High Court of Ireland Decisions

Judgment Title: MJELR -v- Ollsen

Neutral Citation: [2008] IEHC 37


High Court Record Number: 2006 166 EXT

Date of Delivery: 20 February 2008

Court: High Court

Section 13 (4) of the Act provides:

(4) A person arrested under a European arrest warrant shall, upon his or her arrest, be informed of his or her right to—
consent to his or her being surrendered to the issuing state under section 15,
obtain, or be provided with, professional legal advice and representation, and
where appropriate, obtain, or be provided with, the services of an interpreter. (my emphasis)


Mr Kenneally has referred also to the provisions of Article 6.3 of the Convention which, inter alia, provides that “everybody charged with a criminal offence has the … minimum right … to have adequate time and facilities for the preparation of his defence [and] to defend himself in person or through legal Counsel of his or her choosing or, if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require …” (my emphasis)

The Scheme itself has been produced to the Court, and it is relevant to set out some of the contents of the document:

“6. The costs payable to the solicitor, and the fees payable to counsel are at most those which would be payable in a case governed by the Criminal Justice (Legal Aid) Regulations current for the time being, applied mutatis mutandis”

It provides also that where the Court makes a recommendation for payment of costs and fees under the Scheme, “the Attorney General is not bound by the recommendation of the Court”.

Mr Kenneally submits that such a discretionary basis of payment cannot be an adequate discharge by the State of its obligations pursuant to the Framework Decision, especially where a respondent has no remedy available to him/her if the Attorney General was to exercise his absolute discretion to refuse to make a payment even though the Court had made a recommendation in that regard.

He has referred to the judgment of Gannon J. in the High Court and that of O’Higgins CJ in the Supreme Court in State (Healy) v. Donoghue [1976] IR 325, and to the judgment of the European Court of Human Rights in Airey v. Ireland, 9th October 1979 regarding the State’s obligation to provide legal aid in particular circumstances, and it is submitted the Scheme is not such a system of legal aid given its ex gratia and non-statutory nature.

It is submitted that payment under the Scheme is made only in respect of actual court time and takes no or no adequate account of time spent by Counsel and solicitor in the preparation of the case, and in this way a respondent is disadvantaged in a way which does not hamper the lawyers acting for the applicant, who has all the resources of the State at his disposal. It is submitted that the rate of such payments as are made falls far short of the economic cost that work. James MacGuill, the respondent’s solicitor, has stated in an affidavit that it is his experience over many years of practice as a solicitor that the level of payment made under the Scheme falls far short of what would be assessed by the Taxing Master for the same work. He states at paragraph 9 of that affidavit:

“… It is a particularly pernicious aspect of the Attorney General’s Scheme in that lawyers are forced into a position of either only carrying out work for which they will be paid, to the obvious detriment of their client, or discharging their professional obligations fully to their own economic cost.”

In support of these submissions the respondent has also filed an affidavit sworn by a Legal Costs Accountant, Cormac Breathnach. He avers to the fact that in another case (Aamond No.2) where the respondent successfully resisted an application for his surrender, costs were taxed pursuant to the order of the High Court, the respondent’s solicitor’s costs being taxed in the sum of €20,428.55 plus VAT, Senior Counsel’s fees in the sum of €12,000 plus VAT, and Junior Counsel’s fees in the sum of €10,333.33 plus VAT.

Mr Breathnach states that if senior counsel’s fees were discharged under the Scheme, they would have been in the sum of just €4000, with the same sum being paid to the solicitor, and two thirds of that sum to junior counsel, thereby creating a considerable shortfall between what is paid under the Scheme and what was achieved under taxation. He considers the shortfall in such cases to be in the region of about 75%.

The solicitors acting for the respondent have corresponded with the Chief State Solicitor’s office in relation to these concerns. The Chief State Solicitor has noted in that correspondence that the respondent has not sought to have his costs discharged under the Scheme, and has on a couple of occasions invited the respondent to do so, and has made the point that neither the Scheme nor the statutory Legal Aid Scheme are intended to provide taxed costs, but that payments under the Scheme can in certain cases include the cost of expert witnesses, though the point is made also that this has not arisen before in the context of a European arrest warrant.

The point is made in a letter dated 21st September 2007 that the recoverability of expert witness expenses will depend on the nature of the evidence and legal argument presented, and it is denied that payment under the Scheme is confined to court time only. It is stated in that letter also that the Scheme, if applied for, fulfils the State’s obligations under the framework Decision and that it is adequate to afford the respondent the opportunity to contest the application for his surrender.

In the event that this Court considers this State not to be in breach of its obligations, then the respondent seeks a declaration that the Framework Decision and the Act are unconstitutional and in breach of the Convention.

Because the constitutionality of the Act and the Framework decision is raised by the respondent on this application, the Attorney General was put on notice of the application. In fact, Plenary proceedings are issued in order to address the constitutionality issue.

David Barniville SC has appeared on behalf of the Attorney General and it is convenient to deal with his submissions on this point before dealing with the other points of objection raised by the respondent. Shane Murphy SC for the applicant makes essentially the same submissions in relation to this point of objection.

