Justice Peter Charleton dissented in two linked Supreme Court appeals over costs awarded after extradition applications involving Gerry McGinley and Noel McPhillips. He said the European Arrest Warrant Act 2003 did not specifically exclude an appeal to the Supreme Court on costs.
The Minister for Justice, Equality and Law Reform was the applicant and appellant in both cases. The judgment extract says the requested persons had initially applied for the Attorney General’s legal aid scheme, then announced near the end of the proceedings that they would no longer rely on it and sought costs in the ordinary way after succeeding in not being extradited.
The circumstances differed: one extradition application was withdrawn by the requesting country, while the other resulted in a decision against extradition. The extract does not identify which circumstance applied to which respondent.
Charleton’s dissent focused on the Supreme Court’s jurisdiction. At the time of the High Court decisions on costs, the Court of Appeal had not yet been established. Charleton considered the constitutional right of appeal from High Court decisions and the limits imposed by section 16(11) of the 2003 Act.
He read that section as restricting appeals without a certificate only in relation to specified High Court orders for or against surrender to a requesting state. In his view, the provision did not expressly cover a separate decision on costs. Because costs are discretionary and may be dealt with separately from the main order, he concluded that the general constitutional right of appeal had not been displaced.
Charleton acknowledged that allowing appeals about costs while barring appeals on the underlying extradition decision could appear incongruous. He also discussed the potential effect on State-funded legal aid if applicants could seek that support initially and later pursue costs. But he said any exclusion of appeals on all decisions under the Act could have been expressed clearly in the legislation.
The extract identifies Murray J’s judgment as the majority judgment and describes Charleton’s reasoning as a dissent. It does not include the majority’s full reasoning or state the Supreme Court’s formal disposition of the appeals.