Minister for Justice and Equality -v- O'Connor [2014] IEHC 640 (04 December 2014)

Judgment


Title:	Minister for Justice and Equality -v- O'Connor
Neutral Citation:	[2014] IEHC 640
High Court Record Number:	2011 297 EXT
Date of Delivery:	04/12/2014
Court:	High Court
Judgment by:	Edwards J.
Status:	Approved

___________________________________________________________________________

Neutral Citation: [2014] IEHC 640

THE HIGH COURT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED

[2011 No. 297 EXT.]

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

THOMAS O’CONNOR

RESPONDENT

AND

[2012 No. 1195P]

BETWEEN/

THOMAS O’CONNOR

PLAINTIFF

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Mr. Justice Edwards delivered on the 4th day of December, 2014.

Introduction
This judgment is in respect of two sets of proceedings, which are related and which were heard together for convenience.

The first set of proceedings relates to a European arrest warrant where surrender is objected to on the grounds that the European Arrest Warrant Act 2003 (hereinafter “the Act of 2003”), in failing to make provision for statutory based legal aid for requested persons, disregards Ireland’s obligations under E.U. law, and is also repugnant to the Constitution of Ireland, and also on the grounds of alleged abuse of process. Moreover, while the points of objection as pleaded advanced a plea of abuse of process, it was expressed to be “subject to the foregoing” i.e., subject to the claim that the Act of 2003 disregards Ireland’s obligations under E.U. law, and is repugnant to the Constitution. While it would have been open to the respondent to argue abuse of process without prejudice to his claims that the Act of 2003 was enacted in disregard of Ireland’s obligations under E.U. law, and/or that it is unconstitutional, he elected not to do this. Counsel for the respondent explained that his client was not capable of putting forward such a case on his own behalf, and yet if counsel were to proceed to argue any other ground of objection on his behalf, the respondent would be faced with a claim that his challenges to the Act of 2003 were moot in the circumstances. This had happened, said counsel, in Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 IR 384.

In Olsson, the respondent had sought to challenge the adequacy of the Attorney General’s Scheme in the context of what was required by the Act of 2003 and 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 (hereinafter referred to as “the Framework Decision”). It was suggested, inter alia, that these instruments required that he should be provided with legal aid as of right. The respondent contended that as he could not enforce by action any claim to legal aid under the Attorney General’s Scheme, (now The Legal Aid - Custody Issues Scheme) it could not be said that legal aid was available to him as of right. Addressing this argument, O’Donnell J. giving judgment for the Supreme Court, stated:

“[16] It must be apparent that there are a number of significant difficulties with this argument. Firstly, it is an assertion of theoretical form over actual substance. In this case the respondent was repeatedly invited to apply for the Scheme and was assured that it would be made available to him. Secondly, the respondent has at all stages of his involvement with the Irish courts system been represented by experienced and able lawyers. The rules of conduct of the legal profession in Ireland, and indeed the law of tort, do not distinguish between the standards required of lawyers paid on a commercial basis, under a legal aid scheme, on a ‘no foal no fee’ basis, or where they are providing services

pro bono

. The source of payment is not relevant to the nature of the representation afforded to the individual. The fact is that the respondent here received exactly the substance of what the assumed right requires: legal representation encompassing in this case, representation by senior counsel, junior counsel and a solicitor; and if necessary, it would be paid for by the State. At the hearing therefore, there was some debate as to whether in such circumstances the respondent had

locus standi

to raise any challenge to the Scheme. If the issue was compliance with the Framework Decision, then I would think the respondent does lack

locus standi

and indeed merit, since he had manifestly obtained representation in accordance with national law. In so much however as he contends that he has not received such representation

as of right,

he does have

locus standi

to make that challenge. Even then, it is difficult to see how the respondent, or anyone else in this position, is in any way affected as a matter of reality by the outcome of this case. Indeed even in the hypothetical case where the court refused to make a recommendation at the close of a case, or the Attorney General subsequently refused to follow the recommendation (and because of the stance taken by the respondent's lawyers that point could never arise in this case in fact), the requested person would still have received representation. The parties with a grievance in any such situation would be the legal representatives and not the client. The issue for the respondent is almost an academic one; and I would have had no hesitation in holding that the court would be entitled to refuse to grant any declaratory relief in the plenary proceedings in the exercise of its discretion on the grounds that the declaration, if granted, would be of no substantial benefit to the applicant.”

Accordingly, the alleged abuse of process ground was not argued or proceeded with in the hearing before this Court. Rather, senior counsel for the respondent informed the Court that his instructions were to appear solely for the limited purpose of challenging the Act of 2003 on the grounds stated, and that the legal team he was leading had no instructions, and was not retained, to argue any other ground.

Prima facie, this position appears to have been adopted on an informed basis, and notwithstanding that the rule in Henderson v Henderson (1843) 3 Hare 100 requires that a party should bring forward all of his potential claims/defences against another party at the same time and, subject to the rules of court, litigate them in the one set of proceedings. The Court proposes to express no view at this time concerning whether or not, in the event of the respondent being unsuccessful in his challenges to the Act of 2003, it might then be open to him to seek to raise abuse of process or any other ground of objection that might potentially be argued by him in the context of the present European arrest warrant proceedings.

The second set of proceedings, which was commenced by plenary summons, claims, inter alia but principally, a declaration that the Act of 2003, in failing to make provision for statutory based legal aid for requested persons, contravenes the guarantee of equality before the law in Article 40.1 of the Constitution of Ireland and is unconstitutional to that extent; and the Attorney General is named as a defendant in those proceedings as is required.

The European Arrest Warrant Proceedings
In the first set of proceedings the respondent is the subject of a European arrest warrant issued by the United Kingdom of Great Britain and Northern Ireland on the 13th June, 2011. The warrant was endorsed by the High Court for execution in this jurisdiction on the 22nd June, 2011, and it was duly executed on the 27th March, 2012. The respondent was arrested by Detective Sergeant John Costello on that date, following which, later on the same date, he was brought before the High Court (Sheehan J.) pursuant to s.13 of the Act of 2003. The respondent was advised of his rights in the course of the s.13 hearing, including his right to obtain or to be provided with professional legal advice and representation, and a notional date (the 16th April, 2012) was fixed for the purposes of s. 16 of the Act of 2003. The respondent was remanded on bail to the date fixed. The respondent was legally represented at the s. 13 hearing. No indication was given of an intention on the part of the respondent to apply for a recommendation under the Attorney General’s Scheme.

Thereafter, the matter was adjourned from time to time in the normal way to facilitate the filing by the respondent of points of objection and any affidavit(s) to be relied upon by him, and possibly the seeking of additional information by the applicant should it have been considered necessary to do so as a consequence of matters raised in the respondent’s points of objection and affidavit evidence.

Points of objection were filed by the respondent on the 19th June, 2012. As indicated above, only one objection was ultimately proceeded with, namely that pleaded in the following terms:

“The grounds of objection to the application for Mr. O’Connor’s surrender to the U.K. are -

1. Mr. O’Connor would qualify for statutory legal aid. But there is no statutory-based provision of legal aid, as required by Art. 11(2) of the Framework Decision (‘in accordance with national law’ contrast Art.5 (2) ‘under the law or practice’) as made part of national law by s.10 of the 2003 Act (‘subject to and in accordance with the Framework Decision’). On account of the nature of this objection, it should be heard and determined before any other objection is considered. Further, because the 2003 Acts (sic) amended makes no provision for legal aid, it is to that extent repugnant to the Constitution and, in particular, the State's obligations under E.U. law.”

The respondent does not consent to his surrender to the United Kingdom. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s.16 of the Act of 2003, directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of s.16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court’s jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied.

Uncontroversial issues in the EAW proceedings
The Court has also taken the opportunity to inspect the original European arrest warrant, which is on the Court’s file, and which bears this Court’s endorsement.

The Court has also received an affidavit of Detective Sergeant John Costello sworn on the 2nd July, 2012, testifying as to his arrest of the respondent and as to the fact that the respondent was personally known to him at the time of the said arrest. Detective Sergeant John Costello has expressed himself as being satisfied that the man he arrested was the same person as the person named in the warrant. Moreover, counsel for the respondent has raised no issue as to identity.

I am satisfied following my consideration of these matters that:

(a) The European arrest warrant was endorsed for execution in this State in accordance with s.13 of the Act of 2003;

(b) The warrant was duly executed;

(c) The person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

(d) The warrant is in the correct form;

(e) The warrant purports to be both a prosecution and a conviction type warrant. To the extent that it is a prosecution warrant, it seeks the rendition of the respondent so that he might face trial in the issuing state for the offence of failure, without reasonable cause, to surrender to the Custody of the Crown Court, contrary to s.6(2) of the Bail Act 1976. To the extent that it is a conviction warrant, it seeks the rendition of the respondent for the purpose of executing two concurrent sentences of 4 years and 6 months imprisonment imposed upon him on the 29th January, 2007 by a court in the issuing state, i.e., Blackfriars Crown Court, following his conviction before that court on the 26th October, 2006, in respect of two offences particularised in Part (e) of the warrant, and which are characterised as “Tax Fraud - Conspiracy to Cheat the Public Revenue, contrary to s.1(1) of the Criminal Law Act 1977”;

(f) The underlying domestic decisions, on which the European arrest warrant is based, are two warrants of arrest issued on the 1st December, 2006 by Blackfriars Crown Court. Having been convicted of two offences on the 26th October, 2006, he had been released on bail pending sentencing. The respondent then failed to answer his bail and did not turn up for his sentencing. One of the domestic warrants relied upon was issued for the purpose of arresting him so that he might be charged and tried in respect of his failure to answer bail, and the other was to secure his attendance before the Crown Court so that he might be sentenced in respect of the two offences, of which he had been convicted on the 26th October, 2006;

(g) The issuing judicial authority has invoked para. 2 of article 2 of the Framework Decision in respect of the two offences listed in Part (e), of which the respondent has been convicted, by the ticking of the box in Part (e) I of the warrant relating to “fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of European Communities’ financial interests”. Accordingly, subject to the Court being satisfied that the invocation of para. 2 of article 2 is valid (i.e. that the minimum gravity threshold is met, and that there is no basis for believing that there has been some gross or manifest error), it need not concern itself with correspondence in respect of those two offences;

(h) A detailed description of the circumstances in which the two offences, of which the respondent has been convicted, is set out in Part (e) of the warrant. There is no reason, upon a consideration of the underlying facts as set out therein, to believe that the ticking of the box relating to “fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of European Communities’ financial interests” was in error;

