Court dismisses appeal claiming European Arrest Warrant legal aid scheme violates constitutional equality rights.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 227

Appeal No. 2015/048

Ryan P.

Irvine J.

Hogan J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)

Between/

The Minister for Justice and Equality

Applicant/Respondent

- and -

Thomas O’Connor

Respondent/Appellant

And

Between/

Thomas O’Connor

Plaintiff/Appellant

- and -

The Minister for Justice and Equality, Ireland and the Attorney General

Defendants/Respondents

JUDGMENT of Ms. Justice Irvine delivered on the 23rd day of October, 2015

1. I have read and considered the judgments of the President and Hogan J. on this appeal. Having done so, I gratefully adopt the

summary of the factual background to these proceedings set out by Hogan J. at paras. 1 to 11 of his judgment. Likewise I fully agree

with the President’s summary of the backdrop to the European Arrest Warrant Act 2003 (“the 2003 Act”) and in particular his

explanation of the Council Framework Decision of 13th June, 2002 (“the Framework Decision”).

2. Like my colleagues, I too am satisfied that the first issue posed for the Court’s consideration, namely whether Article 11.2 of the

Framework Decision imposes an obligation on the requested State to provide legal aid to a person whose surrender is sought under an

European Arrest Warrant (“EAW”), was earlier decided by an unanimous Supreme Court in Minister for Justice v. Olsson [2011] 1 I.R.

384.

3. In Olsson, O’Donnell J. considered the proper interpretation of Article 11.2. He did so having specifically identified the issue to be

decided on the appeal which he expressed in the following manner at para. 8 of his judgment:-

“Accordingly, the point argued on 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”.

4. He then proceeded to answer that question in light of the submissions of the parties commencing at para. 11 of his judgment. It is

unnecessary for the purposes of this judgment to set out the text of that part of his judgment here. Suffice to state that having

considered the same I reject as unsustainable the submission made on the appellant’s behalf that this Court could conclude that

O’Donnell J.’s analysis of the obligations imposed by the relevant Article might be considered obiter to his decision.

5. I also join with my colleagues in their judgment that it would be inappropriate and indeed improper for this Court to seek to

overturn or side-step the decision in Olsson, which is of course binding on this Court, by making a reference to the Court of Justice of

the European Union under Article 267 TFEU. To do so would be inconsistent with the hierarchical structure of our legal system and

would also undermine the concept of legal precedent which is of such importance in the context of providing certainty and

consistency in the judicial process.

The Plenary Proceedings.

6. Having regard to what is stated by Hogan J. at paras. 37 to 47 of his judgment, I am also satisfied that that the constitutional

argument based upon Mr O’Connor’s claim that the 2003 Act fails to vindicate his equality rights as guaranteed by Article 40.1 is

properly before this Court on appeal. The issue was fully canvassed in the pleadings before the High Court, the defendants engaged

with the issue in para. 12 of their defence and the argument rejected by Mr. Justice Edwards, at pps. 54 to 57 inclusive of his

judgement.

7. It is the relief which Mr. O’Connor seeks, should the Court rule in his favour, that causes me difficulty. Having claimed a breach of

his Article 40.1 rights he claims that “the 2003 Act is unconstitutional to that extent contravening inter alia the guarantee in Article

40.1 of equality before the law. As a consequence, his surrender under the EAW is not permitted.” He then claims the following

relief:-

“AND THE PLAINTIFF CLAIMS:

1. A declaration accordingly

2. Further and other relief

3. Costs”

8. In other words, Mr. O’Connor seeks to have the Court declare unconstitutional all of the provisions in the 2003 Act as relate to the

surrender of persons against whom an EAW has been issued regardless of the fact that, as is referred to by the President in his

judgment, he takes no issue with any particular provision of the Act itself in terms of its constitutionality. His real complaint is about a

lacuna in the legislation in that it does not provide him with a statutory regime for legal aid in the context of his EAW proceedings.

While there might in exceptional circumstances be grounds for striking down an Act of the Oireachtas by reason of the absence

therefrom of some particularly vital provision, this is, on the facts, certainly not such a case.

9. Notwithstanding the fact that the remedy sought by Mr. O’Connor is one which I would have to refuse even if satisfied as to the

correctness of his equality argument, I agree with Hogan J. that it would be wrong to refuse to consider granting Mr. O’Connor the

alternative relief of a declaration to the effect that the 2003 Act failed to vindicate his Article 40.1 rights, if satisfied as to the

validity of that claim. I do not reach that conclusion lightly in circumstances where it appears that the parties in the High Court did

not debate the form of relief that might be available to Mr. O’Connor if he was to only succeed in relation to the constitutional aspect

of his claim. However, I am satisfied that such relief could be afforded to Mr. O’Connor without visiting any injustice upon the

defendant.

