A High Court judge has recused himself from hearing an application for a certificate to appeal a surrender order, saying one remark during the earlier hearing could have created a perception of bias.
In a judgment delivered on 27 July 2011, Mr Justice Edwards said he had reviewed audio recordings after the respondent’s solicitor sought his recusal. He concluded that recusal was appropriate because of a possible perception of bias arising from one discrete aspect of the case, while emphatically rejecting that he had been biased.
The underlying proceedings concerned the Minister for Justice and Law Reform’s application to surrender Cyril Mc Guinness to Belgium under a European Arrest Warrant. The High Court granted that application and made the order sought on 15 July 2011.
The respondent then sought a certificate under section 16(12) of the European Arrest Warrant Act 2003. Such a certificate is required for an appeal to the Supreme Court on a point of law of exceptional public importance, where an appeal is also desirable in the public interest.
The respondent’s solicitor, Ms Dolan, alleged in an affidavit that the judge’s comments and questions during the surrender hearing gave the impression of an ulterior motive, disapproval of the defence approach and possible bias in favour of the State. The judge said he listened to recordings from parts of the hearings on 12 and 24 May and obtained written transcripts.
Mr Justice Edwards explained that the court had been concerned that the respondent’s lawyers were proceeding on a limited retainer and intended to argue only a point about the legal aid and Attorney General’s scheme. The judge said he wanted to be satisfied that, with the respondent’s liberty at stake, this was an informed choice. He also described as inappropriate a suggested strategy of raising other issues later through Article 40.4.2 of the Constitution.
The judge accepted that describing the legal aid point as being raised in pursuit of an “agenda” was unfortunate and may have wrongly suggested that he considered it inappropriate or unmeritorious, or had prejudged it. He said the intended point was that the lawyers should represent their client’s best interests, and concluded that he should not have used that description.
The judgment records the recusal decision. It does not determine the pending application for a section 16(12) certificate or change the earlier surrender order.