Court of Appeal dismisses appeal against European Arrest Warrant, upholding constitutionality of 2003 Act.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 227

[2015/48]

The President

Irvine J.

Hogan J.

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT/RESPONDENT

AND

BETWEEN

THOMAS O’CONNOR

RESPONDENT/APPELLANT

THOMAS O’CONNOR

PLAINTIFF/APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND

THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

JUDGMENT of the Court delivered by the President on 23rd October 2015

Introduction

1. The European arrest warrant is a function of an EU Framework Decision that was intended to streamline extradition among Member

States by replacing inter-State requests with enforcement of court orders from one country to another. The scheme is founded on

trust in the systems of justice in the participating States. Cumbersome rules of procedure were replaced by a standard unified

process that applied across the European Union. Strict time limits were laid down so that the process of transmitting a wanted person

from where he was arrested to the requesting State court would operate smoothly and efficiently. Some of the old rules were

dispensed with because they were thought to be unnecessary in the new community of trust in common precepts of substantive and

procedural justice. The system was implemented in this country by the European Arrest Warrant Act 2003.

2. In the case of Mr. Thomas O'Connor, the reality has not matched the expectation. The warrant was issued on 13th June 2011 and

seeks his surrender to serve sentences for tax fraud that were imposed in 2007, and to face the charge of absconding and breaching

his bail conditions. The first application failed and this case is concerned with a second warrant.

3. The High Court ordered Mr. O'Connor's rendition, but gave him leave to appeal and thus the matter comes to this Court. There are,

in fact, two proceedings and two appeals, but essentially, the same issue arises in them. One appeal is the extradition request and

the other is a separate action by Mr. O'Connor seeking to have the legislation declared invalid having regard to the Constitution.

4. Mr. O’Connor’s resistance to the request for an order that he be surrendered pursuant to the 2003 Act was based on the argument

that the Attorney General’s Scheme – now called the Legal Aid (Custody Issues) Scheme – which is available to provide for payment

of legal representation in EAW cases, is not compliant with the Framework Decision underpinning the European Arrest Warrant

Scheme. As it applied at the relevant time, s. 10 of the European Arrest Warrant Act 2003 provided that the wanted person should,

subject to and in accordance with the provisions of the Act and the Framework Decision, be arrested and surrendered to the issuing

State. The section was amended to remove the reference to the Framework Decision but as it applied at the time, the section had

the reference to the Decision. It is Mr. O’Connor’s contention in this case that the payment scheme provided for legal assistance

under the Custody Issues Scheme is in conflict with the Framework Decision because it is provided on an administrative and

discretionary basis and not by way of a formal binding and statutory right to free legal assistance provided in accordance with law.

5. The application for the enforcement of the warrant was heard by the High Court together with plenary proceedings by Mr. O’Connor

based on the same factual circumstance. He claimed that the absence of a statutory scheme of legal aid, by contrast with provisions

for qualified persons in criminal cases and for civil legal aid, constituted a breach of his constitutional rights, specifically, equality

before the law under Article 40.1.

6. The High Court rejected Mr. O’Connor’s challenge to the European Arrest Warrant proceedings and dismissed his plenary

proceedings. The Court held that it should therefore proceed to make an order for the surrender of Mr. O’Connor. The Court

subsequently refused an application for a reference to the Court of Justice of the European Union under Article 267 TFEU because it

held that such a procedure was not available when the Court had already made its decision in a case, even if it had not actually

delivered its judgment setting out the reasons, which was the situation in this case. The Court did, however, certify a point of law of

exceptional public importance which it was desirable in the public interest to be the subject of appeal, applying s. 60(11) of the

European Arrest Warrant Act 2003. The certified question was:

Is it correct that Article 11.2 of the Framework Decision (on the European Arrest Warrant) in conjunction with Article 47

of the EU Charter and the general principles of EU law imposes no obligation to provide legal aid, whether as of right or

otherwise for indigent respondents in EAW cases who do not have the skill to represent themselves?