Constitutional Argument.

10. Simply put, the claim Mr. O’Connor makes in his pleadings is that statutory legal aid regimes such as those provided for in the

Criminal Justice (Legal Aid) Act 1962 (“the 1962 Act”) and the Civil Legal Aid Act 1995 have been made available to individuals who

are in a comparable or less serious position to those the subject matter of EAW proceedings, in terms of what is at stake. He

contrasts his position to the individual whose surrender is sought to the International Criminal Court under the International Criminal

Court Act 2006 and a person facing relatively modest criminal proceedings in this jurisdiction. Both have an entitlement to a statutory

scheme of legal aid whereas none such is available to him although facing a request for his surrender under the 2003 Act. Thus,

insofar as their entitlement to be legally aided is concerned, persons whose surrender is requested under the 2003 Act are not treated

equally before the law in the manner required by Article 40.1. Their entitlement to legal aid rests upon the operation of what was at

the relevant time known as the Attorney General’s Scheme (“the Scheme”), renamed the Legal Aid (Custody Issues) Scheme as of 1st

January 2013, which is non-statutory in nature.

11. In the course of legal submission, significant emphasis was placed upon the provisions of s. 23(6) of the International Criminal

Court Act 2006 which entitles an individual whose surrender is sought to the International Criminal Court to statutory legal aid under

the 1962 Act. In terms of equivalence the position of such an individual could not be distinguished from his own when facing potential

surrender under the 2003 Act. The Court was urged to consider the disparity in the type of legal aid available to Mr. O’Connor under

the 2003 Act and to conclude that the same could not be justified. Accordingly, the guarantee afforded him by Article 40.1 required

that he be afforded a scheme of legal aid that is governed and regulated by statute.

12. In the course of the High Court proceedings Mr. Patrick Gilheaney, who was responsible for the administration of the Scheme,

gave evidence that the Scheme was of an ad hoc nature and applied to all persons arrested under the 2003 Act. He stated that

payment under the Scheme was not regarded as discretionary and that once the judge dealing with the matter made a

recommendation that payment would be made. As to eligibility thresholds, he advised that there were none such and that it was left

to the presiding judge to make an assessment as to whether the individual concerned had sufficient financial means to retain legal

counsel. The thrust of his evidence was that all recommendations for legal aid made in EAW cases are automatically honoured. As a

matter of practice, when EAW proceedings are first before the court, the lawyer who has accepted instructions indicates to the court

that they will be applying for the Scheme at the conclusion of the proceedings and at that point in time the judge invariably makes a

recommendation for payment. That being so it must be accepted that it is only at the end of the process that there is absolute

certainty as to whether or not those instructed will be paid for the services which they have provided. However, even if perchance

the presiding judge were to refuse the necessary recommendation, the individual whose surrender had been sought would have had

the benefit of full legal representation and advice from the start to the very end of the legal process. It would be the legal team that

would be at a loss.

Discussion.

13. The first matter to observe is that an individual’s right to legal aid, whilst provided for in the Criminal Justice (Legal Aid) Act 1962

does not stem from statute as was advised by Murray C.J. in Carmody v. The Minister for Justice [2009] IESC 71. At p. 653 he

stated the following concerning that right:-

“[63] One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a

statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely a

means of vindicating that right.”

14. Concerning the right to legal aid, O’Donnell J. in Olsson noted:–

“The right to be represented, and if unable to pay for representation to have such representation provided is really an

aspect of the right to a trial in due course of law guaranteed by Article 38.1 and the administration of justice required

under Article 34.1 of the Constitution. A trial on a serious charge without such legal assistance would fall short of those

constitutional standards (see The State (Healy) v. Donoghue [1976] I.R. 325). The Constitution focuses on the fairness of

the trial, not on the precise manner in which any representation is made available.”

15. Henchy J. at p. 353 of that judgment described the constitutional obligation to provide free legal advice and representation in

criminal cases in the following manner:-

“When the Constitution states that “no person shall be tried on any criminal charge save in due course of law” (Article 38

S1), that (the State guarantees in its laws to respect, and, as far as practicable, by its laws to defendant vindicate the

personal rights of the citizen” (Article 40.3.1), that “the state shall, in particular, by its laws protect as best it may from

unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property right of every

citizen” (Article 40.3.2), and that “no citizen shall be deprived of his personal liberty save in accordance with law” (Article

40.4.1), it necessarily implies, at the very least, a guarantee that the citizen shall not be deprived of his liberty as a

result of a criminal trial conducted in a manner, or in circumstances, calculated to shut him out from a reasonable

opportunity of establishing as innocence; or, where guilt has been established or admitted, of receiving a sentence

appropriate to his degree of guilt and his irrelevant personal circumstances.”