Mr Barniville submits that the right of the respondent to a European arrest warrant to be provided with professional legal advice and representation arises only from the provisions of s. 13(4) of the Act by which the State has given effect to the right in that regard specified in Article 11.2 of the Framework Decision already referred to, and not from the Constitution. It is not a right, it is submitted, which is guaranteed under the Constitution or the Convention since a respondent is not engaged in the defence against a criminal charge, but simply meeting an application for his surrender from this State to another State. As such, the situation of a respondent is to be distinguished from an accused person facing charges.

In so far as the respondent has relied upon the judgments in State (Healy) v. Donoghue [supra] Mr Barniville submits that the principles derived therefrom are not simply transferable to a respondent under a European arrest warrant. However, he submits also that were the two situations to be considered analogous, it is nevertheless the situation that the right to legal aid is not to be seen as an open-ended right for any representation which the respondent might choose to have, and that it is accepted, even in relation to legal aid, that an accused may be assigned a solicitor from the ‘legal aid panel’, being solicitors who have thereby indicated that they are prepared to take on such cases, and be remunerated under the provisions of that scheme. In this regard, Mr Barniville has referred to the judgment of Barr J. in The State (Freeman) v. Connellan [1986] IR. 433.

The Court was also referred to the judgment of Laffoy J. in Carmody v. Minister for Justice [2005] 2 ILRM 1 in which the learned judge found that there was no breach of constitutional rights where only a solicitor was assigned, rather than solicitor and counsel. During the course of her judgment, Laffoy J. stated also that the fact that there may in terms of lawyers be a numerical imbalance or divergence of legal qualification between the prosecution team and the defence team, does not disadvantage the accused person to the extent that his constitutional guarantee to a fair trial is imperilled, unless it can be shown that the lawyer defending him cannot do so effectively.

Accordingly it is submitted that in the present case there ahs been no breach of any constitutional right.

In so far as the respondent objects to his surrender on the basis that certain rights under the Convention will be infringed, the applicant and the Attorney General submit in relation to this particular point of objection (i.e. the Attorney General Scheme) that it is clear that as far as Articles 3, 5 and 8 of the Convention are concerned, none is engaged in relation to provision of legal advice and representation. In so far as these Articles may be relevantly argued in relation to other points of objection, they are dealt with later in relation to same. In my view, it is unnecessary to dwell on those particular articles at the moment. They are not relevant to this issue under consideration.

But in relation to Article 6 of the Convention, Mr Barniville has submitted that the surrender procedure under a European arrest warrant does not equate to a trial for an offence, and that as such, Article 6 is not engaged. But, he submits, even if it were to be found to be so engaged, the minimum rights guarantee is met by the provision of legal assistance under the Scheme, and the right guaranteed is not to have provided to the respondent the same level of representation as the applicant, and that there are no mandatory levels of such assistance. He has referred to a number of judgments of the European Court of Human Rights in support of this submission. He refers also to the judgment of Murray CJ in Attorney General v. Parke, unreported, Supreme Court, 6th December 2004 wherein he stated that the inquiry by the Court in an extradition application is not adversarial in nature, but rather is ‘sui generis’, and not in the nature of a criminal trial.

In any event, Mr Barniville submits that the Scheme by reference to its own terms is a method of payment of reasonable legal fees for persons who cannot be considered able to pay for their own advice and representation, and that it is a reasonable payment in applications on foot a European arrest warrant, and the use of the Scheme in such applications cannot be seen to constitute a breach of minimum rights under Article 6 of the Convention, even if that Article is engaged in such applications at all. He submits that it is simply inappropriate and wrong to compare the level of fees gained upon taxation of costs with payment under the Scheme. I agree that such a comparison is irrelevant, even though I accept as a fact that in most if not all cases, the costs achieved on taxation will most likely exceed by a considerable margin those paid under the Scheme.

Mr Barniville points to the fact in any event that in the present case the respondent has declined to have his fees met under the Scheme, even though the applicant has considered that he meets the criteria for its application, and has invited the applicant to apply for a recommendation in that regard. He points also to the fact that the respondent has nonetheless had available to him the expert services of an experienced solicitor and both senior and junior counsel, and clearly has suffered no disadvantage. He submits that in such circumstances the respondent lacks ‘locus standi’ to raise the issue on this application.

I prefer not to reach conclusions on this point merely on the locus standi point.

However, it seems to me that there may well be merit in that point, and that a respondent to an application to surrender would have to show not simply that he had no means of obtaining and paying for his own legal costs, but also establish that he had been unable to obtain the services of a solicitor who was prepared to take the case on the basis of being remunerated under the Scheme. Such a respondent would necessarily stand before the Court with no lawyer to represent him, and the Court might in such circumstances be obliged to delay the hearing of the application for his surrender until such time as that legal advice and representation was provided. But that is entirely different from saying that the State is in breach of its obligations because the lawyers who have been engaged, on whatever basis, are unhappy with the level of their remuneration under the Scheme.

