Minister for Justice v Olsson

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 13 January 2011
• Neutral Citation: [2011] IESC 1
• Court: Supreme Court
• Docket Number: [S.C. No. 54 of 2008]
• Date: 13 January 2011

Olsson v Min for Justice

Between:

Thomas Olsson

Appellant

AND

Respondent

Minister for Justice, Equality and Law Reform

[2011] IESC 1

Murray C.J.

Fennelly J.

Macken J.

O'Donnell J.

MacMenamin J.

S.C. No. 54 of 2008

THE SUPREME COURT

EXTRADITION

European arrest warrant

Legal aid - Whether requested person entitled to legal aid as of right - Whether Attorney General's Scheme satisfies rights - Whether Attorney General has discretion to provide legal aid - Whether surrender permissible where final decision to prosecute for offences in European arrest warrant not made - Whether surrender permissible where investigation continuing - Minister for Justice v McArdle [2005] IESC 76, [2005] 4 IR 260 followed; Carmody v Minister for Justice [2009] IESC 71, [2010] 1 ILRM 157 and The State (Healy) v Donoghue [1976] IR 325 approved - European Arrest Warrant Act 2003 (No 45), ss 10, 13(4) and 21A - Council Framework Decision (2002/584/JHA), recital 10, articles 1(1) and 11(2) - Respondent's appeal dismissed (54/2008 - SC - 13/1/2011) [2011] IESC 1

Olsson v Minister for Justice

Facts: The appellant was a citizen of Sweden and his arrest was sought by Sweden pursuant to a European arrest warrant issued in 2006. The appellant raised challenges to the warrant and declarations that the provisions of legal assistance under the Attorney General's scheme were in breach of the Council Framework Decision on the European arrest warrant (2002/584/JHA), implemented into Irish law by the European arrest warrant Act 2003, as amended. The High Court had rejected the appellant's contentions. The appellant sought leave to further introduce inter alia a report of the United Nations High Commissioner on Human Rights, media material and correspondence with lawyers. The issue arose as to the right to legal assistance as provided pursuant to the Framework Decision and whether the Act of 2003 required more extensive assistance and whether the discretion and provision of assistance ex gratia did not amount to proper provision. The issue also arose as to whether the appellant would be prosecuted at all after interview by the Swedish authorities, the effects of s. 21 of the Act of 2003 and whether a decision had been made to charge an individual the subject of surrender.

Held by the Supreme Court per O'Donnell J. (Murray, CJ, Fennelly, Macken, O' Donnell, MacMenamin JJ. concurring), that the appellant was repeatedly asked to apply for the Scheme. The Act of 2003 did not require that there be an unqualified right to legal assistance. There was no residual discretion of the Attorney General in European arrest warrant cases and this aspect of the appeal would be rejected. The Court was satisfied that under s. 21A no decision had been made to charge or try the requested person. The intention of the Swedish prosecution authority to bring the appellant before the Swedish Court for the purpose of being charged was but a step in the prosecution process. The High Court was correct to conclude that the respondent was not being sought only to be questioned as part of the investigation and that there was decision to charge the appellant within the meaning of the Act. Clear proof was needed to demonstrate to the contrary. The Court did not find that this had been established. The Court would dismiss the appeal.

Reporter: E.F.

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

MIN FOR JUSTICE v OLLSEN UNREP PEART 20.2.2008 2008/41/8979 2008 IEHC 37

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148 2006/39/8296 2006 IESC 23

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 11.2

EUROPEAN ARREST WARRANT ACT 2003 S13(4)

APPLICATION OF WOODS, IN RE 1970 IR 154

EUROPEAN ARREST WARRANT ACT 2003 S10

CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71

CONSTITUTION ART 38.1

CONSTITUTION ART 34.1

HEALY, STATE v DONOGHUE & ORS 1976 IR 325

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S21A(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 10