16. Looking first at the issue of equivalence in the context of an individual’s constitutional right to legal aid, in my view an individual

served with an EAW is not engaged in a process which by any stretch of the imagination could be considered equivalent to that which

happens in the course of a criminal trial. The individual whose surrender is sought is either due to stand trial at some future date in a

member state where their liberty will be at stake or will already have been convicted and lost their liberty by reason of a trial

conducted in another member state. His liberty is not at stake in the manner in which it is at stake in the course of a criminal trial.

17. In these proceedings Mr. O’Connor faces a request for his surrender to the English authorities to serve a prison sentence imposed

upon him there following his conviction on two charges of revenue fraud and also to face one charge of unlawful bail jumping. It is

also important to emphasise that his return is sought to another member state in the context of the legislation introduced as a result

the Framework Decision intended to streamline extradition among member states and in the context of a renewed trust and

confidence in the courts of the member states. It is convenient for me to borrow the following text from the introductory section of

the judgment of the President.

“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 in 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.”

18. It is true to say that the EAW proceedings potentially have serious consequences for Mr. O’Connor in that if he is returned to

England he will likely serve the prison sentence already mentioned. However, the proceedings before this Court do no more than seek

his transfer to the jurisdiction of another member state where he was found guilty of those charges thus depriving him of his right to

liberty. Following the approach taken by Murray C.J., when describing the extradition process in Attorney General v. Parke

(unreported, Supreme Court, 6th December, 2004) it may fairly be said that the proceedings under the 2003 Act should be considered

to be more in the nature of a sui generis inquiry. At p. 11 of his judgment he stated:

“I should first of all state the obvious, namely, that although extradition may entail serious consequences for a person

subjected to it, such as the loss of liberty, extradition proceedings are not a criminal process and are not in the nature of

a criminal trial. The burden of proof of facts which may rest on the applicant in these proceedings is not that of a criminal

trial. I hasten to add that the learned High Court judge did not approach this matter on such a basis and it is just that I

consider it appropriate at this point to distinguish between extradition proceedings and other forms of proceedings,

criminal and criminal and civil. An extradition proceeding, pursuant to the relevant Acts, has its own special features

which in a certain sense makes it sui generis.”

19. Accordingly, insofar as Mr. O’Connor seeks to equate his position in these EAW proceedings to the position of an individual facing

criminal charges in this jurisdiction and whose liberty is at stake, I am not satisfied his equivalence claim is well founded.

20. Even if Mr. O’Connor had not been convicted in England and his surrender was sought for the purposes of securing his return to

stand trial on charges of tax fraud, in my view he could not successfully argue that he was in an equivalent position to a member of

the public in this jurisdiction facing trial for some other criminal offence. It is only subsequent to his surrender that he will find himself

in an equivalent position to his Irish counterpart in this jurisdiction. As was stated by the Chief Justice in The State (O) v. Daly [1977]

1 I.R. 312, at 315:-

“There is a danger that the decision in Healy’s case may be misunderstood in the sense that it may be regarded as plight

applying to situations in circumstances which were not contemplated. It is worth recalling, therefore, that the decision in

that case applies only to the trial of persons charged with criminal offences and not to the earlier or ancillary stages of

criminal proceedings. It has to do with the circumstances in which the interests of justice and the requirements of a fair

trial necessitate that the person charged be provided with legal assistance if he cannot provide such for himself.”

21. That brings me conveniently to the Mr. O’Connor’s submission that the constitutional requirement that he be treated equally

before the law as per Article 40.1 mandates that he should be provided with legal aid under a statutory scheme equivalent to that

which would be enjoyed by an individual facing extradition under the International Criminal Court Act 2006.

22. On the facts it is very difficult to distinguish between the position of an individual arrested under the 2003 Act and one whose

surrender is sought under the International Criminal Court Act 2006. Each are sought to be surrendered to different authorities but for

the same purpose; either to serve a sentence already imposed or to meet charges that have been proffered. Both provide for the

surrender of fugitives from justice and the procedure set out for seeking and effecting surrender are almost identical. While it is of

course true to say that the 2006 Act deals with offences which are perhaps the most grave in the context of society as a whole such

as genocide, war crimes and crimes against humanity, it is possible that a person against whom an EAW has issued could equally be

facing or have been convicted of venous crimes which would carry equivalent penalties to those that might be imposed by the

International Criminal Court under the 2006 Act.

23. It must be accepted that the 2006 Act is different from the 2003 Act insofar as it provides as follows: –

“S23(5) The Court shall order that legal aid be provided for the arrested person if it appears to it that the person’s means

are insufficient to enable him or her to obtain such aid.

(6) On the making of such an order the arrested person shall be entitled to free legal aid in the proceedings and for that

purpose section 3 of the Criminal Justice (Legal Aid) Act 1962 shall apply, with the necessary modifications, in relation to

the person as if he or she had been granted a legal aid (trial on indictment) certificate under that section.”

