The Court of Appeal declared that the failure to provide people facing surrender under the European Arrest Warrant Act 2003 with the same legal aid rights by law as people facing trial on corresponding charges in Ireland breached the constitutional guarantee of equality before the law.
In a judgment delivered on 23 October 2015, Mr Justice Gerard Hogan said the legal aid available to people facing European arrest warrant proceedings operated through an administrative scheme rather than legislation. The court found that this left them with less certain entitlements than people covered by statutory legal aid schemes.
The case concerned Thomas O’Connor, who was subject to a United Kingdom warrant seeking his surrender to serve concurrent sentences imposed for tax fraud and to face a separate charge relating to his bail. The Court of Appeal recorded that the warrant had been endorsed for execution in Ireland and executed in 2012. O’Connor had been legally represented at his initial High Court hearing.
O’Connor argued that the absence of a statutory legal aid scheme breached Article 40.1 of the Constitution and EU law. The court rejected his argument that Article 11(2) of the EU Framework Decision itself guaranteed publicly funded legal aid. Mr Justice Hogan said the Court of Appeal was bound by the Supreme Court’s decision in Olsson, which interpreted that provision as guaranteeing legal representation, not legal aid.
The court nevertheless upheld the constitutional argument. It compared the administrative scheme for European arrest warrant cases with statutory legal aid entitlements for people facing criminal trial in Ireland and people facing surrender under the International Criminal Court Act 2006. The scheme had no formal financial eligibility thresholds, and a court recommendation for aid was made at the end of proceedings. Although evidence before the court was that recommendations in European arrest warrant cases were routinely honoured, Mr Justice Hogan said reliance on administrative arrangements and assurances was different from an enforceable statutory entitlement.
The declaration was limited. The court did not declare the European Arrest Warrant Act unconstitutional and refused to restrain O’Connor’s surrender while legislation was pending. Mr Justice Hogan said such an order would disproportionately affect the operation of the warrant system. The ruling addressed the legislative gap by declaring that it breached Article 40.1; it did not itself provide a statutory scheme.