7. Mr. O’Connor’s challenge to the adequacy of the Custody Issues scheme arises in the context of what is required by the European

Arrest Warrant Act 2003 and Council Framework Decision 2002/584/J.H.A.A. of 13th June 2002 on the European Arrest Warrant and

the surrender procedures between Member States: O.J. L.190/1 18.7.2002. The relevant provision is in Article 11 which is as follows:

“1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with national

law, inform that person of the European Arrest Warrant and of its contents, and also of the possibility of consenting to

surrender to the issue in judicial authority.

2. A requested person who was arrested for the purpose of execution of a European Arrest Warrant should have the right

to be assisted by a legal Counsel and by an interpreter in accordance with the national law of the executing Member

State.”

8. In his judgment in the High Court, Edwards J. cited the case Minister for Justice, Equality and Law Reform v. Olsson [2011] 1. I.R.

384 in which the Supreme Court analysed the meaning and effect of Article 11.2 of the Framework Decision. The judge considered an

argument that the Supreme Court authority was not binding, in that the interpretation of Article 11.2 was not part of the ratio

decidendi of the case and was, rather, obiter dictum which was a contention advanced by Counsel for Mr. O’Connor in the High Court

and which was repeated in this Court. Edwards J. considered that such debate was arid because even if he was to consider the case

not to be binding, the views of O’Donnell J. speaking for the Supreme Court coincided with the analysis of the Article that he himself

had made.

9. Mr. Forde S.C. for Mr. O'Connor does not dispute the applicability of the judgment in Olsson to the issue now arising but argues

that the reasoning is not binding on this Court because it was obiter and we are free to decide not to follow that precedent. If the

decision is a binding precedent, Counsel candidly acknowledges that that is the end of Mr. O’Connor’s appeal in this Court. In that

event, he must go elsewhere in search of a ruling that will save him from rendition. Counsel asks this Court to refer the point he raises

to the Court of Justice of the European Union under Article 247 TFEU. Failing that, he proposes to ask the Supreme Court to receive

the case and either allow the appeal or refer the question to Luxembourg. A party in the final national Court is entitled to have a

matter of Union law referred under the Article unless it is acte clair.

10. On one view this Court could confine its consideration of the appeal to the question of the precedential status of the admittedly

relevant Supreme Court judgment in Olsson's case. However, having regard to the submissions filed by both sides that would not be

satisfactory. The Court does of course know the arguments because we have the judgment of the High Court in which all the

submissions are canvassed.

11. We are therefore concerned first with the issue of compliance with the Framework Decision and, secondly, with Mr. O’Connor’s

challenge to the European Arrest Warrant Act, 2003.

Olsson’s Case

12. The headnote in Olsson’s case records the Supreme Court as holding as follows:

“1. That the Framework Decision imposed no obligation on a requesting State to provide legal aid. It merely provided for a

right of representation and then only in accordance with the national law of the executing Member State. This right was

vindicated in the present case.

2. That s. 13(4) of the Act of 2003 did not require the provision of legal assistance as of right. It required that

information be provided to a requested person as to the nature and extent of his right to legal assistance and, if

necessary, for such legal assistance to be provided to him. The Act was complied with once the respondent was informed

of the circumstances in which he was entitled to benefit from the Attorney General’s Scheme and of the limitations on

that Scheme.

3. That there were aspects of the Attorney General’s Scheme which were enforceable, such as the right to make an

application for legal assistance and the right to have one’s application considered.

4. That as applications for legal assistance under the Attorney General’s Scheme in European Arrest Warrant cases were

only ever decided in the requested person’s favour (under the terms of the Scheme itself and on foot of assurances given

to the Court on affidavit), the Attorney General had no residual discretion in such cases and where legal assistance was

so provided it was provided as of right.

5. That despite having been represented throughout the proceedings, the respondent still had locus standi to argue that

legal assistance had not been provided to him as of right as required by the Act of 2003. Further, as he was not merely

seeking declaratory relief but was instead arguing that non-compliance with the Act prevented the Court from

surrendering him, it could not be said that a finding in his favour would confer no substantial benefit.

...

Obiter dictum: criminal legal aid was not a statutory entitlement but a constitutional right, albeit a right subject to

criteria which limited its scope. A trial on a serious charge without such legal assistance would fall short of the

constitutional standards guaranteed by Articles 38.1 and 34.1 of the Constitution.”

