Preliminary Ruling – Obligations – Practice and Procedures – Inordinate Delays - Jurisdiction

Facts: This case concerned an application by the respondent to seek a preliminary ruling from the Court of Justice of the European Union pursuant to Article 267 of the Treaty on the Functioning of the European Union (hereafter T.F.E.U.). The Court was asked in December 2014 by counsel for the respondent to forward the following questions to the Court of Justice of the European Union: (1) Does Article 11(2) of the Framework Decision on the European arrest warrant "impose no obligation...to provide legal aid, whether as of right or otherwise" in cases involving indigent respondents who cannot afford to pay for appropriate legal representation?; (2) If such an obligation exists, is a discretionary ad hoc administrative legal aid scheme, with virtually no criteria as to how it shall be administered and which is never granted until the surrender proceedings have ended, a sufficient discharge of this obligation?; (3) In light of the inordinate delays in the conduct of these proceedings since July 2012, should surrender be refused in view of art. 17 of the Framework Decision?; and (4) Has the Court jurisdiction to refer the above questions?". The applicant did not accept that the Court had jurisdiction to make the reference and accordingly opposed the application.

Held by Justice Edwards in light of the available evidence and submissions presented that the Court did not have jurisdiction to make the requested reference. In consideration of McNamara v An Bord Pleanála and others [1998] 3. I.R. 453, it was reasoned that the reference to final judgment referred to the decision on the substantive issue in the case, and it was not to be more narrowly construed as referring to delivery of the Court"s statement of the reasons for its decision. Thus, the Court was satisfied that its decision in the present case on the 2nd December, 2014, represented the Court"s final judgment in the sense intended by the relevant treaty provisions. Consequently, it was determined that the Court had rendered its decision on the 2nd of December 2014, and with that it ceased to have any jurisdiction thereafter to seek a preliminary reference in respect of the subject matter of that decision. In the circumstances, the Court dismissed the respondent"s application as misconceived.

1 JUDGMENT of Mr. Justice Edwards delivered on the 4th day of December, 2014.

Introduction

2 This judgment is in respect of two sets of proceedings, which are related and which were heard together for convenience.

3 The first set of proceedings relates to a European arrest warrant where surrender is objected to on the grounds that the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"), in failing to make provision for statutory based legal aid for requested persons, disregards Ireland's obligations under E.U. law, and is also repugnant to the Constitution of Ireland, and also on the grounds of alleged abuse of process. Moreover, while the points of objection as pleaded advanced a plea of abuse of process, it was expressed to be "subject to the foregoing" i.e., subject to the claim that the Act of 2003 disregards Ireland's obligations under E.U. law, and is repugnant to the Constitution. While it would have been open to the respondent to argue abuse of process without prejudice to his claims that the Act of 2003 was enacted in disregard of Ireland's obligations under E.U. law, and/or that it is unconstitutional, he elected not to do this. Counsel for the respondent explained that his client was not capable of putting forward such a case on his own behalf, and yet if counsel were to proceed to argue any other ground of objection on his behalf, the respondent would be faced with a claim that his challenges to the Act of 2003 were moot in the circumstances. This had happened, said counsel, in Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 I.R. 384.

4 In Olsson, the respondent had sought to challenge the adequacy of the Attorney General's Scheme in the context of what was required by the Act of 2003 and Council Framework Decision 2002/584/J.H.A of 13 June 2002 on the European arrest warrant and the surrender procedures between member States, O.J. L 190/1 18.7.2002 (hereinafter referred to as "the Framework Decision"). It was suggested, inter alia, that these instruments required that he...