New Appeal: should legal aid for European Arrest Warrant cases be provided on a statutory basis?

judge-hogan-ecstasy-drugs-legal-390x285In this determination (Minister for Justice v O’Connor) the Court granted O’Connor leave to appeal a Court of Appeal decision that it does not breach the constitutional guarantee to equal treatment before the law (Article 40.1) that the State provides legal aid on a statutory basis for a defendant fighting surrender to the International Criminal Court, whereas legal aid for a European Arrest Warrant case is provided under an administrative scheme.

The Court will also allow argument on whether it is necessary to make a preliminary reference to European Court of Justice on whether EU law requires that legal aid be provided in EAW cases as a statutory right.


The High Court granted the Minister an order allowing for O’Connor’s surrender under an EAW request, and it rejected his proceedings for a declaration that the provision of legal aid in EAW cases on an administrative basis (the Attorney General’s office has discretion to refuse costs) breached the guarantee of equality before the law.

In the Court of Appeal (here), Ryan P and Irving J upheld both the High Court’s decisions; Hogan J dissented in part. He was of the opinion that the distinction made by the State between the provision of legal aid on an administrative basis for EAW cases, and the provision of legal aid on a statutory basis under the International Criminal Court Act 2006, breached the right to equality before the law as guaranteed by Article 40.1 of the Constitution. He also stated “the failure on the part of the Oireachtas to ensure that persons facing surrender requests under the 2003 Act had the same rights by law to legal aid as they would if facing trial on indictment in this state for corresponding offences amounts to a breach of Art. 40.1

The Supreme Court determined that, given the reasoned dissenting judgment by Hogan J, there are arguments both ways on the equality issue; and if the equality argument was successful it would apply to all others facing a surrender application. Therefore the issues met the constitutional threshold for an appeal to the Supreme Court.

The Court certified two questions for appeal:

(a) Whether, in the plenary proceedings, the determination as to unconstitutional inequality suggested in the dissenting judgment of Hogan J. represents the law and, if so, whether any such inequality established would render an order of surrender in the EAW proceedings inconsistent with the Constitution; and

(b) Whether, in the EAW proceedings, it is necessary or appropriate to refer a question of European law to the Court of Justice concerning the fact that legal representation for the purposes of defending an application for surrender under the 2003 Act is provided by means of an administrative scheme rather than (as in, for example, the relevant provisions in respect of the International Criminal Court) a statutory scheme.

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