13. In his judgment for the Supreme Court, O’Donnell J. said that “the point argued in this appeal is limited to the contention that the

provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is

requested pursuant to a European Arrest Warrant”. He went on to say in the next paragraph that “The respondent’s case in this

appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended”. Interpreting Article 11.2, the judgment

proceeds at para. [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. That right, and more, has unequivocally been vindicated in the present case”.

14. The High Court expressly agreed with the reasoning of O’Donnell J. in the Olsson case, holding that for a person arrested under 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, that is in favour of the applicant under the Scheme . .

.”

15. The Court held that there was no requirement for the Scheme to be a statutory scheme or otherwise established in law. It

rejected the argument that the phrase “in accordance with national law” had to be given the narrow construction that it must be in

legislation. In that connection, the Court rejected the argument that there was analogous authority in England in the case of R. v.

Secretary of State, ex p Fire Brigades Union [1995] 2 A.C. 513. The facts of the case were wholly different and inapplicable to the

present controversy.

16. Edwards J. also rejected the other arguments put forward on Mr. O’Connor’s behalf. In particular, he held that the requirement to

provide legal aid in certain cases which is contained in Article 47 para. 3 of the Charter of Fundamental Rights, even assuming that it

was applicable in the present case, was based on the need to ensure effective access to justice. That did not specify the form in

which the legal aid was provided and the essential requirement was for effective access to justice. That was available in the present

case under the Custody Interest Scheme. That approach was also the basis for the High Court’s rejection of the argument grounding

Mr. O’Connor’s plenary action. Edwards J. went on to hold as follows:

“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 EU 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.”

17. Mr. Forde sought to distinguish Olssen from this case, saying that there were three fundamental differences, namely:

a. Olssen was, he said, invited to apply for the scheme and was told that the recommendation would not be opposed and

there is an affidavit from a Civil Servant saying that the recommendation will be honoured if made. That is one contrast

because it has not happened in the O’Connor case.

b. Mr. Olssen was represented at al stages by solicitor and Counsel.

c. Counsel says that if it was intended to be binding, O’Donnell J. would have conducted a very detailed analysis of the

provision by examining the French version of the Framework Decision and the preparatory materials, the ICC statute. In

the circumstances, therefore, the Court said that this was moot; it was an academic argument.

18. Mr. Forde suggests that there would be little point in having the right expressed as it is unless it was intended that there would

be provision for legal assistance when a requested person could not afford to pay for it himself. He cited the European Convention on

Human Rights Article 6(1)(c) in support. It could not have been intended that the requested person would be deprived of legal

assistance in a matter of potentially great complexity such as extradition.

19. In his submissions, Mr. Shane Murphy S.C. adopts the analysis of Edwards J., in which he held that the proper interpretation of

Article 11.2 was central to the decision in the Olsson case. The High Court considered questionable the suggestion that Article 47

para. 3 of the Charter of Fundamental Rights actually applied to European arrest warrant cases. Even if it did, the Court was satisfied

that the important point was the service provided to the person involved and not the mode of provision thereof. The judge rejected

the submission that the expression “in accordance with national law” demanded provision by legislation and that some other method

such as the non-statutory scheme in question amounted to a contravention of that requirement.

20. In my view, the High Court judge was correct and this submission is valid. The points of difference proposed by Counsel for Mr.

O’Connor do not actually distinguish the cases. Indeed, the evidence as to the operation of the existing scheme was to the same

effect. None of the features affects the principle that is clearly and unequivocally stated by the Supreme Court. The Supreme Court

addressed the precise issue that is in question here. The judgment given by O’Donnell J. represented the unanimous view of the

members of the Court. The judgment identifies the specific question and deals with it in the clearest of terms. In the circumstances,

it is unavoidable that the decision in Olsson is binding on this Court.

