The High Court dismissed Thomas O’Connor’s challenge to the absence of statutory legal aid in European arrest warrant proceedings and ordered his surrender to the United Kingdom under a warrant issued there in 2011.
In a judgment delivered on 4 December 2014, Mr Justice Edwards ruled on two related cases heard together: the surrender proceedings and O’Connor’s plenary action against the Minister for Justice and Equality, Ireland and the Attorney General. The plenary action argued that the lack of statutory legal aid breached EU law and the constitutional guarantee of equality before the law.
O’Connor’s counsel argued that EU rules required legal assistance at state expense for people unable to pay, and that an administrative scheme could not provide that entitlement as of right. The State relied on the non-statutory Legal Aid (Custody Issues) Scheme, under which a court could recommend that representation costs be paid. A Legal Aid Board witness said the scheme was administered by the Board and that, to his knowledge, the State followed favourable court recommendations.
The judge accepted that the scheme was non-statutory and administrative in origin. He concluded, however, that the EU rule did not require legal aid to be provided through legislation. In his view, the relevant question was whether a person without sufficient means had effective access to justice. The possibility of seeking a recommendation under the scheme, alongside the statutory right to representation, met that requirement.
The court also rejected the constitutional and EU equality arguments. It found that the examples of statutory aid cited by O’Connor, including aid in International Criminal Court proceedings, were not directly comparable in the relevant respects. The judge held that the evidence did not rebut the presumption that the European Arrest Warrant Act was constitutional or show that it failed to respect EU law.
In the surrender case, the judge found the warrant’s other requirements satisfied, including the identity of the person brought before the court and the applicable offence thresholds. He rejected the remaining objection, which depended on the claim that EU law required a statutory legal aid scheme. The judgment said no other ground of objection was argued at the hearing; the court expressed no view on whether O’Connor might later seek to raise another ground.
The court ordered that O’Connor be surrendered under the warrant. It dismissed the plenary action, while leaving either side free to apply for a further hearing on costs. The judgment made no costs determination.