(i) The minimum gravity threshold in a case, in which para. 2 of article 2 of the Framework Decision is relied upon, is that which now finds transposition into Irish domestic law within s.38(1)(b) of the Act of 2003, as amended, namely that under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than three years. It is clear from Part (c)(1) of the warrant that the two offences, of which the respondent has been convicted, i.e. offences of tax fraud involving conspiracy to cheat the public revenue, contrary to s.1(1) of the Criminal Law Act 1977, each carried a potential penalty of up to life imprisonment. Accordingly, the minimum gravity threshold is comfortably met;

(j) The Court is required to be satisfied both with respect to correspondence and minimum gravity in so far as the offence for which the respondent is wanted for prosecution is concerned, i.e. the offence of failure, without reasonable cause, to surrender to the Custody of the Crown Court, contrary to s.6(2) of the Bail Act 1976;

(k) The Court has been invited to find correspondence in respect of the offence, for which the respondent is wanted for prosecution, with the offence in Irish law of failing to surrender to bail, contrary to s.13 of the Criminal Justice Act 1984. Having considered the detailed description of the circumstances, in which the alleged offence for which the respondent is wanted for prosecution is said to have occurred, this Court is satisfied to find correspondence with the candidate offence put forward;

(l) The minimum gravity threshold in a prosecution case, in which para. 2 of article 2 of the Framework Decision is not relied upon, is that which now finds transposition into Irish domestic law within s. 38(1)(a)(i) of the Act of 2003, as amended, namely that under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than twelve months. It is clear from Part (c)(1) of the warrant that the offence of failure, without reasonable cause, to surrender to the custody of the Crown Court, contrary to s.6(2) of the Bail Act 1976, carries a potential penalty of up to twelve months imprisonment. Accordingly, the minimum gravity threshold is met;

(m) No issue as to trial in absentia arises in the circumstances of this case. The respondent was present for the trial in which he was convicted of the two offences of tax fraud involving conspiracy to cheat the public revenue, contrary to s.1(1) of the Criminal Law Act 1977, and was present when the verdict of the jury was handed down. While he was absent for his sentencing due to his failure to answer bail this does not mean that he was tried in absentia;

(l) There are no circumstances that would cause the Court to refuse to surrender the respondent under s.21A, s.22, s.23, or s.24 of the Act of 2003, as amended;

(m) The Court is unaware of any circumstances that would cause it to consider that the surrender of the respondent is prohibited under Part 3 of the Act of 2003.

In addition, the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) Order 2004 (S.I. No. 4 of 2004) (hereinafter “the 2004 Designation Order”), and duly notes that by a combination of s. 3(1) of the Act of 2003, and article 2 of, and the schedule to, the 2004 Designation Order, the “United Kingdom of Great Britain & Northern Ireland” is designated for the purposes of the Act of 2003 as being a state that has under its national law given effect to the Framework Decision.

Controversial issues in the EAW proceedings
All of that being the case, the sole outstanding issues for this Court to consider are the controversial ones raised by the respondent in his remaining live point of objection, namely that because the Act of 2003, as amended, makes no provision for statutory legal aid for requested persons, it is in disregard of this State's obligations under E.U. law; and also that it is to that extent repugnant to the Constitution. As those issues are for all intents and purposes identical to the issues raised in the proceedings commenced by plenary summons, in which proceedings the respondent in the European arrest warrant proceedings is plaintiff, the Court will move at this point to consider and determine those proceedings.

The proceedings brought by plenary summons

The issues as pleaded

The Court would not normally recite the pleadings in a case. However, in this particular case it is, in the Court’s view, the most convenient and appropriate means of comprehensively identifying the relevant issues.

These proceedings were commenced by plenary summons dated the 26th November, 2012, following which an appearance was duly entered by the defendants. A statement of claim was also delivered by the plaintiff, which repeats verbatim the terms of the general indorsement of claim to the said plenary summons. However, it adds nothing to it. The statement of claim pleads:

“3. Were the legal aid regimes in either the Criminal justice (Legal Aid) Act 1962 or the Civil Legal Aid Act 1995 available to the Plaintiff in relevant proceedings, he would be eligible to avail of them.

4. A European arrest warrant (hereinafter ‘EAW’) was issued in England in respect of the Plaintiff, relating to a conviction on two charges of revenue fraud and also to a charge of unlawful bail-jumping.

5. On 27th of March 2012 he was arrested on foot of this EAW, got bail and thereafter filed grounds of objection, principally that

Mr. O'Connor would qualify for statutory legal aid. But there is no statutory-based provision of legal aid, as required by Art. 11(2) of the Framework Decision (‘in accordance with national law’ - contrast Art. 5 (2) ‘under the law or practise ...’) as made part of national law by s.10 of the 2003 Act (‘subject to and in accordance with...the Framework Decision’). On account of the nature of this objection, it should be heard and determined before any other objection is considered. Further because the 2003 Act as amended makes no provision for legal aid, it is to that extent repugnant to the Constitution and, in particular, the State's obligations under E.U. law." His other stated objections are made "SUBJECT TO THE FOREGOING".

6. Neither of the above mentioned two statutory regimes have been made applicable to proceedings under the EAW Act.

7. Because Art. 11(2) of the FD requires Member States to ensure that persons arrested under inter alia the EAW Act ‘have a right to be assisted by a legal counsel... in accordance with the national law of [the] State’, the EAW Act contravenes E.U. law to that extent.

8. Further, because Art 47 (3rd para) of the EU Charter on Fundamental Rights contains a guarantee of ‘legal aid’ and its Art 20 guarantees ‘equality before the law’, for much the same reasons as those stated next hereunder, the EAW Act also contravenes EU law to that extent.

9. Further still, because one or other of the said legal aid regimes has been made applicable to other proceedings, which either are comparable to or where what is at stake for the affected individual is no way as serious as in EAW proceedings, the EAW Act is unconstitutional to that extent, contravening inter alia the guarantee in Art 40.1 of equality before the law: for instance S.23(5) and (6) of the International Criminal Court Act 2006 and S.118 of the Criminal Justice Act 2006 (‘civil’ antisocial behaviour orders) as well as an extensive range of other civil proceedings.

10. Accordingly, since the Plaintiff would apply and be eligible for legal aid under either of the aforesaid regimes, but neither the EAW Act nor other legislation nor statutory instrument applies one or other of those regimes to EAW proceedings, the EAW Act is unconstitutional and contravenes EU law to that extent, a consequence of which the Plaintiff’s surrender under the aforesaid EAW is not permitted.

AND THE PLAINTIFF CLAIMS

1. A Declaration accordingly

2. Further and other relief

3. Costs”

In due course the defendants filed a defence to these claims, which they were later allowed to amend. It is not necessary to go into the circumstances giving rise to the need to amend the defence.

Paragraphs 1-12 inclusive, and paras. 21- 22, respectively, of the amended defence contain a series of denials and traverses in respect of each and every aspect of the plaintiff’s claims. However, the substantive defence offered by the defendants is that pleaded between paras. 13-20, inclusive, of their amended defence and is in the following terms:

“13. The Defendants have provided for a Scheme which provides for payment for legal representation in the High and Supreme Court for, inter alia, European Arrest Warrant applications. The said Scheme is entitled ‘The Legal Aid - Custody Issues Scheme’ (formerly the Attorney General's Scheme (as it then was)). Responsibility for the administration of this Scheme is assigned to the Legal Aid Board with effect as and from the 1st of June, 2012. Monies for the operation of the Scheme, including the payment for representation in the High and/or the Supreme Court are provided for by monies voted for by the Oireachtas and the budgetary responsibility for this Scheme rests with the Department of Justice and Equality and the Scheme is administered by the Legal Aid Board in pursuance of and in accordance with the terms of the Scheme.

14. In relation to the operation of the Scheme, the State has, in relation to European Arrest Warrant proceedings, undertaken to abide by any recommendation made by the High Court in relation to an application for the Legal Aid - Custody Issues Scheme, save where false or misleading information was provided at the time of the making of its recommendation and provided that the subject does not otherwise have the means to retain legal representation and otherwise comes within the Scheme.

15. It is open to a Respondent to an application for his or her surrender pursuant to a European arrest warrant to make application seeking representation under and in accordance with the Scheme or not or to otherwise provide for their representation, if desired, by privately engaging a solicitor and/or counsel in that regard.

16. The Plaintiff herein has not applied to seek payment for any representation pursuant to the provisions of the Scheme, nor did he apply in previous European Arrest Warrant application proceedings, Record No. 2007/107/EXT, for representation pursuant to the former Attorney General Scheme (as it then was).

17. The Plaintiff has himself engaged and instructed solicitors and counsel (including senior counsel) to act on his behalf and to provide him with representation for the purpose of the application made by the First Named Defendant for his surrender to the United Kingdom pursuant to the European arrest warrant in question. Similarly, in the previous European arrest warrant application proceedings, Record No. 2007/107/EXT, the Plaintiff engaged and instructed solicitor and counsel (including senior counsel) to act for him and provide him with representation for the purpose of those proceedings.

18. In the current European arrest warrant application proceedings (Record No. 2011/297/EXT) the Plaintiff has, through his solicitor and counsel, only advanced in argument one ground in support of the Points of Objection filed in relation to the application for his surrender viz that the lack of a statutorily (sic) basis for the costs of representation in relation to such proceedings makes the European Arrest Warrant Act, 2003, as amended, unconstitutional and/or contrary to the European Convention of Human Rights

19. As the Plaintiff was and is represented by solicitor and counsel of his choice throughout these proceedings and has neither applied under the former Attorney General's Scheme nor under the Legal Aid - Custody Issues Scheme as aforesaid and as no other argument has been put forward by solicitor or counsel on behalf of the Plaintiff in opposition to his surrender (other than the lack of a statutorily based provision for legal aid), the issue is moot and/or is also irrelevant to and does not found the basis for any opposition to the Plaintiff’s surrender to the United Kingdom, or for challenging the constitutionality of the European Arrest Warrant Act, 2003, as amended.

20. Since the Plaintiff has not established/nor sought to establish that he would be eligible for state-funded legal representation under any regime, the Plaintiff lacks the locus standi to challenge the constitutionality of European Arrest Warrant Act 2003, as amended or the applicability, sufficiency or the operation of the Legal Aid - Custody Issues Scheme.”