21. Incidental confirmation of the conclusions of the Supreme Court and Edwards J. is to be found in recent developments in the

European Union, although it appears that they will not apply in Ireland or the United Kingdom. The EU has been endeavouring to find a

mode of provision of free legal aid in cases of EAW, as well as in criminal proceedings generally. There are wide variations in the

different Member States’ methods of providing legal aid. Some progress has been made since 2009 towards harmonising procedural

safeguards in criminal cases: there are Directives on translation of proceedings, on provision of information and on the right to legal

representation itself. A Directive was proposed in late 2013 and is under discussion with the Parliament which would require provision

of legal aid for persons the subject of European Arrest Warrant proceedings: Council Document 6603/15. Such Community legislation

would not be necessary if the Framework Decision already required free legal aid to be available for wanted persons. It also follows

that there is at present no Community provision as to the means whereby legal aid is to be provided. That has been left to the

national regimes of the Member States.

22. There is Community law recognition of the right of a wanted person to get legal assistance. It is the method of payment for such

services that has not been harmonised to date. The right to representation is reflected in the Framework Decision but that is

substantially short of provision of legal aid for wanted persons in warrant cases.

23. This was the context of the decision of the Supreme Court in Olsson. The Court held in unequivocal terms that the Framework

Decision does not provide a right to have assistance at the State’s expense. Of course, the particular State may provide legal aid and

that may be considered to be a legal or Constitutional right under national law. Olsson does not deny such entitlement; it rejects the

proposition that the Framework Decision provides for or requires legal aid in its terms.

24. The significance is that if EU law does not itself require this service, it follows that Mr. O’Connor cannot invoke Community law

principles whereby to challenge the method of supply of legal aid under our national law.

25. The Custody Issues Scheme of legal aid is therefore not in conflict with EU law generally or the Framework Decision specifically.

These recent developments in the Community legislative process provide incidental confirmation of the Supreme Court’s analysis of

the Framework Decision.

26. Mr. Forde applies to the Court in the event that it is of the view that the Supreme Court decision in Olsson is binding to make a

reference to the Court of Justice of the European Union under Article 267 TFEU. That possibility exists now because the time period in

which such references were not permitted has now expired. That would not, however, be an appropriate course to adopt even if this

Court were minded to take a different view of the issue than that of the Supreme Court. While it is always prudent in these matters

to eschew absolute rules, it would not be proper for this Court to seek to overturn a Supreme Court decision that was binding

otherwise by referring the matter to the Court of Justice in hope of securing a different result. That would be inconsistent with the

Constitutional structural relationship and the comity of the courts and is not something that this Court would be prepared to consider

otherwise than in wholly exceptional circumstances. Nothing of that kind arises here.

Mr. O’Connor’s Plenary Proceedings

27. The High Court rejected the submission by the Minister and the other defendants that Mr. O’Connor did not have standing to make

his challenge in this case. There is a cross-appeal against that ruling. In my judgment, the claim in this action cannot succeed for

other reasons which make it unnecessary to embark on this question. The point will be clearer when I have discussed this part of the

appeal.

28. The claim in Mr. O’Connor’s statement of claim is that he would be eligible because of his limited means to obtain legal aid under

either the statutory criminal provision or the civil scheme. That is his right. Article 11(2) of the Framework Decision requires that there

be a statutory scheme for subjects of EAW applications. The 2003 Act does not provide for legal aid and is therefore invalid, having

regard to the provisions of the Constitution. That is for two reasons as claimed: first, because it is in conflict with the State’s

obligations under Community law, which is discussed above. Secondly, it contravenes the guarantee of equality in Article 40.1 of the

Constitution. Since legal aid is available on such formal basis for persons encountering legal process in comparable circumstances or in

matters of lesser consequence for the individual, the absence of similar facility in statutory form in extradition represents an unlawful

distinction that is contrary to the right to equality. The statement of claim instances by comparison and contrast a minor criminal

offence and a matter coming under the International Criminal Court Act 2006, to demonstrate affairs at different ends of the spectrum

which carry with them statutory legal aid entitlement. It may immediately be noted that the Rome Statute and the enacting

legislation specify the availability of legal aid.

29. Mr. O’Connor’s claim, as stated, does not make it apparent how it could render the 2003 EAW Act invalid, which is the relief it

seeks. That Act does not inhibit access to legal assistance. It does not provide that an individual is limited to access to a

discretionary scheme. The argument by Mr. O’Connor’s Counsel seeks the invalidation of the Act because of what it does not contain.

