Minister for Justice and Equality v O'Connor

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 30 March 2017
• Neutral Citation: [2017] IESC 21
• Date: 30 March 2017
• Court: Supreme Court
• Docket Number: High Court Record No. 2011/297 Ext & 2012/1195P Court of Appeal No. 2015/48 Supreme Court No. S:AP:IE:2015/000064

BETWEEN/

The Minister for Justice and Equality

Applicant/Respondent

AND

Thomas O'Connor

Respondent/Appellant/Plaintiff

[2017] IESC 21

O'Donnell Donal J.

Denham C.J.

O'Donnell Donal J.

McKechnie J.

Clarke J.

MacMenamin J.

Dunne J.

Charleton J.

High Court Record No. 2011/297 Ext &

2012/1195P

Court of Appeal No. 2015/48

Supreme Court No. S:AP:IE:2015/000064

SUPREME COURT

European arrest warrant – Legal aid – European law – Appellant seeking to object to a European arrest warrant – Whether 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 European arrest warrant cases that do not have the skill to represent themselves

Facts: The appellant, Mr O’Connor, was convicted in the UK of tax fraud and his surrender was sought by the UK authorities to serve the sentence imposed upon him, and also for prosecution on a charge of absconding and breach of bail conditions. A single ground was advanced as an objection to the European Arrest Warrant (EAW) which was the absence of what was described as a statutory legal aid scheme. The plenary proceedings contended that the European Arrest Warrant Act 2003 was unconstitutional on a number of grounds. The High Court dismissed the challenge to the EAW and also dismissed the plenary proceedings. Edwards J considered that he was bound by the decision in Minister for Justice, Equality and Law Reform v Olsson [2011] 1 IR 384, to the effect that Article 11.2 of the Framework Decision provided for a right of legal assistance in accordance with national law, and did not itself require the grant of legal aid. Edwards J certified a ground of appeal in the EAW proceedings as follows: “Is it correct that Article 11.2 of the Framework Decision 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 that do not have the skill to represent themselves?” The Court of Appeal dismissed the appeal. The Supreme Court granted leave to appeal and identified two issues: (i) Whether there is inequality under Article 40.1 of the Constitution by virtue of the fact that persons facing surrender under an EAW are entitled to legal aid only by virtue of a discretionary administrative scheme, whereas similarly situated persons (in particular persons facing surrender to the International Criminal Court) have the right to legal aid based on a statutory footing, and if this does amount to unconstitutional inequality, whether this would render an order of surrender in the EAW proceedings inconsistent with the Constitution; (ii) Whether in the EAW proceedings, it is necessary or appropriate to refer a question of European law to the Court of Justice concerning the fact that legal representation for the purpose of defending an application for surrender under the 2003 Act is provided by means of an administrative scheme rather than (as in for example the relevant provisions in respect of the International Criminal Court) as a statutory scheme.

Held by O’Donnell J that legal aid in EAW cases is not made available merely through an administrative scheme at the discretion of the State, but as of right, enforceable in law. O’Donnell J held that it had not been established that any issue of European law arises in the fine distinctions that exist between the provision of legal aid under the 2013 Legal Aid Custody Issue Scheme and the Criminal Legal Aid Act 1962.

O’Donnell J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of O'Donnell J. delivered the 30th of March 2017

1 Although this appeal concerns both a European Arrest Warrant and plenary proceedings, it concerns in truth one issue: the application of the Legal Aid Custody Issues Scheme in European Arrest Warrant cases. It has been the subject of a comprehensive High Court judgment (Edwards J.) ( 2014] I.E.H.C. 640) and three judgments in the Court of Appeal (Ryan P. and Irvine J., Hogan J dissenting) ( [2015] I.E.C.A 227) in which the majority of the Court of Appeal upheld the High Court judge's decision. Those judgments are readily available. It is accordingly only necessary to identify the relevant facts which set the background to the legal argument advanced in these appeals.

