Minister for Justice and Equality v O'Connor
|03 July 2017
| IESC 48
|Supreme Court No.:64/2015
|03 July 2017
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, (AS AMENDED)
 IESC 48
Supreme Court No.:64/2015
European arrest warrant – Surrender – Constitution – Appellant seeking an order setting aside an order of the Supreme Court – Whether the application was directly contrary to the provision of Article 34.4.6o of the Constitution
Facts: The appellant, Mr O’Connor, sought an order setting aside the order of the Supreme Court of the 30th March, 2017, and an order remitting the case to the High Court to allow matters to be argued therein which it was said, were the subject matter of the Supreme Court decision. In a judgment of the 30th March, 2017, the Supreme Court unanimously dismissed the appellant’s appeal from the order of the Court of Appeal, which in turn had rejected an appeal from the decision of the High Court that Mr O’Connor be surrendered to the UK pursuant to the European Arrest Warrant Act 2003. The surrender of the appellant was sought under an EAW to serve his sentence imposed in the UK in respect of tax fraud offences and also to be tried on failing to answer his bail. The stated object of the appellant’s application was to permit a hearing to hear and determine the “Brexit” issue, and to also consider a number of other issues which the appellant wished to raise, including issues which either were, or could have been, the subject of his original objection to surrender which was rejected in each court culminating in the decision of the Supreme Court of the 30th March, 2017. In seeking to have matters remitted to the High Court for determination, the appellant in effect sought to set aside not just the judgment and order of the Supreme Court, but also that of the Court of Appeal and the order of the High Court of surrender, and moreover to treat the judgments delivered therein as not having occurred.
Held by O’Donnell J that nothing in the application raised even an arguable case that might satisfy the Re Greendale Developments Ltd (No.3)  2 IR 514 criteria. O’Donnell J held that the application to set aside the judgment and order of the Court was directly contrary to the provision of Article 34.4.6o of the Constitution.
O’Donnell J held that the application must be dismissed.
Article 34.4.6o of the Constitution provides that the decision of the Supreme Court shall in all cases be final and conclusive. This is a provision which litigants and their lawyers should respect and abide by whatever their views of the decision: it is in any event a provision which this Court, which is established under the Constitution, is obliged to uphold.
In this application, the moving party, Mr. Thomas O'Connor, seeks an order which, on its face, directly contravenes the provisions of Article 34.4.6o. That is, he seeks an order setting aside the order of this Court of the 30th March, 2017, and an order remitting the case to the High Court to allow matters to be argued therein which it is said, were the subject matter of the Supreme Court decision. In a judgment which I delivered on the 30th March, 2017 ( European Arrest Warrant Act, 2003.), this Court unanimously dismissed the appellant's appeal from the order of the Court of Appeal, which in turn had rejected an appeal from the decision of the High Court that Mr. O'Connor be surrendered to the Untied Kingdom pursuant to the The stated object of this application is, as already touched on, to permit a hearing which is listed before the High Court on the 4th July, 2017, to hear and determine what might be described as the ‘Brexit’ issue, and to also consider a number of other issues which the appellant wishes to now raise, including issues which either were, or could have been, the subject of his original objection to surrender which was rejected in each court culminating in the decision of this Court of the 30th March, 2017. Prima facie that is a decision to which Article 34.4.6o applies. It follows furthermore that in seeking to have matters remitted to the High Court for determination, the applicant in effect seeks to set aside not just the judgment and order of this Court, but also that of the Court of Appeal and the order of the High Court of surrender, and moreover to treat the judgments delivered therein as not having occurred.
It is well known that this Court accepts that there is an exceptional jurisdiction to set aside one of its own decisions: In . This exceptional jurisdiction arises only when it can be said that there has been some fundamental failure of justice so as to in effect deprive the apparent judgment of the quality of a decision to which Article 34.4.6o applies. One example might where the panel determining the appeal contained a member who was disqualified from hearing the appeal. It has been held, and must be obvious, that this is an exceptional jurisdiction and requires something truly fundamental. It should follow that parties should not initiate such an application lightly.
The surrender of the applicant, Mr. O'Connor, is sought under an EAW to serve his sentence imposed in the United Kingdom in respect of tax fraud offences and also to be tried on failing to answer his bail. It is said on his behalf that there was a previous unsuccessful attempt to secure his surrender which failed when the application was withdrawn during an appeal to this Court. It is also now said that on that occasion one member of this Court made a remark as to the finality of that determination. There has been an exceptional level of confusion in this case and I regret that it is necessary to emphasise here that I am merely recording what is now said on behalf of the applicant, and this recounting of these assertions, should not be understood as necessarily accepting that the facts set out are correct either as to the precise detail or the appropriate nuance of any aspect of the matter. In any event, a second EAW was issued and was the subject of these proceedings.
The applicant also argues that the matters touched on above gave rise to valid objections to the EAW, including an allegation that surrender was precluded by reason of the earlier proceedings and that there had been inordinate delay in the issuance of the second EAW. I refer to these as ‘the substantive points’. As I understand it, these points while initially raised were not pursued before Edwards J. in the High Court ( ) in these proceedings.
In the High Court, counsel on behalf of Mr. O'Connor took one point which can be characterised as preliminary and procedural. It was argued that the fact that legal aid was available under what used to be called the Attorney General's Scheme and is now the Custody Legal Aid Scheme, was insufficient to comply with the requirements of Regulation 11(2) of the Framework Decision. The applicant's advisors took the course of both withdrawing from the scheme, and then limited their argument to the question of what might be described as the legal aid point: first the requirement of the interpretation of Regulation 11(2), and second, the question whether as a matter of national law, the distinction between the Custody Legal Aid Scheme, and the Legal Aid Scheme in Criminal Matters created by the Criminal Legal Aid Act 1962, was a breach of the Article 40.1 guarantee of equality. It was contended in this Court, that the lawyers were obliged to withdraw from the Custody Legal Aid Scheme if they wished to make these arguments. It was contended that this was because of the decision of this Court (also unanimous) in . As a matter of law, it is very difficult to see how it could be seriously contended that acceptance of the Custody Legal Aid Scheme would preclude a person from arguing that it failed to sufficiently implement the Framework Decision or was otherwise incompatible with the Constitution. For reasons set out in the judgment which I delivered in this matter on the 30th March, 2017, such an argument was also a plain misreading of what had been said in . It is very difficult to credit that this contention could be seriously advanced. However, the further step taken was, if anything, more baffling. The only point taken in opposition to the EAW was the legal aid point; the substantive points were not advanced. It is hard to see how even the most tortured theory of standing could lead a party to advance one point in opposition to surrender, but fail to advance others.
While many points taken in opposition to a EAW can be said to be technical or legal, the argument in relation to legal aid was one which had very little claim to any vestige of practical merit. From the point of view of an individual respondent, it must be a matter of supreme irrelevance whether the legal aid which is being made available to him is provided under a statutory scheme implementing what has been held to be a constitutional guarantee, or a non-statutory scheme subject to binding legal assurances, and again held by this Court to implement in some respects a constitutional guarantee. In either case, the same counsel and solicitor will appear at the expense of the State. Neither the arguments made nor the enthusiasm with which they are advanced will depend upon the legal aid scheme under which the lawyers are paid. Accordingly, the only benefit of pursuing the argument in relation to the Custody Legal Aid Scheme, could be delay. Indeed there was so little practical merit in these points that it was notable that even the dissenting judgment in the Court of Appeal, delivered by Hogan J., which did consider that there was...
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