The claim refers to the whole Act, despite declaring that the Act is, in the specified circumstances of alleged discrimination,

“unconstitutional . . . to that extent”. This must mean at least that all of the provisions relating to rendition of the subject of the

warrant are to be condemned as invalid. There is no halfway house in this area. If the legislation is infirm because of non-compliance

with the Constitution, then it must be declared invalid.

30. Under s. 13 (4) of the Act, “A person arrested under a European arrest warrant shall, upon his arrest, be informed of his right to

(b) obtain, or be provided with, professional legal advice . . .” Section 29.—(1) is as follows:-

“A person shall not be surrendered under this Act if —

(a) his or her surrender would be incompatible with the State's obligations under the Convention for the Protection

of Human Rights and Fundamental Freedoms done at 20 Rome on the 4th day of November, 1950, as amended by

Protocol No. 11 done at Strasbourg on the 11th day of May, 1994,

(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the

reason 25 that the offence specified in the European arrest warrant is an offence to which section 30(1)(b)

applies).”

31. The Act itself protects a person who is the subject of a warrant from being surrendered if their human rights are infringed. It must

obviously also be the case that a person could not be extradited on foot of a European arrest warrant because the legislation

providing for the implementation of the system was itself to be declared unconstitutional.

32. It seems to me that there is a failure of constitutional logic in Mr. O’Connor’s case for invalidity. He is asserting a constitutional

right to a scheme of legal aid for him and persons in his situation to be available as of right on a statutory basis. The only relevance

of the 2003 Act is that it is the vehicle by which the EAW decision was implemented in the State. There is nothing in its provisions to

which Mr. O’Connor actually objects. He is claiming a right that is separate and distinct from the provisions of the Act. The Act has

nothing to say to his objection.

33. In my judgment, this claim cannot succeed as an independent case seeking to invalidate the Act for what it does not contain. It

is impossible to know how much of the Act would be condemned or whether the entire legislation would fall, assuming Mr. O’Connor’s

claim were to succeed.

34. The claim here may be contrasted with the issue that arose concerning s. 2 of the Criminal Justice (Legal Aid) Act 1962 in

Carmody v Minister for Justice [2010] 1 ILRM 157. The section empowered the District Court to certify for representation by a

solicitor in the case of indigent persons charged with offences when justice so required. It permitted provision for Counsel only in

murder cases, and so, by necessary implication, excluded any right to Counsel in other cases. The Supreme Court held that the

absence of a right to apply for legal aid, including Counsel in appropriate cases, represented a failure by the State, but the limited

provision in s. 2(1) did not mean it was repugnant to the Constitution. In the circumstances of the failure by the State as found, the

Court granted a declaration that the plaintiff had a constitutional right to apply for appropriate legal aid prior to his trial.

35. It is not in issue in this case that legal assistance at public expense is available to Mr. O’Connor if he cannot afford to pay for it

himself. Neither is there any question as to the quality of the representation that is available to a requested person under the

Custody Issues Scheme.

36. It seems to me that even if this Court took the view that there was some substance in the issue raised by Mr O’Connor, it would

still not be appropriate or procedurally legitimate In my view, there is no basis on to consider making a Carmody-type declaration. It is

not sought in the statement of claim or in the submissions, and neither is it discussed in the judgment of the High Court, nor is it

mentioned in the notices of appeal.

37. Could Mr. O’Connor have sued the State, claiming the right to a statutory scheme, but without seeking to invalidate the

provisions of the 2003 Act? The Court does not have to express a view on this because it was not claimed or argued. The claim if

made, might have been met by a defence that the State was satisfied to provide for appropriate legal aid as certified or

recommended by a Court. It seems to me that the issue of standing would more directly and immediately and relevantly arise in that

context. The present litigation consists of the process of the enforcement of the warrant in addition to Mr. O’Connor’s own claim.

Whatever the merits of the case, it is impossible to propose that he lacks standing to contest the compliance of the Irish

arrangements with the Framework Decision. In my view, his plenary action although misconceived for the reasons I have explained, is

inextricably entwined with his resistance to the enforcement of the warrant. I prefer, therefore, not to rule on the question of

standing as a separate issue in the appeal and to leave the question to another occasion.

38. In conclusion, I adopt the summary of Edwards J. as follows:

“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 EU 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.”