The Supreme Court has dismissed Thomas O’Connor’s appeal over legal aid for people facing surrender under a European Arrest Warrant, rejecting his constitutional equality challenge and declining to refer a European law question to the Court of Justice of the European Union.
O’Connor was convicted in the United Kingdom of tax fraud. UK authorities seek his surrender to serve that sentence and for prosecution on a charge of absconding and breaching bail conditions. His objection to the warrant was that legal assistance for people facing surrender was provided through an administrative scheme rather than a statutory legal aid scheme. He also brought separate plenary proceedings challenging the European Arrest Warrant Act 2003 on constitutional grounds.
The High Court dismissed both challenges. The Court of Appeal upheld that decision, with a majority rejecting the equality claim and one judge dissenting on that issue. The Supreme Court considered whether the scheme’s administrative basis and procedures treated people facing European arrest warrants unequally compared with people eligible for statutory legal aid, including those sought under the International Criminal Court Act.
Delivering judgment on 30 March 2017, Justice O’Donnell said the scheme’s legal representation was available as of right and enforceable in law, rather than at the State’s discretion. He found a high degree of similarity between the representation under the scheme and that provided under the Criminal Justice (Legal Aid) Act 1962. The differences examined in the case did not establish a breach of Article 40.1 of the Constitution, which guarantees equality before the law.
The court also said the certified European law question did not need to be decided in this case. Legal aid was available to people facing surrender, and the State had neither withdrawn it nor threatened to do so. The court therefore found no European law issue requiring a reference to the CJEU.
The judgment explained that if the court had found a constitutional breach in the process for deciding the warrant, it could not have ordered surrender under section 37 of the 2003 Act. But it made no such finding. The appeal was dismissed. The court added that there may be merit in putting the overall provision of legal aid on a comprehensive statutory footing, but said this had no effect on the outcome.