Supreme Court: Man convicted of fraud loses constitutional challenge to European Arrest Warrant

About this case:

• Judgment:
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Delivering the judgment of the seven-judge Supreme Court, Mr Justice Donal O’Donnell rejected the argument that the absence of a “statutory legal aid scheme” for European Arrest Warrant cases was a breach of the constitutional right to equality before the law – finding that there was no basis for any suggestion that a statutory scheme would markedly superior services than the administrative and non-statutory scheme in place.

Background

Mr Thomas O’Connor, was convicted in the United Kingdom of tax fraud and his surrender was sought by the UK authorities to serve the sentence imposed upon him, and also for prosecution on a charge of absconding and breach of bail conditions.

Mr O’Connor grounded an objection to his European Arrest Warrant on the absence of a “statutory legal aid scheme” – based on the point that the State provided for the availability of legal assistance for European Arrest Warrant cases through the Legal Aid Custody Issue Scheme – i.e. an administrative and non-statutory scheme.

It was argued that the existence of a non-statutory scheme of legal assistance was a breach of Mr. O’Connor’s Article 40.1 guarantee of equality before the law in that a person charged with substantive offences (e.g. fraud) in the Irish courts, would be entitled to apply for, and obtain legal aid pursuant to statute namely the Criminal Legal Aid Act 1962.

Further, in the case of a person sought for trial in the International Criminal Court, s.23(5) and (6) of the International Criminal Court Act 2006 provide for the grant of legal aid under the Criminal Justice (Legal Aid) Act 1962 in cases where a person is sought under a warrant of the International Criminal Court.

Mr O’Connor claimed three features of the scheme treated an applicant unequally when compared either to the person accused of a criminal offence in the Irish courts, or a person whose surrender was sought under the International Criminal Court Act 2006:

High Court

In 2014, the High Court dismissed the challenge – Justice Edwards considered that he was bound by the Supreme Court decision in Minister for Justice, Equality and Law Reform v. Olsson 1 I.R. 384, to the effect that Article 11.2 of the Framework Decision (on the European Arrest Warrant) provided for a right of legal assistance in accordance with national law, and did not itself require the grant of legal aid.

While identifying a number of respects in which legal aid under the Legal Aid Custody Issue Scheme could be said to differ from the legal aid available under the Criminal Justice (Legal Aid) Act 1962, Justice Edwards concluded there was no breach of Article 40.1 of the Constitution.

Justice Edwards did of course certify a ground of appeal in the EAW proceedings as follows:

“Is it correct that Article 11.2 of the Framework Decision (on the European Arrest Warrant) in conjunction with Article 47 of the EU Charter and the general principles of EU law imposes no obligation to provide legal aid, whether as of right or otherwise for indigent respondents in EAW cases that do not have the skill to represent themselves?”

Supreme Court

According to Justice O’Donnell, the underlying rights in issue in this case was whether there was any breach of fair procedures in this case because the legal representation was “made available under an administrative scheme of some antiquity with some particular procedures?”

Asserting that there was plainly no breach, it was then difficult “to see how there could be a breach of the entitlement to equality before the law unless another person in a directly similar situation was provided with markedly superior services, and particularly if the basis of the distinction was questionable”.

In all the circumstances, the Court held that “once legal representation is made available at the cost of the State, it is not a breach of the Constitution that such legal representation is made available through a different route in other cases”.

Furthermore, the observations made in Minister for Justice, Equality and Law Reform v. Olsson 1 I.R. 384 that Article 11.2 of the Framework Decision did not require legal aid, but merely legal representation provided in accordance with national law, were correct.