The plaintiff requested further particulars from the defendants concerning the “Legal Aid - Custody Issues Scheme” generally, including “[b]y and to whom has the State ‘undertaken to abide by any recommendation made to the High Court?’” The plaintiff also sought to ascertain the relevance to these proceedings of the fact that the plaintiff did not receive state funded legal assistance in the previous EAW proceedings in which he was involved. Finally, the plaintiff sought confirmation from the defendants that, if he were to advance objections to his surrender in the first set of proceedings other than his challenges to the Act of 2003, in circumstances where he was legally represented, they would not argue that his challenges to the Act of 2003 were moot.

The defendants replied to the said notice for particulars as follows:

“1. The Legal Aid - Custody Issues Scheme

(i) The former Attorney General's Scheme was renamed ‘The Legal Aid - Custody Issues Scheme’ on the 1st of January 2013. A detailed Provisions and Guidance document was published on the 1st of June 2013. In advance of that date, the Law Society of Ireland and the Bar Council of Ireland were each notified of the replacement of the Attorney General's Scheme and each notified their members by way of notifications on their respective websites.

In addition, the Legal Aid Board wrote to a significant number of solicitors recorded at that time as having made claims under the Attorney General's Scheme and notified them of the new guidelines under the re-named Scheme.

In addition, both the Legal Aid Board and the Department of Justice updated their respective websites to provide information on the re-naming of the Attorney General's Scheme and the new guidelines.

In addition, following the introduction of the re-named Scheme, Mr. Justice Edwards, the High Court Judge with responsibility for all matters pertaining to the European Arrest Warrant Act, 2003 made frequent references in open Court to the introduction of the Scheme and the new guidelines which apply.

(ii) In the Ollson proceedings an affidavit was sworn by Mr. Jevon Alcock, who was at that time a solicitor in the Chief State Solicitor's Office instructed in the case on behalf of the Attorney General. The affidavit stated:-

‘I say and believe and I am so informed that while the Attorney General's Scheme is described as an ex gratia scheme and reference is made to a residual discretion, in all European Arrest Warrant cases, which are a special case by reason of the Act of 2003, that discretion is exercised in only one way. The person who is the subject of the European Arrest Warrant and who obtains the benefit of a court recommendation for payment pursuant to the Attorney General's Scheme is consequently not dependent upon the goodwill or cooperation of the Attorney General for the payment of fees as suggested ...’ [Emphasis added]

On the basis of the foregoing affidavit and verbal assurances made on behalf of the State, the Supreme Court was satisfied that there is no residual discretion to refuse payment once a recommendation has been made.

(iii)Sec (ii) above.

(iv) In order to qualify for any state-funded legal assistance, one must first establish that one has not got the means to pay for legal representation. In the present case the Plaintiff has never asserted nor sought to demonstrate that he does not have the means to fund his own legal representation. The issue relates to the Plaintiff’s locus standi. It is therefore relevant that in the previous proceedings the Plaintiff did not apply for state funded representation and an acknowledgement was made on his behalf that he had the means to fund his own representation albeit on a limited basis.

2. It is a matter for the Plaintiff to argue or not to argue any objections put forward in his Points of Objection or not. He has only argued the legal and related ground of his objection.”

The final pleading was a reply to defence filed by the plaintiff, which was in the following terms:

“1. The current EAW proceedings commenced on 22 June 2011, almost 12 months before the ‘Legal Aid - Custody Issues Scheme’ because (sic) effective, and accordingly its operation is entirely irrelevant to the issues arising in these proceedings.

2. With regard to the former ‘Attorney General's scheme’ … effective at the relevant time -

i) It was expressly discretionary (in contrast with the two statutory schemes) in that the Attorney ‘

is not bound by the recommendation of the court’

ii) It was fundamentally unsatisfactory because, as administered in practice, there was no assurance that the relevant recommendation would be made until the case had concluded.

iii) That feature was particularly unsatisfactory where an EAW Respondent wanted expert or other evidence from abroad, as envisaged witnesses could not be given a reliable assurance that their reasonable costs and expenses would be defrayed at all, let alone with reasonable expedition.

3. In so far is it may be contended that these flaws in that scheme are misconceived and reliance is placed on a purported administrative practice to the contrary (comparable to that recorded in

Minister for Justice v. Olsson

) [2011] 1 I.R.374 at 384, which was never challenged there), the manner in which Edwards J.'s recommendation for the AG's scheme in

Minister for Justice v. McGinley

(2010/232 ext) was responded to by the Department of Justice (made on ...) shows that the discretion is not invariably ‘

exercised in only one way

.’ Repeated requests by Mr. McGinley's solicitor for payment were simply disregarded by the Minister. It was only on 24th July 2013 the very eve of the motion to strike on the defence herein (email: Jean Murray to J.P. Feeley) that the Department began addressing its mind to that neglect, which was not a coincidence.

4. Even if this very belated initiative from the Department is an answer to point 2 (i) above, it does not address the defects summarised in 2 (ii) and (iii).

5. Even if all of what is summarised above is rejected, with regard to the former or present scheme, because neither of them have any statutory or comparable basis.

i) They are not ‘

prescribed by law’

as envisaged by the Framework Decision;

ii) They further do not satisfy the over-riding EU law obligation of ‘equivalence’ and/or ‘effectiveness’;

iii) They do not provide treatment equal to that obtaining in the only substantially comparable regime, surrender to the International Criminal Court.”

It ought to be remarked that this reply to defence contains some inappropriate pleading and is to that extent unsatisfactory. The purpose of pleadings is primarily to define the legal and factual issues to be determined in the proceedings, and to ensure that each side knows the case that it has to meet, thereby ensuring respect for natural justice and in particular the principle of audi alterem partem. It has always been an important rule of practice that pleadings should not contain matters of evidence or be argumentative. Rather they should succinctly state the facts and legal principles on which the party in question relies, and where responding to another party’s pleadings (in the case of a defence, or reply to defence) they should in addition indicate what matters are accepted and what matters are denied. Clarity in pleading, and definition of the issues with precision, is particularly desirable in a constitutional action. Regrettably, the plaintiff’s reply to defence does not confine itself to stating additional facts and legal principles on which he relies, and traversing the pleas contained in the other side’s defence, but refers to matters of evidence (e.g. the references to requests by a solicitor to the Minister in a completely different case, and to inter partes e-mail correspondence between two named persons, again in the said completely different case) and descends into arguments that were more properly matters for submissions in the course of the trial.

The evidence adduced
The plaintiff and defendants called one witness each. In addition, the plaintiff had served a notice to admit facts on the defendants and the defendants had made certain admissions in a reply to notice to admit facts, and the facts admitted were duly read into the record.

The plaintiff’s testimony

The Court heard evidence from the plaintiff himself in the first instance. He told the Court that he had no legal training or experience in presenting legal cases. He had left school at age fourteen, having completed national school, and just one or two years of secondary school. He stated that he is presently in employment and earns approximately €350 per week. He claims to have no assets other than a family home jointly owned with his wife, which he estimates to be worth between €120,000 and €130,000 and on which there is an outstanding mortgage loan of €100,000 approximately. Moreover, such assets as he has are the subject of a freezing order obtained by the United Kingdom authorities on foot of a mutual assistance request.

The plaintiff was asked in cross-examination if he had been legally represented by a solicitor and counsel in earlier EAW proceedings in which he had been involved, and in which the warrant had ultimately been withdrawn by the issuing state. He agreed that that was the case. It was put to him that he had been awarded his costs in those proceedings, and that he had not applied in those proceedings for payment under the Attorney General’s Scheme. The witness claimed that he could not remember. In answer to further questions, he agreed that he had undergone a criminal trial in the United Kingdom and had been represented in that by a solicitor and counsel. He stated that he had had legal aid for that trial. It was then put to the plaintiff that in 2009, his solicitor at that time had sworn an affidavit exhibiting a statement of his, i.e. the plaintiff’s, assets and liabilities, in which he had stated that his family home was valued at €250,000 and that the outstanding mortgage was €109,000. He was asked to explain the discrepancy between the 2009 valuation of the family home and the valuation he was now putting on that property, and he responded that “Well, sure I don’t know, Sure that’s …everything has probably gone down in value”. He confirmed that he had been paying the mortgage since 2009, but stated that he had defaulted several times.

Counsel for the defendants then asked the plaintiff if he owned a yard and a 5,000 square foot warehouse at Ballinaboy, Kilteevan, Co. Roscommon. The plaintiff confirmed that this property was jointly owned by himself and his wife, and he further confirmed that it had been valued at €300,000 in the 2009 affidavit. However, he added “the bank have charges over it because we couldn’t pay loans” and that “[i]t’s on the point of getting …losing it, you know”. Pressed with regard to this, he stated that the bank had issued proceedings against him. He was initially unable to say what that property was presently worth, and then volunteered a valuation of “[m}aybe 100,000 or 120,000 now”. When asked how much the bank was owed, he said “I’m not rightly sure. It’s over 100,000 anyway. I don’t know the correct figure”. It was then put to him that in December 2009 it had been indicated that the bank was owed €245,000. He again stated “I don’t know the correct figure”.

The plaintiff agreed with counsel that he had run a construction company in England. When asked if he also ran one here he eventually stated, after some prevarication, “I suppose you could say I was working as a director of a company, running the business.” He accepted that company had traded in Ireland “for six or seven or eight months” until “things went bad and sure we had to go -- it went—closed up, like”. He confirmed the company had gone into liquidation, that the company had had no assets, that it had been in the business of plant hire, and that the name of the company had been O’Connor Plant Hire Limited, with a registered office in Roscommon “where the yard was”. The company had a rented yard, which was a different yard to the yard at Ballinaboy, Kilteevan, Co. Roscommon.

The plaintiff agreed that he was the subject of a property confiscation order made by the courts in England in the amount of Stg ฃ4,257,000.

It was then put to the plaintiff that he did not get a recommendation under the Attorney General’s Scheme in his previous EAW proceedings. The plaintiff responded “I don’t know what that means”.

It was further put to him that “you haven’t sought a recommendation for your representation for the purposes of these proceedings, have you.” He responded: “I don’t know what the solicitor has done.” He agreed with counsel that he was leaving those matters in his lawyers’ hands.

Under re-examination, the plaintiff was asked if the State had ever asked him about his assets, liabilities, or income, or communicated with him in any way concerning his means, and he replied “No, I don’t think so”.

That concluded the plaintiff’s testimony.

