The Court of Appeal has dismissed Thomas O’Connor’s appeal over legal aid for people facing surrender under a European arrest warrant, declining to declare that the arrangements breached his constitutional equality rights.
In a judgment delivered on 23 October 2015, Ms Justice Irvine said legal assistance was available to O’Connor from the start of the proceedings through the Attorney General’s Scheme, later renamed the Legal Aid (Custody Issues) Scheme. He had not sought to use it.
O’Connor argued that people facing surrender under the European Arrest Warrant Act 2003 were treated unequally because their legal aid came through a non-statutory scheme. He compared their position with people facing surrender under the International Criminal Court Act 2006, which provides for statutory legal aid, and with people facing criminal trials in Ireland.
The court held that whether Article 11.2 of the EU Framework Decision required the requested state to provide legal aid had already been decided by the Supreme Court in Minister for Justice v Olsson. It said it would be inappropriate to refer the issue to the Court of Justice of the European Union in a way that would circumvent that binding decision.
On the equality claim, Irvine J accepted that people facing surrender under the 2003 and 2006 Acts were in an equivalent class for the constitutional argument. But she disagreed with Hogan J’s conclusion that the difference in legal aid arrangements breached Article 40.1. The relevant question, she said, was whether the scheme delivered legal representation less effectively, not whether it was statutory.
Evidence in the High Court described the scheme as applying to all people arrested under the 2003 Act, with no eligibility thresholds. A judge would assess whether a person had sufficient means and could recommend payment for their lawyers at the end of the proceedings. The evidence was that recommendations were routinely honoured, although payment was not certain until that point.
Irvine J said there was no evidence that people in O’Connor’s position had difficulty obtaining representation, that lawyers available through the scheme were less capable, or that lawyers had refused instructions over concerns about payment. She also noted that the surrender proceedings were not equivalent to a criminal trial, where liberty was at stake in a different way.
O’Connor had sought a declaration that the 2003 Act was unconstitutional to the extent that it allowed surrender, as well as further relief. Irvine J said that broad remedy would have been refused even if his equality argument had succeeded, but agreed the court could consider a narrower declaration. She ultimately declined declaratory relief and dismissed the appeal.