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Cite as:  1 IR 384,  IESC 1,  2 ILRM 395
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Judgment Title: Minister for Justice Equality and Law Reform v Olsson
Neutral Citation:  IESC 1
Supreme Court Record Number: 54//08
High Court Record Number:
Date of Delivery: 13/01/2011
Court: Supreme Court
Composition of Court: Murray C.J., Fennelly J., Macken J., O'Donnell J., MacMenamin J.
Judgment by: O'Donnell J.
Status of Judgment: Approved
THE SUPREME COURT
S.C. No. 54 of 2008
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Judgment delivered by O’Donnell J. on the 13th day of January, 2011
The appellant is a citizen of Sweden. His arrest was sought by that country pursuant to a European Arrest Warrant (“EAW”) issued on the 19th December, 2006 for the purposes of prosecution in respect of four offences of robbery and arson alleged to have occurred on the 20th and 21st of October, 2005. The warrant was endorsed for execution on the 19th December, 2006 and executed on the 5th July, 2007. The appellant raised a number of challenges to the warrant and also issued separate plenary proceedings seeking declarations that the provisions of legal assistance under the Attorney General’s Scheme (“the Scheme”) were in breach of Council Framework Decision 2002/584/J.H.A. of 13 June, 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. L 190/1 18.7.2002 (“the Framework Decision”), the European Convention on Human Rights and/or the Irish Constitution. All issues were heard together by the High Court in the European arrest warrant “EAW” proceedings. In MJELR v. Ollson  IEHC 37, (Unreported, High Court, Peart J., 20th February, 2008) the High Court rejected the appellant’s contentions , and directed that he be surrendered to Sweden in accordance with the provisions of the European Arrest Warrant Act 2003 (“the Act of 2003” or “the Act”), as amended. Against that judgment and order the appellant has now appealed to this Court.
On the hearing of the appeal the appellant sought leave to introduce further evidence being:
(2) a translation of a Swedish newspaper said to have been published “in November/December 2008” purporting to contain comments by a Swedish prosecutor on the substance of the case, and the EAW proceedings; and
(3) correspondence between the appellant’s Irish solicitors and the gardaí and, more pertinently, correspondence between the solicitors and members of the Swedish police force.
Although the proceedings, including the plenary proceedings and the interlocutory proceedings in the High Court, had together generated voluminous documentation raising a significant range of issues, the appellant through his counsel, Mr. Derek Kenneally S.C., acknowledged that in essence the appeal could be reduced to two issues: first, the question of the legal assistance available to the appellant; and second, whether the Court should refuse to surrender the appellant on the grounds that it was alleged that a decision had not been made to charge him with, and try him for, the offence as stated in the warrant (Under the EAW procedure surrender of a requested person may be sought for the purposes of either conducting a criminal prosecution or the execution of a custodial sentence or detention order). This narrowing of the potential issues in the case was welcome, but it should also be said, was both realistic and proper.
The appellant’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended. The proper approach to the interpretation of these provisions was clearly set out in the judgment of the Supreme Court delivered by Murray C.J. in Minister for Justice Equality and Law Reform v. Altaravicius  3 IR 148, at p. 155:-
The Framework Decision therefore imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise. It merely provides for a right of representation; and then only in accordance with the national law of the executing member state. That right, and more, has unequivocally been vindicated in the present case. The appellant argues, however, that the Act of 2003 imposes a more extensive obligation. The appellant points to s.13(4) of the Act of 2003 which provides inter alia:-
(b) obtain, or be provided with, professional legal advice and representation, and
(c) where appropriate, obtain, or be provided with, the services of an interpreter.”
