MJ&E v O’Connor: No breach of Art 40.1 that leagl aid in European Arrest Warrant cases is not provided for by statute

Here, the Supreme Court (O’Donnell J writing) rejected O’Connor’s argument that the State’s failure to provide legal aid on a statutory basis to the subjects of European arrest warrant applications would breach his rights under Article 40.1 of the Constitution.



In December 2006, Blackfriars Crown Court convicted O’Connor on two counts of tax fraud. The court released O’Connor on bail pending sentencing. When he did not attend court on the sentencing date in January 2007, the court sentenced him, in his absence, to two concurrent sentences of four years and six months.

In June 2011 the UK issued a European arrest warrant seeking O’Connor’s surrender from this jurisdiction. The High Court endorsed that warrant. Gardai arrested O’Connor and brought him before the High Court.

At trial, O’Connor objected to his surrender on grounds that the provision of legal aid to EAW subjects breached Article 40.1’s guarantee of equality before the law. He argued that he would qualify for legal aid under the statutory legal aid scheme, but that scheme was not applicable in EAW cases. (The State does provide legal aid for EAW cases under the Attorney General’s Scheme, but O’Connor did not apply for aid under that scheme.) He argued that as the AG scheme is an administrative scheme which allowed the AG to refuse to honor the court’s recommendation, the scheme discriminated between persons subject to a warrant for surrender to the International Criminal Court (who would qualify under the statutory scheme) and persons subject to an EAW.

The Legal Aid Board gave evidence that it would consider itself bound by a recommendation by the High Court that legal aid be provided. The High Court (Edwards J here) rejected O’Connor’s argument but certified a question for the Court of Appeal:

Is it correct that Article 11.2 of the Framework Decision (on the European Arrest Warrant) in conjunction with Article 47 of the EU Charter and the general principles of EU law imposes no obligation to provide legal aid, whether as of right or otherwise for indigent respondents in EAW cases that do not have the skill to represent themselves?


Here, in a two/one split decision, the Court of Appeal dismissed O’Connor’s appeal. Ryan P and Irving J upheld both the High Court’s decision; Hogan J dissented in part. Hogan J stated 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”.


O’Connor applied to the Supreme Court for leave to appeal. In its determination (here), 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.


Supreme Court

O’Donnell J outlined that the Constitution requires a broader provision of legal aid than is provided by statute, Carmody v MJELR [2010] 1 IR 635, [16]. However, rejecting the constitutional challenge, he stated that “Article 40.1 requires equality, not identity, of treatment” [20]. Once equal standards of legal assistance is provided it does not breach Article 40.1 that it may be provided by different means in different circumstances.

Dismissing this appeal, O’Donnell J stated that “there may be merit in placing the entire area [provision of legal aid] on a comprehensive statutory footing” [25]. However, “[i]t has not been established that any issue of European law arises in the fine distinctions that exist between the provision of legal aid under the 2013 regulations and the 1962 Act [24].

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  1. New Appeal: Does Brexit prohibit surrender of an EU citizen to the UK under an EU arrest warrant? | SCOIRLBLOG

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