Patrick Gilheaney’s Testimony

The sole witness called on behalf of the defendants was Mr. Patrick Gilheaney, an Assistant Director in the Legal Aid Board, whose primary responsibility was looking after the Legal Aid - Custody Issues Scheme. Mr. Gilheaney told the Court that he had been in the civil service for approximately ten years, and had been with the Legal Aid Board for the last four or five years. He said that he was very familiar with the Attorney General’s Scheme, which had been relaunched and renamed in June 2012 as the Legal Aid - Custody Issues Scheme. However, the fundamentals of the scheme had not been changed. Following the enactment of the European Arrest Warrant Act 2003, the scheme had been made potentially available to persons arrested on foot of European arrest warrants, and it continues to be potentially available to them. He confirmed that he had sworn an affidavit in the present proceedings exhibiting the Scheme Provisions and Guidance Document issued by the Legal Aid Board in June 2013 in respect of the Legal Aid - Custody Issues Scheme.

Mr. Gilheaney then described the operation of the scheme. He said “at the very earliest opportunity an applicant will apply for access to the scheme to the Court, the Judge of the Court will acknowledge that application, at the end of the proceedings the Court will decide whether it wishes to make a recommendation either in favour or perhaps not in favour of recommending the scheme; that recommendation in the final court order would be sent to the Legal Aid Board. We subsequently will receive various claims from the legal team representing the applicant, and based on the recommendation and that (sic) papers put in front of us we'll consider the matter, obviously in conjunction with the scheme as published.” The witness agreed with counsel that the scheme was a non-statutory scheme, characterising it as an “ad hoc scheme”.

The witness told the Court that the legal aid board made payments on foot of the recommendations of High Court, or Supreme Court judges in relation to applicants on a daily basis, and he estimated that up to 400 such payments were made per year. Claims were processed “very, very quickly”, receiving initial consideration within 24 to 48 hours of being received.

When asked about the application process, he said: “The applicant applies to the Court. It's a matter for the Court to make a recommendation. The application does not come to us. It's made to the Court to the relevant judge. The case proceeds. It's acknowledged in the first instance by the Court, the application, the case proceeds and the judge makes a recommendation to the Legal Aid Board.” He added: “[t]here is a financial means testing document, but that is a matter for the Court, it's not a matter for the Legal Aid Board.”

The following exchange then took place between the Court and the witness:

“JUDGE: Well, I'm interested in that, Mr Gilheaney, if you will excuse me interrupting, because the Court has received no guidance as to what the relevant threshold might be. So how am I to know where to measure it? I mean, what in practice happens is the State's side indicates whether they're opposing, or not opposing, the application, but that's the only guidance I receive as to whether the level of means disclosed is or isn't sufficient for a person to retain legal counsel.

A. I think that's a fair comment, Judge, but as a scheme, as it was brought into place by the government, they just, it was decided not to introduce a threshold, for example, you're probably familiar under the civil legal aid scheme there's a threshold, or the garda station scheme there's a threshold, but the decision made was that it would rest with the Court in its wisdom to decide upon a person's financial eligibility or otherwise.”

When asked where the money to fund the scheme comes from, the witness stated that the money is voted by the Oireachtas every year. The Legal Aid Board administers the scheme on behalf of the Department of Justice and Equality, so financial responsibility rests with the Minister for Justice.

The witness told the Court that the availability of the scheme to a potential beneficiary depended upon an application being made for the benefit of it. He added: “Under the scheme an application should be made to the Court at the earliest possible opportunity whereby the applicant will indicate to the Court they wish to avail of the scheme. The judge will acknowledge that at that point in time and at the end of the scheme the judge will decide whether to make a recommendation. But at the start of the scheme they must make the application.”

Mr. Gilheaney was asked by counsel for the defendants “What is the position of the Legal Aid Board in relation to recommendations made by the Court?” The witness responded that in the Olsson case some years previously the State had indicated [to the Supreme Court] that where the judge makes a recommendation in favour of the scheme the State will abide by that recommendation. He said that to his knowledge it had done so.

Mr. Gilheaney was then cross-examined by counsel for the plaintiff. He was asked if he had any role in policy formation viz a viz the scheme. The witness replied: “Well, the scheme was originally put in place by the Attorney General's Office in conjunction with the department. That carried on for a long number of years. In June 2012 there was new guidelines issued. The guidelines didn't greatly change the policy in relation to it, and we wouldn't have a role on the actual policy, that obviously rests with the Minister.” Pressed further, the witness agreed that he personally had not had “any involvement in the policy of how the scheme is structured.” He accepted that his function was solely to administer the scheme.

When asked about dissemination of the scheme, the witness told counsel that a copy of it is published on the Legal Aid Board’s website, the Legal Aid Board sends copies of it to solicitors upon request, and it had been distributed to organisations such as the Bar Council “for distribution to people who maybe didn't avail of the internet”.

The witness was asked who had given the undertaking in the Olsson case, to which he had referred in his evidence in chief. He replied that the Attorney General’s Office had given that undertaking. When pressed to be more specific, he stated that a Mr. Jevon Alcock of that office had done so in an affidavit submitted to the [Supreme] Court in that case. He did not know if a contradictory affidavit had been filed, or whether Mr. Jevon Alcock had been cross-examined as to his affidavit.

Mr. Gilheaney was further asked by counsel for the plaintiff: “[A]part from that affidavit …is there any other undertaking by or on behalf of whoever is in charge of the scheme to abide by recommendations?” The witness replied that he was unaware of it. When asked if he was involved in administering the scheme when it was known as the Attorney General’s scheme, the witness said that he was, “for a year prior to it being renamed.” He was unable to say why it had been decided to re-name it.

The witness reiterated his view that the renamed scheme was substantially the same as the previous one, although “it probably provided guidelines to people who wanted to interact with the scheme and made their interaction much easier”. He stated that he did not anticipate that it would be replaced in the short term, though that was a matter for the Minister. He was unaware of any plans to put the scheme on a statutory footing.

The cross examination concluded with the witness, in response to a series of questions from counsel, successively disavowing any involvement in “the decision to amend the Criminal Justice Act to apply the criminal legal aid scheme to Asbos”, “the decision to amend the civil legal aid scheme to apply it to certain coroner's proceedings” and “the decision whereby under the International Criminal Court Act there's a provision for criminal legal aid to be given in International Criminal Court proceedings.”

In re-examination Mr. Gilheaney confirmed that it remains the position that the Legal Aid Board will abide by a recommendation made by the High Court in connection with the Legal Aid (Custody Issues) Scheme where such a recommendation is made.

Admissions by the defendants

By an admission of facts, pursuant to notice dated the 24th March, 2014 the defendants admitted the following facts for the purposes of these proceedings only, and subject to the qualifications or limitations indicated:

“The EAW proceedings in Minister for Justice and Equality v Gerry McGinley ran from 20 January 2011 to 30 July 2012 and concluded with the Belgian authorities withdrawing the arrest warrant.

The central issue was whether the surrender of the respondent could be ordered as a suspect for interrogation.

The defence of Mr. McGinley necessitated input from a Belgian legal expert. [Admitted subject to the qualification that: ‘The preconditions attaching to his engagement are not within the Defendant’s knowledge.’]

At the outset of the case, Junior Counsel indicated he would be seeking a recommendation under the Attorney General's Scheme which he later withdrew having engaged Senior Counsel. Following the withdrawal of the warrant by the Belgian authorities, Mr Ginley (sic) was awarded costs. The application for costs was opposed. The costs recoverable for the period between the 20th of January 2011 to the 8th of March 2011 were limited to an amount equivalent to that recoverable under the Attorney General's Scheme.

[Admitted subject to the qualification or limitation that: ‘No recommendation under the Attorney General’s Scheme was made by Mr Justice Edwards at the conclusion of the proceedings.’]

Ms. Jean Murray sent an email to the Legal Aid Board on the 24th of July 2013. The email provided information to the Legal Aid Board to facilitate the assessment of costs.

[Admitted subject to the qualification or limitation that that: ‘Ms. Jean Murray is a solicitor employed in the Crime division of the Office of the Chief State Solicitor.’]

The respondent / plaintiff’s arguments.

Alleged ineffective transposition

Article 11.2 of the Framework Decision provides:

“A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.”

One of core arguments advanced by the respondent / plaintiff is his contention that article 11.2 of the Framework Decision, correctly interpreted, requires each participating member state to make appropriate provision in its national law (this Court’s emphasis) not only to ensure that a person arrested on foot of a European arrest warrant, and facing possible surrender, has the right to be assisted by legal counsel, but also to ensure that such a person can, as of right, avail of a system of legal aid whereby that assistance will be provided at state expense where the person concerned does not have sufficient means to fund such assistance from within his or her own resources. The case was made that the Attorney General’s Scheme / the Legal Aid (Custody Issues) Scheme, which is merely an administrative scheme, and not a scheme established by law, does not represent a sufficient discharge by the Irish state of these obligations because an arrested person in the respondent / plaintiff’s position does not have an entitlement to legal assistance as of right. It was argued that while it may be the case that the discretion is only ever exercised one way (in the absence of fraud, misrepresentation, or clear evidence of personal financial means), where a Court has made a recommendation that an arrested person should have the benefit of the Attorney General’s Scheme / the Legal Aid (Custody Issues) Scheme, the beneficiary of such a recommendation still does not receive state funded legal assistance as of right. Consequently, the case was made that, because the Act of 2003 does not provide for statutory legal aid for persons arrested on foot of a European arrest warrant, there has been ineffective transposition of article 11.2 of the Framework Decision.

This argument was advanced notwithstanding the following judicial statements in earlier cases. In Minister for Justice, Equality and Law Reform v Olsson [2011] 1 IR 384, O’Donnell J., giving judgment for the Supreme Court, said:

“[10] Article 11.2 of the Framework Decision provides that a requested person has a ‘right to be assisted by a legal counsel … in accordance with the national law of the executing Member State’.

[11] The Framework Decision therefore imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise. It merely provides for a right of representation, and then only in accordance with the national law of the executing member state.”

Further, in Minister for Justice, Equality and Law Reform v McGuinness [2011] IEHC 289 (Unreported, High Court, Edwards J., 15th July, 2011) where it was argued before this Court that the interpretation of article 11.2 of the Framework Decision offered by O’Donnell J. in para. 11 of his judgment in Olsson was obiter dictum, I said:

“Contrary to what has been submitted by the respondent, this Court does not believe that this observation was made

obiter dictum

in circumstances where O’Donnell J was of the belief, and stated expressly, that ‘

[t]he appellant’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended’

, and following which he proceeded to then interpret just one provision in each of those instruments respectively, namely Article 11.2 in the case of the Framework Decision, and s. 13(4) in the case of the Act of 2003. In such circumstances, and in this Court’s view, the interpretations given have to be regarded as part of the

ratio decidendi

of the

Olsson

case.”