2 The appellant, Thomas O'Connor, was convicted in the United Kingdom of tax fraud and his surrender is now sought by the United Kingdom authorities to serve the sentence imposed upon him, and also for prosecution on a charge of absconding and breach of bail conditions. A single ground was advanced as an objection to the European Arrest Warrant which was the absence of what was described as a ‘statutory legal aid scheme’. The basis for the claim is that the State has provided for the availability of legal aid for European Arrest Warrant cases through what used to be known as the Attorney General's Scheme, and is now the Legal Aid Custody Issue Scheme which came into force on the 1st January, 2013. The plenary proceedings contend that the 2003 Act is unconstitutional on a number of grounds. In the dissenting judgment of Hogan J. in the Court of Appeal, most focus was directed to the contention that the existence of a non-statutory scheme of legal assistance was a breach of Mr. O'Connor's Article 40.1 guarantee of equality before the law in that a person charged with substantive offences, for example fraud, in the Irish courts, would be entitled to apply for, and if he or she satisfied the conditions, obtain legal aid pursuant to statute namely the Criminal Legal Aid Act 1962. In the case of a person sought for trial in the International Criminal Court, s.23(5) and (6) of the International Criminal Court Act 2006 provide for the grant of legal aid under the Criminal Justice (Legal Aid) Act 1962 in cases where a person is sought under a warrant of the International Criminal Court. In the case of European arrest warrants however, the scheme is administrative and non-statutory.

3 The High Court dismissed the challenge to the EAW and also dismissed the plenary proceedings. Edwards J. considered that he was bound by the decision in this Court in Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 I.R. 384, to the effect that Article 11.2 of the Framework Decision provided for a right of legal assistance in accordance with national law, and did not itself require the grant of legal aid. While identifying a number of respects in which legal aid under the scheme could be said to differ from the legal aid available under the 1962 Act, he concluded there was no breach of Article 40.1 of the Constitution.

4 In relation to the equality claim, there were three features of the scheme which were said to treat an applicant unequally when compared either to the person accused of a criminal offence in the Irish courts, or a person whose surrender was sought under the International Criminal Court Act 2006. First, it was said that it was an administrative scheme rather than legal aid provided by statute. Second, provision was made in the 2013 scheme for application at the outset of the case but for certification only at the close of proceedings. This may have mirrored recent practice, but the published version of the immediately preceding version of the Attorney General's scheme provided for the recommendation to be made also at the commencement of proceedings. Finally, the scheme was administrative in nature, and was not binding on the Attorney General prior to the coming into force of the 2013 Scheme, or on the Legal Aid Board which administered it thereafter. The Attorney General or the Legal Aid Board respectively could refuse to honour any recommendation made by the courts. On the latter point, evidence was given in this case echoing evidence and assurances given in the Olsson case that the Board would consider itself bound in any EAW case to honour a recommendation made.

5 In the High Court, Edwards J. rejected this claim. However, he certified a ground of appeal in the EAW proceedings as follows:

‘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 that do not have the skill to represent themselves?’

6 In relation to the constitutional challenge, as already observed, Edwards J. acknowledged that there was a disparity of treatment but considered that the fundamental features of the scheme particularly in the light of the assurances given were such that there was no breach of any right to equality of treatment.

7 The Court of Appeal dismissed the appeal. On the certified point, the Court was unanimously of the view that it was bound by the decision in Olsson. Furthermore, although that court was now in a position to make a reference to the CJEU (which had not been a possibility in the Olsson case), the Court considered that it would be inappropriate to make any such reference. The Court was divided however on the constitutional claim. The majority (Ryan P. and Irvine J.) considered that no sustainable claim of unequal treatment could be made. Hogan J dissented. On the European law point, he acknowledged that the view of European legislators appeared to coincide with the view taken in Olsson but he considered that there was nevertheless an argument as to the entitlement to legal aid. However, given the fact that the Court was bound by Olsson, he did not consider it appropriate to make any reference. In relation to the constitutional claim, he acknowledged that the point was...