THE SUPREME COURT
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)
THE MINISTER FOR JUSTICE AND EQUALITY
THOMAS JOSEPH O’CONNOR
RESPONDENT / APPLICANT
THE MINISTER FOR JUSTICE AND EQUALITY
IRELAND AND THE ATTORNEY GENERAL
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court grants leave to the Respondent / Applicant to appeal to this Court from the Court of Appeal
This determination relates to an application by Mr. O’Connor (who is the plaintiff/appellant in one set of proceedings and the respondent/appellant in a second set of proceedings) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Ryan P., Irvine J. and Hogan J.) delivered on the 23rd October, 2015. The order appealed against was made on the 23rd October, 2015 and perfected on the 3rd November, 2015. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.
2. The Proceedings
The application relates to two separate proceedings. Both were heard together before the High Court and also the Court of Appeal. The first set of proceedings involves an application by the Minister for Justice and Equality for an order under s.16 of the European Arrest Warrant Act, 2003 as amended (“the 2003 Act”). In the second set of proceedings Mr. O’Connor challenged the constitutionality of the 2003 Act. Insofar as relevant to the issues on which an appeal is now sought to be brought to this Court, the core of the case which was made by Mr. O’Connor both as a defence to the Minister’s proceedings under the 2003 Act and as the basis for his assertions concerning the constitutionality of that act is a contention concerning what is said to be an inadequacy of the legal basis of the scheme of legal aid or representation provided for persons faced with applications for surrender under the 2003 Act.
3. The Order appealed against
In the High Court Edwards J. found against Mr. O'Connor’s contentions in both proceedings. The order sought by the Minister in the European Arrest Warrant proceedings (“the EAW proceedings”) was made. Likewise, Mr. O’Connor’s plenary constitutional proceedings were dismissed. So far as the EAW proceedings were concerned, Edwards J. certified, in accordance with that Act, a point of law of exceptional public importance, in respect of which it was considered desirable in the public interest that it be the subject of an appeal (applying s.60(11) of the 2003 Act). That certification was necessary to bring an appeal to the Court of Appeal against the order of Edwards J. providing for Mr. O’Connor’s surrender. The point certified related to whether, as a matter of EU law, Mr. O’Connor had an entitlement to legal aid. In the plenary proceedings Mr. O'Connor exercised his right to appeal to the Court of Appeal.
The Court of Appeal delivered three separate judgments. Ryan P. and Irvine J. upheld the ultimate conclusions of the High Court in full. In a partially dissenting judgment Hogan J., agreed with the majority in following the decision of this Court in Olsson (Minister for Justice, Equality & Law Reform v. Olsson  1 I.R. 384) and, therefore, held that the right to legal assistance provided for in Art. 11(2) of the Framework Decision (2002/584/J.H.A. of 13 June 2002 – O.J. L 190/1 18.7 2002) referred only to a right to legal representation and not to legal aid as such. However, Hogan J. came to the view that the distinction between the entitlement of a person faced with surrender to the International Criminal Court under the International Criminal Court Act, 2006 (which provides for a statutory form of legal aid) and that of a person facing surrender under the 2003 Act (where there is only an administrative scheme in place) amounted to a breach of equality before the law as provided for in Art. 40.1 of the Constitution. On that basis Hogan J. would have granted a declaration that “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”.
Thus all three members of the Court were persuaded that, following Olsson, no EU legal rights had been breached. So far as the plenary proceedings were concerned the Court of Appeal decided, by a majority of two to one, that there was no constitutional difficulty with the scheme of legal aid in place. The dissenting judgment took a different view on that latter question in the manner identified above.
4. The Contentions of the Parties
The notice of application for leave to appeal together with the response are published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which Mr. O'Connor suggests that the constitutional threshold for leave to appeal has been met.
So far as the EAW proceedings are concerned, Mr. O'Connor suggests that the Court of Appeal may have applied an aspect of the judgment of this Court in Olsson which was obiter and did not form part of the ratio decidendi. Mr. O'Connor also suggests that the legal aid scheme in place cannot be said to have been adopted under “national law” in the sense in which that term is understood as a matter of EU law. In that context it is said that that question is not acte clair and that this Court, as a court of final appeal, is, therefore, required to refer that question to the Court of Justice. Those issues are said to be of general public importance so as to meet the constitutional threshold for leave to appeal. So far as the plenary proceedings are concerned it is said that the issue upon which Hogan J. dissented represents an issue of general public importance so as also to meet the constitutional threshold.
The Minister opposes the grant of leave. The Minister says that, so far as the EAW proceedings are concerned, the issue was determined in Olsson. It has to be said that the Minister’s response so far as the plenary proceedings are concerned appears simply to argue that the contentions of Mr. O'Connor are incorrect and does not seem to address the question of whether a point of law of general public importance arises.
As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. The text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that a lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.
Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.
Given the issues raised on this application for leave it may be useful to address a few matters of general application.