Having reached this conclusion, this Court then treated Olsson as a binding precedent in so far as the correct interpretation of article 11.2 of the Framework Decision was concerned, and followed it.

It has been argued in the present case that to the extent that existing jurisprudence suggests that article 11.2 of the Framework Decision does not go so far as to require that an arrested person should be provided with legal assistance as of right, the cases in question were wrongly decided, do not represent binding precedents on this question, and ought not to be followed.

In particular, the case was made that the correct interpretation of article 11.2 of the Framework decision was never in fact in issue in the Olsson case. Dr. Forde SC, who is leading counsel for the respondent / plaintiff in the present case, and who incidentally was also leading counsel for the respondent in the McGuinness case, submitted that a point not argued is a point not decided, and that to the extent that O’Donnell J. purported in Olsson to volunteer an interpretation of article 11.2 of the Framework Decision where it was not the subject of argument, or submissions from counsel, the learned Supreme Court judge’s remarks were obiter dictum.

Indeed, Mr. Olsson’s main grievance in the High Court was the level of fees under the Attorney General’s Scheme, and whether a recommendation would be honoured. However, the main subject of argument in the Supreme Court was the extent of representation required by s.13(4) of the Act of 2003. Counsel for the respondent / plaintiff submitted that in Olsson, the Supreme Court appeared to proceed upon an assumption that it was uncontroversial that the Framework Decision “merely provides for a right of representation”, and further proceeded, upon that assumption, to hold that because Mr. Olsson had counsel in his case who had argued all potential grounds for resisting surrender on his behalf, there was a sufficient discharge of that obligation. He submitted that, at most, para. 11 of the judgment of O’Donnell J. is an obiter statement with respect to a proposition that never was argued or debated. Since the point was never argued or debated before the Supreme Court the respondent / plaintiff is entitled, by virtue of his right to an "effective remedy" and his right to a “fair hearing” under Article 47, paras. 1 and 2, respectively, of the Charter of Fundamental Rights of the European Union (hereinafter “the Charter”) to argue it here and have the question determined de novo.

Moreover, counsel for the respondent / plaintiff contended that O’Donnell J.’s interpretation is quite simply wrong, and that in construing article 11.2 of the Framework decision in the manner in which he did, he failed to adopt a proper approach to the interpretation of what is an E.U. instrument, and to pay due regard to general principles of E.U. law such as the requirements of equivalence and effectiveness. Rather, counsel submitted, he appears to have approached the interpretation of article 11.2 of the Framework Decision by applying canons of interpretation more appropriate to indigenous legislation, and to have got it wrong on that account.

In so far as this Court’s decision in Minister for Justice, Equality and Law Reform v. McGuinness [2011] IEHC 289 (Unreported, High Court, Edwards J., 15th July, 2011) is concerned, counsel for the respondent / plaintiff contended that it is a decision per incuriam. The basis offered for this contention was that the Court allegedly misunderstood the respondent’s case and in consequence proceeded on the basis of three flawed assumptions, viz (i) that the respondent in that case was contending that the Framework Decision was directly applicable, which counsel submitted was not the case; (ii) that O’Donnell J.’s statement that the Framework Decision “imposes no obligation on the requested state to provide legal aid” meant that article 11.2 did not envisage the provision of legal aid, which counsel submitted is not the case; and (iii) that the issue of how to interpret article 11.2 of the Framework Decision correctly had been a justiciable controversy in the Olsson case, whereas in truth it had never been argued, and that the interpretation offered by O’Donnell J. at para. 11 of his judgment in Olsson was part of the ratio decidendi of that case and consequently represented a binding interpretation that the High Court was obliged to adopt and act upon, whereas counsel submitted it was no more than a statement made obiter dictum.

The section 10 argument

In the context of the European arrest warrant proceedings, the respondent further contended that he ought not to be surrendered because s.10 of the Act of 2003 (in the form in which it was enacted at the time at which the European arrest warrant proceedings herein were commenced) requires that any surrender be “in accordance with the provisions of this Act (i.e., the Act of 2003) and the Framework Decision” (this Court’s emphasis). The respondent argued that if, as he contends, article 11.2 of the Framework Decision, properly interpreted, requires that an arrested person should be able to avail of legal assistance as of right (i.e., a system of statutory legal aid), and Irish law does not provide for such assistance to be made available as of right, then the High Court cannot surrender him in accordance with the Framework Decision.

While s.10 of the Act of 2003 was amended by s.5 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 (hereinafter “the Act of 2012”) so as to remove the words “and the Framework Decision” from that section, the respondent contended that the amendment in question only operates prospectively, and in that regard he relied on s.27 of the Interpretation Act 2005. The Act of 2012 came into force on the 24th July, 2012 whereas the European arrest warrant proceedings herein commenced with the endorsement of the warrant on the 22nd June, 2011.

Interpretation of Article 11.2 of the Framework Decision

The respondent / plaintiff made the following submissions as to how article 11.2 of the Framework Decision should be correctly interpreted. He contended that the meaning of article 11.2 of the Framework Decision is a matter of E.U. law, and should be approached from that aspect rather than as an exercise in indigenous statutory construction. In support of this he cited Ministry of Justice, Republic of Lithuania v. Bucnys [2014] AC 480 at paragraphs 20 - 24.

The wording in controversy is, in the English language version, “a right to be assisted by a legal counsel.....in accordance with national law”. The Court’s attention was also drawn to the French language version i.e., “le droit de b้n้ficier des services d'un conseil ... conform้ment au droit national” and to the Irish language version “an ceart aige cuidi๚ a fháil ó dlíodóir...i gcomhreir leis an dlí naisi๚nta".

It was submitted that a preliminary point of significance is that article 11(2) of the Framework Decision is a departure from the more usual practice with Framework Decisions and Directives in two respects.

i) Normally, under the former TEU Article 34(2)(b) and TFEU Article 288, 3rd para., how a Framework Decision or a Directive is to be implemented is largely a matter for the member state's own political system: Lenaerts & Van Nuffel,

European Union Law

, 3rd Ed., (London, 2011) at 896-899 and 941. Unusually, article 11(2) specifies that the obligation it creates must be provided for by "national law".

ii) Normally, under the principle of national procedural autonomy, an E.U. measure does not specify procedures to be included in national implementing measures. Rather, member states usually enjoy an extensive autonomy in such matters. However, article 11(2) stipulates a significant national procedural step, i.e., to be "assisted by a legal counsel".

The respondent / plaintiff posed the question, what does a right to be “assisted by a legal counsel”/ “b้n้ficier des services d'un conseil” mean in the context of an individual who lacks the resources to pay for legal representation? He contended that it could mean one of a number of things:

i) One possibility, as occurred in

Olsson

, is that his chosen counsel voluntarily argues the entirety of his case (effectively on a

pro bono

basis). The present case is not such a case: counsel's retainer is limited to arguing the challenge to the Act of 2003 and related issues.

ii) A second possibility is that the State would fund the services of counsel, and sometimes of an outside solicitor (such as occurs under the Civil Legal Aid Act 1995), on his behalf.

iii) A third possibility is that the State would pay for solicitors and counsel to argue the case, such as occurs under the Criminal Justice (Legal Aid) Act 1962.

The respondent / plaintiff submits that in Minister for Justice, Equality and Law Reform v McGuinness [2011] IEHC 289 (Unreported, High Court, Edwards J., 15th July, 2011) this Court effectively held, at p.25, that what is stated in para. 11 of O’Donnell J.’s judgment in Olsson forecloses meanings (ii) or (iii) above, and that article 11.2 means no more than that if an individual, arrested on foot of a European arrest warrant, manages to secure the services of counsel, he is entitled to be represented by that counsel. It was submitted that this view was erroneous for several reasons.

First, the High Court in McGuinness was not bound to follow Olsson. Whether or not article 11.2 of the Framework Decision required some form of legal aid was not disputed in Olsson and, accordingly, the point was never argued.

Secondly, any judicial interpretation of the Framework Decision must take account of general principles of E.U. law and must not be conducted exclusively in accordance with the canons of statutory interpretation applicable to domestic legislation. It must take account of the fact that many terms in Framework Decisions have “autonomous meanings” and that “even concepts the meaning of which is left to national law may require to be construed as subject to limitations deriving from general European legal principles”, per Lord Mance JSC in Ministry of Justice, Republic of Lithuania v. Bucnys [2014] AC 480 at p.495, para. 21. The respondent / plaintiff contended that to date, no court in Ireland, neither the Supreme Court in Olsson, nor the High Court in McGuinness, has approached the interpretation of article 11.2 of the Framework Decision in that way.

Thirdly, account must be taken of the fact that the Framework Decision is published in twenty seven different but equally authentic language versions, in particular French (used, together with English, in the drafting process) and Irish (the first official language of this State). As to the potential significance of different languages being used in the drafting process, the Court was referred to Assange v. Swedish Prosecution Authority [2012] 2 AC 471.

Fourthly, any attempted judicial interpretation of the Framework Decision should consider whether the travaux preparatoire throw any light on how a provision in controversy is properly to be interpreted e.g. as occurred in Minister for Justice, Equality and Law Reform v. Bailey [2012] 4 IR 1, and in Assange v. Swedish Prosecution Authority.

Fifthly, account requires to been taken of the fact that Article 47, para. 3 of the Charter expressly guarantees “legal aid” for impecunious litigants.

Counsel for the respondent / plaintiff submitted that para. 11 of O’Donnell J.’s judgment in Olsson makes no reference whatsoever to these considerations. The Court was invited to contrast the single sentence in the judgment in Olsson devoted to the interpretation of article 11(2) of the Framework Decision with what counsel has characterised as “the meticulous analysis of the term ‘judicial authority” in Assange, and later in Bucnys.

It was submitted that the term “assisted by legal counsel” in article 11(2) must be interpreted in a manner consistent with general European legal principles. One such principle, which is long established, is the right of impecunious respondents to legal aid in cases where their liberty is in serious jeopardy. This right is said by counsel to derive from the equality of arms principle, which was significantly extended in Airey v. Ireland (1979-80) 2 E.H.R.R. 305 and is reflected in Article 47, para. 3 of the Charter. A bare right to be represented by the most distinguished counsel in the land is meaningless to the impecunious litigant.

In seeking to address the suggestion that the phrase "shall have the right to be (so) assisted” / a le droit de b้n้ficier des services” is no more than a prohibition against any practice whereby legal representation is not allowed, counsel for the respondent / plaintiff pointed out that such a prohibition already exists in E.U. law: vide article 47, para. 2 of the Charter, which provides - “everyone shall have the possibility of being advised, defended and represented”, and the case law following Airey v. Ireland [(1979-80) 2 E.H.R.R. 305. Counsel for the respondent / plaintiff submitted that in those circumstances “what is suggested would be otiose and there is an interpretative presumption against otiosity”.