I am fully cognizant of what is probably the reality in the present case, and that a deliberate decision was taken at the outset by the present solicitor and counsel not to seek to have their fees discharged under the Scheme, lest by so doing the respondent would indeed be found to lack locus standi, or at least that their arguments and submissions might be considered to be weaker.

I am presuming, and I suggest safely so, that by not seeking a recommendation for the Scheme in circumstances where if they done so it would certainly have been granted, the respondent’s lawyers are preferring to run the risk that they will not recover any costs in relation to this case should none of the points of objection succeed, and so that this point can be the more easily argued.

The Court cannot blind itself to the fact that for many years now lawyers have found the Scheme unsatisfactory both in terms of the level of remuneration thereunder, its discretionary and non-statutory nature, and the speed, or perhaps more correctly the lack of it, by which payment is actually received. But while there may be disquiet in relation to the way the Scheme operates, the fact is that every day of the week lawyers appear before the High Court on applications such as Habeas Corpus, Bail, EAW applications, and judicial review, and those Counsel are always instructed by solicitors. In other words there appears to be no shortage of lawyers in both branches of the profession who are prepared to act for clients on the basis of remuneration under the Scheme, in spite of what they perceive as its shortcomings. Until that situation ceases it appears to me that the Scheme works in the sense that it ensures that persons who have an entitlement to legal representation before a Court, whether in a criminal matter or otherwise, and a matter such as the present case, are professionally represented. Indeed in the very large number, perhaps over a hundred, of EAW cases which I have dealt with since 1st January 2004, when the Act first came into effect, I have not known a case in which at the very earliest stage following arrest a respondent has been unable to obtain, or even had difficulty obtaining the services of a solicitor with experience in this area of work, and on all occasions also Counsel have been retained. I can think of no such case.

It seems to me that if lawyers wish to have the Scheme improved or even replaced, there are channels available within which that objective can be argued for, and possibly advanced, but this Court is not the appropriate forum in which to advance that cause on the basis that a respondent’s constitutional and Convention rights are infringed by the level of fees payable under the Scheme, and by attempting to establish that the State is in breach of its Framework Decision obligations, or its constitutional and Convention obligations.

However, having said that much I will retu8rn to some of the issues raised.

In my view, a respondent has no absolute right under either the Constitution or the Convention to the services of the solicitor and counsel of his choice, or simply of a solicitor of his choice. As it happens in this case, the respondent has the lawyers of his choice. He has been at no disadvantage whatsoever in having his objections raised and argued fully. In my view the basis of that retainer is of no relevance.

The State’s obligation under the Framework Decision, as reflected in and given effect to by s. 13(4) is to ensure that on the hearing of the application for surrender the respondent has either had the opportunity to obtain professional legal advice, or where he cannot afford so to do, be provided with such advice and representation. The applicant and the Attorney General are in my view correct when they submit that the right of the respondent in this regard derives not from the Constitution or the Convention, but from the State’s obligations under the Framework Decision. Even if this was not the case, and the right arises under the Constitution, I am satisfied that the availability of the Scheme is a sufficient of any such obligation, since it can be seen to provide successfully a means by which relevant impecunious litigants can have representation before the Court. Different considerations would arise if for whatever reason the Scheme did not secure that representation. Lawyers from both branches of the profession are free to choose not to take a case on the basis of that form and level of remuneration. But there is no evidence that such a choice is made by so many that it has become ineffective as a means of achieving legal representation in cases to which the Scheme applies for those entitled to it.

As far as Article 6 of the Convention is alleged to be breached by the State by the application of the Scheme, I should for the sake of completeness refer to the judgment of the European Court of Human Rights in Mamatkulov v. Turkey, ECHR, 4th February 2005 which was referred to in argument before me. In that case, the extradition of the applicant was sought from Turkey to Uzbekistan, and it was argued, inter alia, on behalf of Mr Mamatkulov that the extradition application heard in Turkey was an unfair hearing and in violation of the applicant’s rights under Article 6 of the Convention. The facts of the case are of course completely different to the present case, but it is important to note that in its judgment, the Grand Chamber, in finding no such violation, stated at paras 82-83:

“The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6.1 of the Convention ……… Consequently, Article 6.1 of the Convention is not applicable in the instant case.”

This Court is obliged to have regard to the jurisprudence of that Court, and I am satisfied therefore, even though I have reached conclusions in any event on the merits of the issue raised, that the respondent is not entitled to rely upon the rights guaranteed in Article 6 for the purpose of raising objection to an order for his surrender.


2. Warrant has been issued for the purpose of continuing an investigation in Sweden, and not for the purpose of prosecuting the respondent for the offences in question:

Before addressing the applicant’s submissions under this point of objection, I should refer to the fact that in the opening paragraph of the warrant the prescribed text for the warrant has been followed exactly by stating that the surrender of the respondent is requested “for the purpose of conducting a criminal prosecution….”

Relevant also are the provisions of s. 21A of the Act, as amended, namely:

21A.-(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state. (my emphasis)

(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.” (my emphasis)