Section 13(4) is limited in its own terms. Insomuch as the subsection imposes any obligation, it is as to the provision of information on arrest. The information required to be provided assumes the existence of a right to be provided with a lawyer and, if appropriate, an interpreter. No other provision of the Act however confers, or even refers to, a right to be provided with either a lawyer or an interpreter, and as was made clear in Minister for Justice, Equality and Law Reform v. Altravicius, the Framework Decision cannot be the source of any such right. There was, therefore, much debate in the parties’ written submissions as to the source of any such right, and whether it was statutory or constitutional in origin or derived in some way from the European Convention on Human Rights. It is, however, not necessary to resolve that matter for the purposes of this appeal. The respondent on this appeal did not seek to argue that the reference in s.13(4) was an error, and/or that there was no right to be provided with legal assistance. In those circumstances, this appeal has proceeded upon the same assumption as that made by s.13(4), namely, that there is a right to have legal assistance provided in appropriate cases. That being so, the precise derivation of any such right is not relevant to the resolution of the issue in this case: the only question is whether what was unambiguously made available and offered to the appellant (that is legal assistance under the Scheme) was the provision of legal assistance as of right, there being no suggestion that s.13(4) was not otherwise complied with, in that the appellant was, it appears, informed of the ability to obtain legal assistance under the Scheme.
The appellant’s point in this respect is narrow, but not necessarily any less effective for that. The Scheme is derived from the assurances given to the Supreme Court in open court, on behalf of the Attorney General, in the case of in Application of Woods  I.R. 154. Since that time the Scheme has always operated by the making of a recommendation by the court which the Attorney General almost always follows, although he or she is not obliged to do so. The appellant relies in this regard on the most recent iteration of the Scheme dated the 1st of May, 2000. Clause 8 of that document provides:-
It must be apparent that there are a number of significant difficulties with this argument. First, it is an assertion of theoretical form over actual substance. In this case the appellant was repeatedly invited to apply for the Scheme and assured that it would be made available to him. Second, the appellant has at all stages of his involvement with the Irish courts system been represented by experienced and able lawyers. The rules of conduct of the legal profession in Ireland, and indeed the law of tort, do not distinguish between the standards required of lawyers paid on a commercial basis, under a legal aid scheme, on a “no foal no fee” basis, or where they are providing services pro bono. The source of payment is not relevant to the nature of the representation afforded to the individual. The fact is that the appellant here received exactly the substance of what the assumed right requires: legal representation encompassing in this case, representation by senior counsel, junior counsel and a solicitor ; and if necessary, it would be paid for by the State. At the hearing therefore, there was some debate as to whether in such circumstances the appellant had locus standi to raise any challenge to the Scheme. If the issue was compliance with the Framework Decision, then I would think the appellant does lack locus standi and indeed merit, since he had manifestly obtained representation in accordance with national law. Insomuch however as he contends that he has not received such representation as of right, he does have locus standi to make that challenge. Even then, it is difficult to see how the appellant, or anyone else in this position, is in any way affected as a matter of reality by the outcome of this case. Indeed even in the hypothetical case where the court refused to make a recommendation at the close of a case, or the Attorney General subsequently refused to follow the recommendation (and because of the stance taken by the appellant’s lawyers that point could never arise in this case in fact), the requested person would still have received representation. The parties with a grievance in any such situation would be the legal representatives and not the client. The issue for the appellant is almost an academic one ; and I would have had no hesitation in holding that the Court would be entitled to refuse to grant any declaratory relief in the plenary proceedings in the exercise of its discretion on the grounds that the declaration, if granted, would be of no substantial benefit to the appellant.