Counsel has also sought to address the suggestion that that the phrase "shall have the right to be (so) assisted” / a le droit de b้n้ficier des services” somehow means, not that there should be a “law” / “droit” which makes provision for legal aid, but that it is sufficient if funded legal assistance is available on some informal, administrative, or “ad hoc” basis not specifically provided for in law. It was submitted that the reference in article 5(2) of the Framework Decision to “law or practice” / “droit ou de la pratique” provides the simplest answer to this. The Framework Decision itself clearly distinguishes between law and practice. If the obligation created in article 11.2 could be discharged by either law or practice the words “or practice” would appear in that provision, as they do in article 5.2. However, the sole reference is to law, and counsel submitted that that must be regarded as having been deliberate.

Counsel for the respondent / plaintiff further posed the question: what does the phrase “in accordance with the national law” / “droit national”, mean in the context of article 11.2 of the Framework Decision? He re-iterated his submission that because article 5(2) of the Framework Decision refers to the “law or practice”, the reference to “law” in article 11(2) cannot include practice. Had the drafters so intended, they would have said "in accordance with national law or practice". Accordingly, it was submitted, some purely administrative legal aid arrangement cannot suffice.

It was further submitted that national law here can only mean a regime provided for by statute or by a measure specifically referable to statute, e.g. the Criminal Justice (Legal Aid) Act 1962 and the Civil Legal Aid Act 1995. Article 15(2)(1) of the Constitution of Ireland provides that “[t]he sole and exclusive power of making laws (chun dlíthe a dh้anamh) for the State is hereby vested in the Oireachtas; no other legislative authority has power to [do so].” It was submitted that an ad hoc scheme such as the Attorney General’s Scheme / the Legal Aid (Custody Issues) Scheme is not law. In further support of this contention, the Court was informed that the position is similar in the United Kingdom and was referred to Pankina v. Secretary of State [2011] QB 376, and R v. Secretary of State, ex p. Fire Brigades Union [1995] 2 AC 513.

The Fire Brigades Union case involved an administrative scheme for criminal injuries compensation, an envisaged replacement scheme and legislation on the very subject that had not been fully implemented. It was submitted that, viewed through the prism of Irish constitutional law and principles, the Fire Brigades Union case stands for the proposition that, where an ad hoc administrative scheme for funding exists for an extended period and a law is then enacted to provide for such funding, that law should "occupy the field" and the administrative scheme should lapse. In particular, it is unlawful to introduce a somewhat revised administrative scheme where the matter is eminently capable of being addressed by legislation. Applying this idea to the context of the present case, counsel for the respondent / plaintiff submitted that the continuation of the Attorney General's Scheme by way of substituting for it the Legal Aid (Custody Issues) Scheme was unlawful.

Further, the Court was referred to the case of Stopyra v. District Court of Lublin, Poland [2013] 1 All E.R. 187, a decision of a divisional bench of the High Court of England and Wales, Queens Bench Division, that was concerned inter alia with ruling on the lawfulness of the system then in operation in that jurisdiction for the assessment of the means of an applicant for legal aid. The court held that the system in operation was (a) incompatible with the United Kingdom's obligations to the applicant [under the Framework Decision to vindicate his right to be assisted by legal counsel in accordance with the national law of the executing member state], and (b) contrary to principles of justice in that it did not result in a decision on legal aid within a proper time frame. Counsel for the respondent / plaintiff relied on this authority in further support of his client’s claim that article 11.2, properly interpreted, requires that a system of legal aid must be created by statute or otherwise established by law, and, to quote counsel, “with a certain minimum content.”

It was further submitted, although no authority was adduced to support the proposition, that the expression “in accordance” with law used in article 11.2 of the Framework Decision means created or established by law as opposed to allowed or not prohibited by law.

Counsel for the respondent / plaintiff submitted that the following features of the former Attorney General's Scheme and present Legal Aid (Custody Issues) Scheme offend against the principles he has identified as being required to fulfil the obligations created by article 11.2 of the Framework Decision.

• Application to avail of the scheme has to be made at the very outset, often when the individual or a solicitor may have no inkling of how difficult or protracted the case may be or the person's prospect of success.

• Although an application is made at the outset, it is only when the case concludes that a recommendation may be made. At the conclusion, a recommendation may be refused by the court, but there are no available criteria as to how this discretion is to be exercised; different judges may have radically different approaches to this. The Court is invited to contrast the position under the two existing statutory legal aid schemes created by the Criminal Justice (Legal Aid) Act 1962 and the Civil Legal Aid Act 1995.

• In terms of the critical question of financial eligibility, there are no available criteria concerning assets or income, which will disqualify a person from benefiting under the scheme. A court is left entirely at large, and different judges may have radically different approaches to this. Again, the Court is invited to contrast the position under the two existing statutory legal aid schemes created by the Criminal Justice (Legal Aid) Act 1962 and the Civil Legal Aid Act 1995.

• Requiring a court to deal with all disputes about financial eligibility, even if threshold criteria existed, offends against the separation of powers, since this is an entirely administrative function that can be discharged by the Legal Aid Board, as it is under the Civil Legal Aid Act 1995.

• The present scheme has never been amended to make it clear that the “discretion is exercised only in one way” in European arrest warrant cases.

• The scheme has been published as a statutory instrument, which counsel submits is required by the Statutory Instruments Act 1947, s.2.(3) and (4) of which applies to “any public agency exercising throughout the State any function of government or [so] discharging any public duties in relation to public administration”.

Counsel for the respondent / plaintiff contended that, while it is unarguable that article 11(2) of the Framework Decision has conventional direct effect or that is directly applicable, and he accepted that his client cannot make any such case, the requirements of article 11.2 must nevertheless be adhered to by the State. Article 11.2 requires interpretation and application in the manner urged by the respondent / plaintiff.

Finally, and in conclusion on this issue, counsel for the respondent / plaintiff submitted that insofar as it may be argued that there is no prejudice to his client (a proposition, which is not accepted), he relies on the law and not on some judicial equity. One of the fundamental tenets of the Constitution and of the E.U. treaties is the "rule of law", and he is invoking his entitlements in law.

Alleged unconstitutionality of the Act of 2003

In the written submissions of counsel for the respondent / plaintiff, it was submitted that his client’s surrender on foot of the present European arrest warrant is “implicitly prohibited because, under Article 40.1 of the Constitution of Ireland and/or equality requirements in EU law, he is entitled to legal aid equivalent to that provided for in International Criminal Court cases and/or other comparable proceedings.”

It was submitted that comparable legislation gives persons in a position similar to the respondent / plaintiff a right to legal aid under the Criminal Legal Aid Act. By way of example, the Court’s attention was drawn to s.23(6) of the International Criminal Court Act 2006. Accordingly, applying Article 40.1 of the Constitution of Ireland, and Article 20 of the Charter, and the presumption of constitutionality, all references to "legal representation" in s.13(4)(b) of the Act of 2003 must be construed as referring to an equivalent entitlement to that provided for elsewhere. If it is incapable of being so construed, the Act of 2003 is unconstitutional to that extent.

It was further submitted that it is well established that an Act can be unconstitutional to the extent that it fails to make provision for certain entitlements e.g. DK v. Crowley [2002] 2 I.R. 744 and McCann v. Monaghan District Judge [2009] 4 IR 200.

Counsel for the respondent / plaintiff contended that Article 40.1 of the Constitution goes much further than the European instruments discussed herein, e.g. article14 of the European Convention on Human Rights and Article 21 of the Charter. Article 40.1 requires that comparable relevant circumstances be treated similarly, and that those in different relevant circumstances be treated differently: Fleming v. Ireland [2013] (Unreported, Supreme Court, 29th April, 2013) at paras. 117 et seq.

Counsel for the respondent / plaintiff has urged upon the Court that disputes about equality almost invariably focus primarily on comparators, i.e. like circumstances. As to what constitutes an appropriate comparator, the Court will be concerned with whether "[t]he essential similarities... are altogether more striking than their differences": Secretary of State v. AF (No 3) [2010] 2 AC 269 at ... para. 112 (Lord Brown), followed in, inter alia, Mastafa v. Her Majesty's Treasury [2013] 1 WLR 1621 (per Collins J., at p. 1631, para. 16). The context here is legal aid to defend proceedings for the surrender of a person wanted for trial or punishment by a foreign Court. In this regard, account also should be taken of statute-based legal aid being made available in numerous far less serious contexts, eg. to defendants in ASBO applications (Criminal Justice Act 2006 s.118); in certain coroners' proceedings (Courts and Civil Law (Miscellaneous Provisions) Act 2013, s.24 (b)); and under the Civil Legal Aid Regulations, S.I. 346 346/2013.

It was submitted that insofar as it may be contended that, for these purposes, conventional extradition and the European arrest warrant regimes are comparable (and accordingly such legal aid as obtained in extradition suffices here), that proposition was rejected in O'Sullivan v Irish Prison Service [2010] 4 IR 562 (at p.595, para. 70) in the context of restricting rights of appeal.

Counsel for the respondent / plaintiff posed the question “are there other legal regimes with which the European arrest warrant regime bears relevant comparison?”, and submitted that there are two.

One is the International Criminal Court regime “for arrest and surrender of persons”; the quotation is from the title to part 3 of the International Criminal Court Act 2006 (hereinafter the Act of 2006). It was submitted that, while not absolutely identical, their essential similarities are far more striking than their differences. Both originate from initiatives by international institutions, the E.U. and the U.N.; both are rendered applicable in Irish law by specific legislation, the Act of 2003 and the Act of 2006 respectively; both provide for the "surrender" (i.e., rendition not "extradition") of fugitives from justice; both envisage requests for surrender being made by a designated judicial authority rather than via diplomatic or police channels; both reject a correspondence of offences requirement, although for non-serious offences, the EAW permits such a requirement; both remove executive discretion to block surrender, although s.32 of the Act of 2006 gives the Minister a limited discretion in that regard; and finally the procedures set out for seeking and for effecting surrender are almost identical in most respects.

It was further submitted that another legitimate comparator is the Civil Legal Aid Act 1995, and in particular s.28(5) thereof, which provides for legal aid in a very extensive range of circumstances that, for the individual, are far less drastic than surrender for trial or punishment to another E.U. Member State.

