Min for Justice v O'Connor
|Mr. Justice Gerard Hogan,Ms. Justice Irvine
|30 March 2017
| IECA 227
|Court of Appeal (Ireland)
|[C.A. No. 48 of 2015], [S.C. No. 64 of 2015]
|30 March 2017
- and -
- and -
 IECA 227
THE COURT OF APPEAL
Extradition – European arrest warrants – Legal aid – Appellant seeking to have legislation declared invalid having regard to the Constitution – Whether the European Arrest Warrant Act 2003 breaches the principle of equality
Facts: The respondent/appellant, Mr O"Connor, was the subject of a European arrest warrant (EAW) issued in 2011 seeking his surrender to serve sentences for tax fraud that were imposed in 2007, and to face the charge of absconding and breaching his bail conditions. The first application failed. Mr O"Connor"s resistance to the request for an order that he be surrendered pursuant to the European Arrest Warrant Act 2003 was based on the argument that the Legal Aid (Custody Issues) Scheme, which is available to provide for payment of legal representation in EAW cases, is not compliant with the EU Framework Decision underpinning the European Arrest Warrant Scheme. Mr O"Connor contended that the payment scheme providing for legal assistance under the Custody Issues Scheme is in conflict with the Framework Decision because it is provided on an administrative and discretionary basis and not by way of a formal binding and statutory right to free legal assistance provided in accordance with law. The application for the enforcement of the warrant was heard by the High Court together with plenary proceedings by Mr O"Connor based on the same factual circumstance. He claimed that the absence of a statutory scheme of legal aid, by contrast with provisions for qualified persons in criminal cases and for civil legal aid, constituted a breach of his constitutional rights, specifically, equality before the law under Article 40.1. The High Court rejected Mr O"Connor"s challenge to the European Arrest Warrant proceedings and dismissed his plenary proceedings. The High Court ordered Mr O'Connor's rendition, but gave him leave to appeal and thus the matter came to the Court of Appeal. There were two appeals, one being the extradition request and the other being a separate action by Mr O'Connor seeking to have legislation declared invalid having regard to the Constitution.
Held by Ryan P that, having applied Minister for Justice, Equality and Law Reform v Olsson  1 IR 384, there was a failure of constitutional logic in Mr O"Connor"s case for invalidity; by asserting a constitutional right to a scheme of legal aid for him and persons in his situation to be available as a right on a statutory basis he was claiming a right that is separate and distinct from the provisions of the 2003 Act. Ryan P held that the claim could not succeed as an independent case seeking to invalidate the Act for what it does not contain, referring to Carmody v Minister for Justice  1 ILRM 157.
Ryan P held that there was no evidence before the Court of Appeal that the 2003 Act is constitutionally deficient in any respect or that it permits any unconstitutional discrimination. Accordingly, Ryan P held that the Court had no reason to believe that the 2003 Act breaches the principle of equality before law as guaranteed in Article 40.1 of the Constitution.
Appeal dismissed. The other Justices also gave judgments in the matter.
JUDGMENT of the Court delivered by the President on 23rd October 2015
JUDGMENT of Ms. Justice Irvine delivered on the 23rd day of October, 2015
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 23rd day of October, 2015
1. The European arrest warrant is a function of an EU Framework Decision that was intended to streamline extradition among Member States by replacing inter-State requests with enforcement of court orders from one country to another. The scheme is founded on trust m the systems of justice in the participating States. Cumbersome rules of procedure were replaced by a standard unified process that applied across the European Union. Strict time limits were laid down so that the process of transmitting a wanted person from where he was arrested to the requesting State court would operate smoothly and efficiently. Some of the old rules were dispensed with because they were thought to be unnecessary in the new community of trust in common precepts of substantive and procedural justice. The system was implemented in this country by the European Arrest Warrant Act 2003.
2. In the case of Mr. Thomas O'Connor, the reality has not matched the expectation. The warrant was issued on 13 th June 2011 and seeks his surrender to serve sentences for tax fraud that were imposed in 2007, and to face the charge of absconding and breaching his bail conditions. The first application failed and this case is concerned with a second warrant.
3. The High Court ordered Mr. O'Connor's rendition, but gave him leave to appeal and thus the matter comes to this Court. There are, in fact, two proceedings and two appeals, but essentially, the same issue arises in them. One appeal is the extradition request and the other is a separate action by Mr. O'Connor seeking to have the legislation declared invalid having regard to the Constitution.
4. Mr. O'Connor's resistance to the request for an order that he be surrendered pursuant to the 2003 Act was based on the argument that the Attorney General's Scheme - now called the Legal Aid (Custody Issues) Scheme - which is available to provide for payment of legal representation in EAW cases, is not compliant with the Framework Decision underpinning the European Arrest Warrant Scheme. As it applied at the relevant time, s. 10 of the European Arrest Warrant Act 2003 provided that the wanted person should, subject to and in accordance with the provisions of the Act and the Framework Decision, be arrested and surrendered to the issuing State. The section was amended to remove the reference to the Framework Decision but as it applied at the time, the section had the reference to the Decision. It is Mr. O'Connor's contention in this case that the payment scheme provided for legal assistance under the Custody Issues Scheme is in conflict with the Framework Decision because it is provided on an administrative and discretionary basis and not by way of a formal binding and statutory right to free legal assistance provided in accordance with law.
5. The application for the enforcement of the warrant was heard by the High Court together with plenary proceedings by Mr. O'Connor based on the same factual circumstance. He claimed that the absence of a statutory scheme of legal aid, by contrast with provisions for qualified persons in criminal cases and for civil legal aid, constituted a breach of his constitutional rights, specifically, equality before the law under Article 40.1.
6. The High Court rejected Mr. O'Connor's challenge to the European Arrest Warrant proceedings and dismissed his plenary proceedings. The Court held that it should therefore proceed to make an order for the surrender of Mr. O'Connor. The Court subsequently refused an application for a reference to the Court of Justice of the European Union under Article 267 TFEU because it held that such a procedure was not available when the Court had already made its decision in a case, even if it had not actually delivered its judgment setting out the reasons, which was the situation in this case. The Court did, however, certify a point of law of exceptional public importance which it was desirable in the public interest to be the subject of appeal, applying s. 60(11) of the European Arrest Warrant Act 2003. The certified question was:
Is it correct that Article 11.2 of the Framework Decision (on the European Arrest Warrant) in conjunction with Article 47 of the EU Charter and the general principles of EU law imposes no obligation to provide legal aid, whether as of right or otherwise for indigent respondents in EAW cases who do not have the skill to represent themselves?
7. Mr. O'Connor's challenge to the adequacy of the Custody Issues scheme arises in the context of what is required by the European Arrest Warrant Act 2003 and Council Framework Decision 2002/584/J.H.A.A. of 13 th June 2002 on the European Arrest Warrant and the surrender procedures between Member States: O.J. L. 190/1 18.7.2002. The relevant provision is in Article 11 which is as follows:
2 "1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with national law, inform that person of the European Arrest Warrant and of its contents, and also of the possibility of consenting to surrender to the issue in judicial authority.
2. A requested person who was arrested for the purpose of execution of a European Arrest Warrant should have the right to be assisted by a legal Counsel and by an interpreter in accordance with the national law of the executing Member State."
8. In his judgment in the High Court, Edwards J. cited the case Minister for Justice, Equality and Law Reform v. Olsson  I. I.R. 384 in which the Supreme Court analysed the meaning and effect of Article 11.2 of the...
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