24. It is accordingly clear that individuals facing surrender under these two separate Acts of the Oireachtas have legal representation

provided to them albeit that that such representation is delivered in a different manner. The individual facing surrender under the

2006 Act receives legal aid from the outset which is provided through the mechanism of the 1962 Act while his counterpart whose

surrender is sought under the 2003 Act will also have legal representation from the outset under the scheme but where it cannot

guaranteed with absolute certainty that the lawyers will be paid until the end of the process when the judge will decide whether or

not to make the necessary recommendation.

Conclusion.

25. I regret to say that while I am in agreement with Mr Justice Hogan that individuals facing a request for their surrender under the

Acts of 2003 and 2006 should be considered to be in an equivalent class for the purposes of the constitutional argument, I cannot

agree with him that Mr. O’Connor’s Article 40.1 rights have been breached by reason of the absence of a right to the benefit of a

statutory legal aid scheme under the 2003 Act.

26. It is important not to lose sight of precisely what right Mr. O’Connor maintains he is entitled to. He has a constitutional right to

have competent legal representation provided by the state if he is unable to pay for it himself. He does not have a right to have that

representation provided via any particular scheme, statutory or otherwise. The 1962 Act, to the extent that it makes provision for

legal aid, is merely a means whereby the constitutional right to legal representation may be vindicated, as was held by Murray CJ in

Carmody.

27. The mechanism by which such a right is vindicated is not itself relevant unless there is in substance a diminution in the

effectiveness of its delivery by virtue of some element pertaining to the method of its delivery. The fact that the Scheme is not on a

statutory footing or that it has features which are different from those of the statutory scheme cannot provide Mr. O’Connor with a

legitimate basis for complaint. Uniformity in the method of the delivery of legal representation is not what is required. The State has a

discretion as to how it will meet its constitutional obligations to provide legal representation for those entitled to it.

28. In order for Mr. O’Connor to succeed in his claim, which is one based upon an alleged invidious discrimination, he would have to be

in a position to establish by evidence that the Scheme provides a less effective method of vindicating his right to legal representation

when compared to that which would be provided to him under the 1962 Act.

29. There was no evidence led in the High Court to establish that the Scheme, as a matter of substance, is any less effective in

vindicating the rights of an individual served with an EAW than is the statutory legal aid scheme provided under the 1962 Act. There

was no evidence to suggest that persons in Mr. O’Connor’s position ever had difficulty obtaining legal representation from either

solicitors or barristers. Indeed, he did not seek to avail of the Scheme himself. Neither was there any evidence, for example, to

demonstrate that the quality of the lawyers willing to accept instructions under the Scheme, on the basis that they would only have

recourse to the Scheme for the purposes of their fees, were any less capable than those available to provide legal representation

under the statutory legal aid scheme. Neither, was any evidence lead to prove that any lawyer had ever refused to accept

instructions for a person against whom a EWA had issued on the basis that they had concerns that they might not be paid at the end

of the process because it would be left to the judge’s discretion as to whether or not to make the recommendation required to

support the payment of their fees.

30. Accordingly, even accepting Hogan J.’s analysis of the differences between the Scheme and the statutory legal aid scheme

provided for under the 1962 Act, I am not satisfied that Mr. O’Connor has demonstrated that the 2003 Act, because it does not

provide him with a statutory scheme of legal fails to vindicate his equality rights under Article 40.1. That this is so is principally

because he has failed to establish that a person facing surrender under the 2003 Act is provided with a materially less advantageous

system of legal representation because it is provided under the Scheme rather than under the statutory scheme available to

individuals such as those whose surrender is sought under the 2006 Act.

31. Finally, it is probably apposite to take judicial notice of the fact that the Attorney General’s Scheme is the method whereby the

constitutional right to legal representation is provided for many classes of litigants. For example, legal representation for many

custody related judicial reviews, which are of enormous import to those whose interests are at stake, is provided through the scheme.

The statutory scheme is not available to those wishing to pursue claims of this type. Nonetheless, such proceedings are regularly

pursued with the benefit of expert legal assistance provided through the Scheme.

32. Accordingly, I am satisfied that once effective legal assistance is available, be that by way of a statutory scheme or a non

statutory scheme such as the Attorney General’s Scheme, the precise method whereby that assistance is delivered is immaterial.

33. Legal assistance of such nature was available to Mr O’Connor from the outset of these EAW proceedings had he chosen to avail of

it. Accordingly, I am not satisfied that he has made out any claim that the defendants have failed to vindicate his equality rights

guaranteed by Article 40.1 of the Constitution.

34. For all of these reasons I would decline the declaratory relief sought and would dismiss the appeal.