MIN FOR JUSTICE v MCARDLE 2005 4 IR 260 2006 1 ILRM 263 2005/38/7955 2005 IESC 76

ISMAIL, IN RE 1999 1 AC 320 1998 3 WLR 495 1998 3 AER 1007

DUNDON v GOVERNOR OF CLOVERHILL PRISON 2006 1 IR 518 2006 1 ILRM 321 2005/17/3552 2005 IESC 83

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1.1

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1

1 Judgment delivered by O'Donnell J. on the 13th day of January, 2011

2 The appellant is a citizen of Sweden. His arrest was sought by that country pursuant to a European Arrest Warrant ("EAW") issued on the 19 ^th December, 2006 for the purposes of prosecution in respect of four offences of robbery and arson alleged to have occurred on the 20 ^th and 21 ^st of October, 2005. The warrant was endorsed for execution on the 19 ^th December, 2006 and executed on the 5 ^th July, 2007. The appellant raised a number of challenges to the warrant and also issued separate plenary proceedings seeking declarations that the provisions of legal assistance under the Attorney General's Scheme ("the Scheme") were in breach of 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 ("the Framework Decision"), the European Convention on Human Rights and/or the Irish Constitution. All issues were heard together by the High Court in the European arrest warrant "EAW" proceedings. In MJELR v. Ollson [2008] IEHC 37, (Unreported, High Court, Peart J., 20 ^th February, 2008) the High Court rejected the appellant's contentions, and directed that he be surrendered to Sweden in accordance with the provisions of the European Arrest Warrant Act 2003 ("the Act of 2003" or "the Act"), as amended. Against that judgment and order the appellant has now appealed to this Court.

3 On the hearing of the appeal the appellant sought leave to introduce further evidence being:

4 (1) a report of the United Nations High Commissioner on Human Rights dated the 16 ^th July, 2008;

5 (2) a translation of a Swedish newspaper said to have been published "in November/December 2008" purporting to contain comments by a Swedish prosecutor on the substance of the case, and the EAW proceedings; and

6 (3) correspondence between the appellant's Irish solicitors and the gardaí and, more pertinently, correspondence between the solicitors and members of the Swedish police force.

7 The Court, having heard submissions, refused to admit the United Nations report and the translation of the newspaper, considering that they did not amount to evidence which could have a material bearing on the outcome of the appeal. While considering that there was an issue as to the admissibility of the correspondence, the Court nevertheless permitted the material to be opened de bene esse. The appeal then proceeded on its merits.

8 Although the proceedings, including the plenary proceedings and the interlocutory proceedings in the High Court, had together generated voluminous documentation raising a significant range of issues, the appellant through his counsel, Mr. Derek Kenneally S.C., acknowledged that in essence the appeal could be reduced to two issues: first, the question of the legal assistance available to the appellant; and second, whether the Court should refuse to surrender the appellant on the grounds that it was alleged that a decision had not been made to charge him with, and try him for, the offence as stated in the warrant (Under the EAW procedure surrender of a requested person may be sought for the purposes of either conducting a criminal prosecution or the execution of a custodial sentence or detention order).. This narrowing of the potential issues in the case was welcome, but it should also be said, was both realistic and proper.

Legal Aid

9 On a first and indeed subsequent reading of the papers in this matter, it might have appeared that the substantial part of the appellant's case was the contention that the legal fees available under the Scheme were so inadequate and so different from what could be obtained on taxation of costs, that the Scheme amounted to a failure to secure to the requested person the legal assistance to which it was asserted he was entitled. However, Mr. Kenneally S.C. disavowed any intention to advance such a case, or to make any argument which was in any way dependent on the level of remuneration available under the Scheme. Again, it should be said that this approach was both proper and prudent: any claim dependent on an assertion that another level of fees might have been attainable by taxation of costs would have been almost certainly doomed to failure and in any event, would also have had the appearance of an uncomfortable element of special pleading. Indeed, and in fairness to the lawyers appearing on behalf of the appellant, it should be said that they had expressly refused to seek certification under the Scheme, considering that it would be somehow inappropriate to criticise the adequacy of the Scheme, while at the same time seeking to benefit from it. Accordingly the point argued in this appeal is limited to the contention that the provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is requested pursuant to a European arrest warrant.

10 The appellant's case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as...