Counsel for the respondent / plaintiff further urged upon the Court, that among what may be described as the "fundamental interests" (that require to be protected) where disparity of treatment is presumptively unconstitutional, is the administration of justice, especially where personal liberty is implicated, e.g. McMahon v. Leahy [1984] I.R. 525. That case concerned how the State approached the "political offence" exception to Part III of the Extradition Act 1965, with reference to the conflict in Northern Ireland. It was further submitted that B.G. v. Murphy [2011] 3 IR 748 represents a further recent example of the disparate treatment of an accused being held to be invalid. Further, the Court was referred to the decision of the United Nations Human Rights Committee in Kavanagh v. Ireland, (14th April, 2001) where the U.N. Human Rights Committee held that the manner in which the applicant was returned for trial before the Special Criminal Court contravened Article 26 of the UN Covenant on Civil and Political Rights. It was further pointed out that a somewhat more tolerant attitude is adopted towards disparities in civil litigation e.g. Murphy v. GM [2001] 4 IR 113, Dornan Research and Development Ltd. v. Labour Court [2001] 1 I.R. 223 and Brohoon v. Ireland [2011] 2 IR 639. However, none of these cases concerned personal liberty.

In conclusion on this issue counsel submitted that, although alert to the disparity identified in this case for many years, the State has not seen fit to remedy it. It has not been remedied even though the Act of 2003 was amended in 2005, 2009 and 2012. Accordingly, while the State must have had some grounds for not doing so, no such ground is pleaded in the amended defence. Moreover, the State has not sought to adduce evidence on the question. Accordingly, counsel for the respondent / plaintiff submitted, the Act of 2003, to the extent that it fails to provide for some kind of statutory legal aid scheme, is unconstitutional, and it further contravenes the Charter and the E.U. principle of equivalence.

The Court’s analysis and decision

Locus Standi

The applicant / defendants have raised a preliminary objection that the plaintiff /respondent lacks the necessary locus standi to make the case that he seeks to make. They rely in that regard on Cahill v Sutton [1980] I.R.269, Lancefort Ltd v An Bord Pleanala (No. 2) [1999] 2 IR 270; A v the Governor of Arbour Hill Prison [2006] 4 IR 88 and Riordan v Government of Ireland [2009] 3 IR 745. They say that the respondent /plaintiff bears the burden of proving that he would be entitled to legal aid under the Criminal Justice (Legal Aid) Act 1962, or an equivalent statutory scheme, and would have the benefit of such legal aid but for the fact that neither the Act of 2003 nor any other legislation extends it to his situation. However, at no stage in these proceedings has the respondent / plaintiff asserted that his means are insufficient to enable him to obtain legal assistance from within his own resources, and a belief that he would qualify for legal aid under the Criminal Justice (Legal Aid) Act 1962, or similar legislation if it applied to him. In particular, he did not state that in terms in his oral testimony. Moreover, he has never at any time proffered a statement of his means.

The Court is not disposed to uphold the objection based on locus standi. Viewed from its high-water mark, the evidence before the Court concerning the respondent / plaintiff’s means is that he now has an income of only €350 a week, and such assets as he possesses are in large measure pledged as security to financial institutions for substantial loans that have yet to be repaid, and that those assets are in any event the subject of a freezing order. It can certainly be inferred from this that his financial situation is an unhappy one, and that he would most likely qualify for legal aid under the Criminal Justice (Legal Aid) Act 1962 if he was facing a criminal charge in this jurisdiction.

Interpretation of article 11.2 of the Framework Decision

Whether or not the interpretation of article 11.2 of the Framework Decision given in Olsson was part of the ratio decidendi of that case, or a statement made obiter dictum, represents a fairly arid controversy in this Court’s view.

As this Court pointed out in its judgment in the case of Minister for Justice, Equality and Law Reform v McGuinness [2011] IEHC 289 (Unreported, High Court, Edwards J., 15th July, 2011), the judgment of O’Donnell J. expressly states that:

“[9] The respondent's case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended. The proper approach to the interpretation of these provisions was clearly set out in the judgment of this court delivered by Murray C.J. in

Minister for Justice v. Altaravicius

[2006] IESC 23, [2006] 3 IR 148, at p. 155:-

‘[27] … Although the framework decision cannot, in terms of community law, have direct effect (since Article 34.2(b) of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a significant number of its provisions, such effect and make it directly applicable within the State. This is achieved,

inter alia,

by s.10 of the Act of 2003 which provides that where a European arrest warrant has been duly issued in respect of a person “that person shall, subject to and in accordance with the

provisions of this Act and the Framework Decision

, be arrested and surrendered to the issuing state”. The Act of 2003 does not confine itself to including the framework decision in a schedule for reference purposes. There are other provisions of the Act of 2003 which require the courts to interpret and apply the framework decision directly but it is sufficient for present purposes to note that s.10 means that in deciding on an application for a surrender pursuant to the terms of the Act of 2003 the court must apply both the provisions of the Act and the framework decision’ (emphasis in the original).

[10] Article 11.2 of the Framework Decision provides that a requested person has a ‘right to be assisted by a legal counsel … in accordance with the national law of the executing Member State’.

(emphasis added by this Court).

Accordingly the proper interpretation of article 11.2 was, in the Supreme Court’s view, central to making an appropriate determination in the case. It seems to this Court inherently unlikely in those circumstances that the meaning of article 11.2 would not have featured at all in argument before the Supreme Court. However, I was informed by counsel for the respondent / plaintiff that that is indeed the position, and so, given counsel’s duty not to mislead the Court, I must accept that representation at face value. The Court acknowledges that a submission based on the issue, not having been argued before the Supreme Court in Olsson, was also made to this Court in McGuinness. However, it was given “a much lighter rub” than in this case, where the issue was very strongly pressed in argument.

However, even if it was the case that there was no debate before the Supreme Court concerning the correct interpretation of article 11.2 of the Framework Decision, such that the interpretation placed on that provision by O’Donnell J. must strictly speaking be regarded as an obiter dictum, it is an interpretation with which this Court happens to agree. This Court which has now had the benefit of listening to a debate of the sort that counsel for the respondent / plaintiff complained did not take place in the Olsson case, is not persuaded that article 11.2 requires to be interpreted other than as stated by O’Donnell J. in Olsson. This Court has read and reread the Olsson judgment and remains of the view that it should follow O’Donnell J.’s interpretation of article 11.2 as stated in para. 11 of that judgment, regardless of whether it has the status of binding precedent, or merely that of a persuasive obiter dictum.

In arriving at that conclusion this Court has sought, in considering the correct interpretation of the provision in question, to apply the approach commended to it by counsel for the respondent / plaintiff, and has endeavoured to have due regard to fundamental principles of E.U. law, in particular that of equivalence. In that context, the Court considers that it is somewhat questionable whether Article 47, para. 3 of the Charter of Fundamental Rights, on which so much reliance was placed by counsel for the respondent / plaintiff, applies at all to European arrest warrant cases for the reasons stated in this Court’s judgment in McGuinness. However, even if it does apply, that provision makes no reference to statutory legal aid or to a legal aid scheme established by law. It states simply that “[l]egal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” It is clear that the emphasis is on “effective access to justice” and there is nothing in that provision to suggest that a state may only seek to ensure effective access to justice by means of a statutory scheme or a legal aid scheme otherwise established by law. The important thing is that a person has effective access to justice. It is in that respect that equivalence is required.

In the case of a person arrested on foot of a European arrest warrant, effective access to justice is in fact afforded by the guarantees provided in s.13(4) of the Act of 2003, coupled with the possibility, which exists for persons unable to fund legal representation from within their own resources, of seeking a recommendation under the Attorney General’s Scheme / the Legal Aid (Custody Issues) Scheme that such representation should be paid for by the State. The evidence given in this Court by Mr. Gilheaney, which mirrors that given to the Supreme Court by Mr. Jevon Alcock in the Olsson case, was that where a judicial recommendation is granted the Legal Aid Board invariably follows that recommendation. In reality, the discretion, such as it is, is only ever exercised one way, that is in favour of the applicant under the scheme, save, of course, and as provided for in the published scheme, in those relatively rare cases where fraud is suspected based upon evidence of substantial non-disclosure, or misrepresentation, concerning the applicant’s financial means.

The Court completely accepts that the Attorney General’s Scheme / the Legal Aid (Custody Issues) Scheme is not law, that it is non-statutory in origin, and that it has not otherwise been established by law. It is simply an ad hoc administrative scheme. However, in this Court’s view there is no requirement for it to be a statutory scheme or otherwise established in law. The important thing is that that for which it provides, which I am satisfied on the evidence before me is effectively available as of right, should not be contrary to law or prohibited by law. The Court is unimpressed with the argument that the phrase “in accordance with national law” must be given the narrow construction contended for on behalf of the respondent / plaintiff. His case was that in order for “the right to be assisted by a legal counsel” to be “in accordance with national law” the entitlement to receive such assistance must be provided for in legislation, as opposed to by means of an ad hoc administrative scheme that is merely lawful in the sense of not contravening, or not being prohibited under, national law. The respondent / plaintiff has produced no authority in point to support his contention that legislation is required.

To the extent that the respondent / plaintiff drew support for that proposition from the case of R v. Secretary of State, ex p Fire Brigades Union [1995] 2 AC 513, the Court agrees with a submission made by counsel for the appellant / defendants that it is readily distinguishable on its own particular facts from the circumstances in which the Attorney General’s Scheme / the Legal Aid (Custody Issues) Scheme was established and is operated. The facts of the case, which are succinctly stated in the headnote to the report, were as follows:

"The Criminal Injuries Compensation Scheme introduced under the Crown's prerogative powers in 1964 was enacted by sections 108 to 117 of and Schedules 6 and 7 to the UK’s Criminal Justice Act 1988. The scheme provided for compensation for victims of violent crime on a case by case basis calculated substantially on common law principles applicable in actions for tort. By section 171(1) of the Act of 1988 the enacted provisions were expressed to come into force ‘on such day as the Secretary of State may . . . appoint.’ No such appointment was made and the nonฌstatutory scheme remained in operation. In 1993 the Secretary of State indicated that the enacted provisions would not be brought into force but that the existing non-statutory scheme would be replaced by a non-statutory tariff scheme whereby awards would be made ex gratia by reference to a tariff fixed according to particular categories of injury. In July 1994 the House of Commons, by the Appropriation Act 1994, approved supply estimates which included, under the Home Office vote, an amount in respect of criminal injury compensation under the tariff scheme. In proceedings for judicial review the applicants, representing persons liable to suffer injury as victims of violent crime, sought declarations that the Secretary of State by failing or refusing to bring into force the enacted provisions had acted unlawfully in breach of his duty under the Act of 1988 and that by implementing the tariff scheme he had acted unlawfully in breach of his duty under the Act and had abused his prerogative powers. The Divisional Court dismissed the application. The Court of Appeal allowed in part an appeal by the applicants, declining unanimously to grant the first declaration sought but by a majority granting the second declaration.”