First, it should be made clear that where this Court has given a recent determination on an issue which can, as a result of the decision of this Court, be taken to have clarified the relevant law in a particular area, it would require special and wholly unusual circumstances for this Court to form the view that the constitutional threshold was met so as to enable the same, or a very similar, question to be debated again. It is clear from determinations such as Lyons v. Ireland & ors  IESC DET 38 that, even where the underlying question in proceedings may involve an issue of general public importance, the constitutional threshold will nonetheless not be met unless there is a stateable case for the appeal sought to be brought. That general principle applies in particular to cases where this Court has given a recent and authoritative ruling which clarifies the relevant law. In such circumstances it cannot be said, save in special and wholly unusual circumstances, that an issue of general public importance arises for any such issue will have been settled by the earlier decision of this Court.
Second, it is necessary to analyse the situation which arises where it is suggested that this Court might be required to refer a question of the interpretation of European law to the Court of Justice. The obligation of a court of final appeal to make such a reference has, of course, been clarified by the Court of Justice in Cilfit  ECR 3415. If the point is necessary to resolve the proceedings and unless the point is acte clair in accordance with the jurisprudence of the ECJ, then a court of final appeal has an obligation to refer. Where part of the basis on which an appellant seeks leave to pursue an appeal to this Court from the Court of Appeal involves an issue of European law which has not been the subject of a reference in the case either by the High Court or the Court of Appeal then it will be necessary for this Court to consider whether it might, should an appeal come before it, find itself in a position where it was obliged to refer to the Court of Justice. If, on a preliminary examination of the case in the context of an application for leave, there appears to be a realistic possibility that the Court might find itself in a position where it would be so obliged to refer, then it would be difficult to envisage circumstances where the constitutional threshold for leave would not be met. By definition in those circumstances the point of European law must arise in a way where its resolution is arguably necessary to resolve the case. Likewise, the issue of European law must arguably not be acte clair. Unless those requirements are met then this Court would not, of course, have an obligation to refer. But if a potentially unclear provision of European law may be necessary to resolve the case then it seems difficult to envisage circumstances where the case would not raise an issue of general public importance.
Against the background of those general observations the Court is not satisfied that the issues sought to be raised concerning the fine distinction between the ratio decidendi and the allegedly obiter comments found in Olsson meets the constitutional threshold. Olsson must be taken as a recent and authoritative determination by this Court of the issues raised in that case and there is no legitimate basis put forward for seeking to revisit same.
Turning next to the plenary proceedings there are two issues which would potentially arise on any appeal. The first is whether, as Hogan J. in his dissenting judgment concluded, there is unconstitutional inequality arising from the manner in which statutory legal aid is afforded to those who may face surrender to the International Criminal Court but not in favour of those who face surrender under a European Arrest Warrant. The second issue concerns the consequences for the order of surrender made in the EAW proceedings in the event that impermissible inequality is found to exist. In the light of the careful and reasoned dissenting judgment of Hogan J. in the Court of Appeal it would be impossible to say that there are not arguments both ways on the equality issue. That issue clearly transcends these proceedings for, if the equality argument were made out, it would apply to any person faced with an application for surrender under the 2003 Act. That issue, therefore, clearly meets the constitutional threshold.
The position adopted in the response of the Minister on this point simply suggests that the point is of no merit having regard to what is asserted to be the effective legal representation provided on an administrative basis. To so state is to do no more than to suggest that the view of the majority (and in particular that of Irvine J.) is correct. Clearly, at this stage, this Court expresses no view on the merits or otherwise of the point. But it does not seem to this Court that the response on behalf of the Minister properly engages with the question of whether the constitutional threshold for leave to appeal is met. To state no more than that the decision of the Court of Appeal against which leave to appeal is sought is correct is not to address the true question.
In the light of the fact that this Court has concluded that the equality issue meets the constitutional threshold for leave it seems to follow that the question of the consequences which would flow from such a determination, were this Court persuaded that the appeal on this point should succeed, for the validity of the order of surrender made in this case must also, in the interests of justice, be permitted to be argued. The Court will, therefore, grant leave to appeal against the decision of the Court of Appeal in the plenary proceedings but confined to the specific issues which the Court has identified in this determination.
So far as the EAW proceedings are concerned the Court must consider whether there is a realistic possibility that it might be persuaded, should a full appeal go ahead, that it would be necessary to make a reference to the Court of Justice. It should be emphasised that the mere fact that an application for leave to appeal asserts an issue of European law is insufficient. It is necessary that the application persuade the Court that there is a realistic possibility that the Court might be placed in a position where it was obliged to refer under the Cilfit jurisprudence. It should also be emphasised that the fact that the Court takes that view does not, of course, mean that there must necessarily be a reference when the substantive appeal is heard. It is entirely possible to envisage circumstances in which the Court regards it as reasonably possible that a reference may be required as a result of the preliminary investigation carried out on a leave application, but nonetheless, after full consideration on the hearing of an appeal, is not ultimately persuaded that a reference is either necessary or appropriate. For present purposes it is sufficient for the Court to indicate that it cannot rule out the realistic possibility that it might prove necessary to make a reference in the circumstances of this case.
As already pointed out the Court does not propose to give leave directed towards revisiting or parsing and analysing Olsson. However, the Court will give leave for the purposes of affording Mr. O'Connor an opportunity of persuading the Court that a reference to the Court of Justice is either necessary or appropriate.
The Court will, therefore, grant leave to appeal from the Court of Appeal but confined to the following grounds:-
And It is hereby so ordered accordingly.
(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.