Minister for Justice and Equality v Thomas O'Connor

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 12 January 2015
• Neutral Citation: [2015] IEHC 26
• Court: High Court
• Docket Number: [No. 297 EXT./2011]
• Date: 12 January 2015

[2015] IEHC 26

THE HIGH COURT

[No. 297 EXT./2011]

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

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 12th day of January, 2015.

Introduction

2 This is the Court's ruling upon an application by the respondent for this Court 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 High Court acquired jurisdiction to make such references for the first time on the 1 ^st December, 2014, that date being five years from the coming into force of the Lisbon Treaty, on which date Article 10(3) of Protocol No. 36 to that instrument came into force.

3 On the 3 ^rd December, 2014, the Court was asked by counsel for the respondent to forward the following questions to the Court of Justice of the European Union:

4 2 "1. Is the ad hoc Attorney General's scheme sufficient to guarantee 'assistance by a legal counsel' v 'beneficier de services d'un conseil' - 'in accordance with national law' v 'droit national' envisaged by Article 11(2) of the Framework Decision on a European arrest warrant?

5 2. Does the reasoning to be given, for rejecting the proposition that this ad hoc scheme is not a sufficient guarantee, comply with Article 47 of the E.U. Charter on Fundamental Rights, in particular, the implied requirement to give reasons for rejecting the arguments for insufficiency, as summarized in written submissions dated 29 ^th May 2014?

6 3. On account of the mootness principal in Irish law and Mr. O'Connor's invitation to the Minister to waive any mootness objection that may be raised, did Mr. O'Connor get a fair hearing as envisaged in Article 47 of the Charter?"

7 These were later recast or reformulated by counsel for the respondent in written submissions to the Court as follows:

8 i "i) 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?

9 ii) 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?

10 iii) 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?

11 iv) Has this Court jurisdiction to refer the above questions?"

12 The applicant does not accept that the Court has jurisdiction in the circumstances of the case to make the reference that the...