The Secretary of State appealed to the House of Lords, which dismissed the appeal, holding:

“that section 171(1) of the Criminal Justice Act 1988 imposed a continuing obligation on the Secretary of State to consider whether to bring the statutory scheme in sections 108 to 117 into force; that he could not lawfully bind himself not to exercise the discretion conferred on him; that the tariff scheme was inconsistent with the statutory scheme; and that, accordingly, the Secretary of State's decision not to bring sections 108 to 117 into force and to introduce the tariff scheme in their place had been unlawful.”

When the facts of the Fire Brigades Union case are considered, it is indeed easy to appreciate why the House of Lords felt that the replacement administrative scheme at issue in that case was unlawful. However, there is a significant point of distinction between that case and the present case. Unlike the original Criminal Injuries Compensation Scheme set up in 1964 as described in the Fire Brigades Union case, neither the former Attorney General’s Scheme nor the Legal Aid (Custody Issues) Scheme has ever been placed on a statutory footing. In this Court’s view the Fire Brigades Union case provides it with very little assistance.

Further, with reference to the Stropya case relied on by the respondent / plaintiff, the fact that in the U.K. there is a statutory legal aid scheme is neither here nor there. Each member state is entitled to transpose the Framework Decision in the manner in which it sees fit, providing of course that the mode adopted represents an effective transposition and discharges fully the member states obligations under the Framework Decision. Moreover, it is interesting to note that the judgment of the President of the Queens Bench Division actually cites Minister for Justice, Equality and Law Reform v Olsson [2011] 1 IR 384 in support of the proposition that a system of means testing in the context of providing assistance by legal counsel is compatible with a member state’s obligations under article 11.2 of the Framework Decision.

The Court attaches relatively little significance to the comparison drawn between article 5.2 of the Framework Decision and article 11.2 of the Framework Decision. While it is true that article 5.2 refers to “law and practice” and that article 11.2 refers only to “law”, the provisions in question are in different chapters of the Framework Decision and are concerned with wholly different issues.

Finally, the Court accepts that the traveaux preparatoire might indeed have shed some light upon the intended meaning of article 11.2 of the Framework Decision. Since the respondent / plaintiff was the party asserting that it means something other than that imported by the natural and ordinary meaning of the words used in the English language version before the Court, the onus was on him to adduce the necessary evidence relating to the traveaux preparatoire, and to point if he could to where that evidence supported the alternative version that he was contending for. However, no such evidence was adduced.

The Court would also remark that although the Framework Decision is promulgated in a large number of official languages, including Irish, only the versions in the languages used by the draftsmen (which the Court understands to have been English and French) have the potential to be of any assistance. All other language versions, including the Irish version, are merely translations from the draftsmen’s final product. The case of Assange v. Swedish Prosecution [2012] 2 AC 471 certainly illustrates how earlier drafts, and different language drafts, leading to the final instrument were of considerable assistance in resolving the controversy in that case, which concerned whether a prosecutor could be an issuing judicial authority for the purposes of the Framework Decision. In the present case, however, the respondent / plaintiff has produced no evidence whatever concerning the process of drafting, which ultimately yielded up article 11.2 of the Framework Decision. Moreover, to the extent that he referred to different language versions, he did not identify any significant differences in meaning as between those versions.

The Act of 2013 - alleged non-compliance with E.U. law based on failure to respect the principle of equivalence and/or alleged unconstitutionality based on discrimination

The Court has already noted that the requirement to provide legal aid in certain cases, which is contained in Article 47, para. 3 of the Charter (assuming it applies at all in the present case, which is questionable) is based on the need to ensure effective access to justice, and that it is in that context that this provision specifies that legal aid shall be made available to those who lack sufficient resources. The requirement to provide legal aid is qualified by the words “in so far as such aid is necessary to ensure effective access to justice.” Accordingly, the principle of equivalence requires that all persons lacking sufficient resources, who are in the same class, or a similar class, are ensured equal access to justice, if necessary by the provision of some form of legal aid. However, there is no requirement that the same form of legal aid should be available in each situation or that it must be a statutory legal aid. Equivalence is to be measured in terms of whether not there is effective access to justice in each case, not in terms of the mechanism employed to achieve that.

That approach provides the answer to the respondent / plaintiff’s suggestion that under the Act of 2003 there is an unconstitutional, alternatively illegal, discrimination and disparity in terms of the legal assistance available to a person in the respondent’s position compared with that provided to certain persons requiring such assistance in other contexts. It was contended that because there is statutory legal aid in domestic criminal cases, and for certain civil cases, and for cases based on a warrant from the International Criminal Court, and for certain Coroner’s Court matters, and for persons who might be made the subject of an ASBO, there is a disparity in how persons in the same or similar class are treated, and that this constitutes discrimination There might well be a disparity in terms of the mechanism employed to legally assist persons in the categories identified, compared with the mechanism employed to legally assist persons who are wanted on foot of a European arrest warrant, but there is equivalence with respect to the fundamental principle that requires to be respected, namely that all such persons are provided with effective access to justice.

That having been said, counsel for the applicant / defendants has, in the Court’s view, a valid point when he complains that in any case the regimes advanced as comparators are not directly comparable, notwithstanding the existence of superficial similarities in some respects. Even in the case of the alleged closest comparator (other than traditional extradition under Part II of the Extradition Act 1967), i.e., the regime under the International Criminal Court Act 2006, that regime is significantly different to that under the European arrest warrant system, which is based on the Framework Decision. The fact of the matter is that nowhere in the Framework Decision is there a requirement to provide legal aid, whether on a statutory or other basis, a matter that was expressly referred to by O’Donnell J. in Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 IR 384 when he stated, at para. 11:

“The Framework Decision … imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise.”

Conversely, a requirement to provide legal aid is created by articles 55 and 67 of the Rome Statute of the International Criminal Court.

In so far as traditional extradition under Part II of the Extradition Act 1967 is concerned, it represents a significantly different legal regime when compared to rendition on foot of the Framework Decision as transposed by the Act of 2003. These significant differences were pointed out by McKechnie J. in O’Sullivan v Irish Prison Service [2010] 4 I.R.562, and this Court does not agree with a submission made by counsel for the respondent / plaintiff that for the purposes of the present exercise, i.e., examining whether there is equivalence of treatment in terms of the availability of legal assistance for persons in the same, or a similar class, they are not significant.

The Act of 2003 enjoys the presumption of constitutionality, and the respondent / plaintiff bears the burden of rebutting that which is presumed. In this Court’s view there is simply no evidence before it that the Act of 2003 is constitutionally deficient in any respect, or that it permits of any unconstitutional discrimination; or for that matter that the Act of 2003 fails to respect E.U. law and in particular the principle of equivalence. Accordingly, the presumption of constitutionality has not been rebutted with respect to the Act of 2003, and the Court has no reason to believe that the Act of 2003 is constitutionally deficient in any respect, or that it breaches the principle of equality before law as guaranteed in Article 40.1 of the Constitution.

In addition, and having regard to this Court’s view, and that of the Supreme Court, concerning the proper interpretation of article 11.2 of the Framework Decision, there is no reason to believe that the Act of 2003 has been ineffectively transposed into Irish law.

The s.10 Objection to surrender in the EAW proceedings

This objection was premised upon article 11.2 of the Framework Decision bearing the interpretation that the respondent contends for, namely that it places an obligation on a member state to provide a system of legal assistance established by law for the benefit of persons arrested on foot of a European arrest warrant who are impecunious and unable to pay for such assistance from within their own resources; in effect a statutory scheme of legal aid. Moreover, it was further premised on this Court being neither bound to, nor disposed to, follow the interpretation of article 11.2 contained in the judgment of the Supreme Court in Minister for Justice, Equality and Law Reform v Olsson [2011] 1 IR 384.

As the Court does not accept the interpretation that the respondent / defendant contended for, and is disposed to follow the interpretation offered by O’Donnell J. in Olsson, the respondent’s s.10 objection cannot be upheld.

Although the point is academic in the light of what has just been stated, it should be recorded that the applicant /defendants do not accept the respondent / plaintiff’s contention that the version of s.10 of the Act of 2003 that falls for consideration is the version that predates the amendment effected by the Act of 2012. They reject it on the following basis.

S.26(2)(c) of the Interpretation Act 2005 provides:

"proceedings taken under the former enactment may, subject to section 27(1), be continued under and in conformity with the new enactment in so far as that may be done consistently with the new enactment."

It was asserted in the written submissions filed on behalf of Mr. O'Connor that this repeal does not affect the legal position here, and an incomplete reference was made to Section 27(1 )(e) of the Interpretation Act 2005 by a partial quote of the section as follows:

"... repeal does not… prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal "

The full text of Section 27(1 )(e) provides:

"Where an enactment is repealed, the repeal does not-

…

(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention. "

It was submitted that there is, in fact, no right, privilege, obligation or liability required, accrued or incurred under the enactment repealed, which is either affected by or not provided for under the European Arrest Warrant Act of 2003, as amended, and, in particular, the amended section 10. The respondent / plaintiff has the same right to representation and has exercised the same right to representation before and after the amendment of the Act and no right, privilege, obligation or liability under the earlier provision has been changed and if his surrender is ordered, it will be subject to and in accordance with the provisions of the Act.

In circumstances where the Court has indicated that it is not disposed to uphold the s.10 objection, even in the event of it being concerned with the version that predates the amendment effected by the Act of 2012, it is unnecessary for the Court to resolve this particular controversy.

Conclusions
In the European arrest warrant proceedings, the Court is not obliged to refuse to surrender the respondent on the basis argued before it, or to regard his surrender as being prohibited under Part 3 of the Act of 2003 or on any other basis. The Court should therefore proceed to make an order for the plaintiff / respondent’s surrender.

In the proceedings commenced by plenary summons, the plaintiff’s claim should be dismissed simpliciter, but without prejudice to any application that either side might wish to make in respect of costs. In the event of any such application being made, the Court will cause the case to be listed again for the purpose of hearing submissions from both sides and rendering a determination of that issue.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice and Equality -v- O'Connor [2014] IEHC 640 (04 December 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H640.html Cite as: [2014] IEHC 640

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