Insomuch as the appellant advanced this point in answer to the EAW proceedings, however, then it might be said that the rules relating to declaratory relief did not apply, and that he was entitled to argue that there was non-compliance with the Act, since compliance with the Act (and the Framework Decision) is a precondition to return pursuant to section 10. But this argument faces two further difficulties. First, there has been full compliance with the Act. As already observed, section 13(4) only requires the provision of information in relation to the requested person’s entitlement to have legal assistance provided for him, and this was done. Second, there is a subtle but significant shift in the manner in which the appellant makes his case. Section 13(4) does not refer to the provision of legal aid “as of right”: rather it provides for information being provided to a requested person as to his right to have legal representation and if necessary have it provided for him. It can be said that there is virtually no right which is unqualified: the Act of 2003 does not require that there be an unqualified right to legal aid ; and all that is required is that the requested person be informed of the nature and extent of the right accorded to him. To take one example, it is now accepted that the criminal legal aid scheme itself is not the mere provision of a statutory entitlement but the provision of a constitutional right. In Carmody v Minister for Justice Equality and Law Reform  IESC 71 (Unreported, Supreme Court, 23rd October, 2009) Murray C.J. observed, at p. 19:- “One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely vindicating that right.” But that scheme is subject to criteria; most notably in relation to the means of the appellant, and the gravity of the offence with which the person is charged. It could not be suggested, however, that the fact that legal aid is subject to such delimitations means that, where it is actually provided it is not provided as of right . Nor, can it be said that if informed of the limitation on the scheme, a person has not been informed of his or her right to be provided with legal representation, even if such person does not come within the provisions of that scheme. Again taking the example of the Criminal Legal Aid Scheme; the right to be represented, and if unable to pay for representation to have such representation provided, is really an aspect of the right to a trial in due course of law guaranteed by Article 38.1, and the administration of justice required under Article 34.1. A trial on a serious charge without such legal assistance would fall short of those constitutional standards. See State (Healy) v Donoghue  IR 325. The Constitution focuses on the fairness of the trial, not on the precise manner in which any representation is made available. At the same time there are aspects of the Attorney General’s Scheme, which can be said to be rights in the sense of a claim which is legally enforceable. Thus I take it that an applicant has an entitlement to apply for the benefit of the Scheme, and has a further entitlement to have such application considered by the Court and the Attorney General. The practical effect of s. 13(4) in this case is that once the applicant was informed of the circumstances in which he was entitled to benefit from the Attorney General’s Scheme and the limitations on that Scheme, then I consider that he had been informed of his right to have legal assistance provided for him . There was compliance with the section . However, it is not necessary to resolve that issue definitively, because the matter is in my view, put beyond doubt by the evidence and submissions made in this case.
In these proceedings an affidavit was sworn by Mr. Jevon Alcock, a solicitor in the Chief State Solicitor’s Office instructed in this case on behalf of the Attorney General. At paragraph 10 of that affidavit he states:-
In my view, this sworn statement, together with the assurances repeated to this Court, when taken with the provisions of the Scheme itself, amply satisfy any requirement implicit in section 13(4). Since in EAW cases, there is no residual discretion on the part of the Attorney General, the provision of legal services in such cases cannot properly be described as merely a matter of benevolence or discretion. On the contrary, where such services are provided pursuant to the Scheme as so expressed, then such services are in my view properly described as being provided as of right. Accordingly, I would reject this aspect of the appeal.
The second point raised by the appellant is also of general importance. The evidence in this case makes it clear that the appellant will not be prosecuted with the offences set out in the European arrest warrant until the Swedish prosecutors have interviewed him. Furthermore, it is common case that the result of that interview may be that the appellant will not be prosecuted at all. In such circumstances the appellant contends that he should not be surrendered pursuant to the warrant relying in this regard on the provisions of s.21(A) of the Act, as amended. That section provides:-
(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.”
7 From the inquiries that I have made I am satisfied and I believe that the [appellant] is not being sought in the Kingdom of Sweden for the purpose of standing trial. I say that the required decision in that regard has not been made and that the surrender of the [appellant] is sought only for the purposes of continuing criminal investigation and not for the purpose of the [appellant] being charged with or standing trial in respect of any offence but more particularly the offences specified in the EAW.”
Ms. Maderud has sworn a replying affidavit. Paragraphs 5 and 6 are of particular importance:-
6 …I am at a loss to understand how the [appellant] could reasonably be of the belief that he is not wanted for the purpose of a criminal prosecution. ….Under Swedish law and pursuant to the Framework [Decision] of the 13th June 2002, the Kingdom of Sweden only issues European Arrest Warrants for the purposes of either conducting a criminal prosecution or executing a custodial sentence or detention order. This European Arrest Warrant is issued for the former purpose.”
The issue here, however, is not merely one of the evidence before the Court. As is apparent, s.21A(2) contains a presumption that a decision has been made to charge the person and try him or her for the offence. Furthermore, the opening lines of the EAW itself, request that the person mentioned below “be arrested and surrendered for the purposes of conducting a criminal prosecution …” That statement, and the further statements made in Ms. Maderud’s affidavit in relation to the practice of the Kingdom of Sweden, must also be read in the light of recital 10 of the Framework Decision which describes “[t]he mechanism of the European arrest warrant [as being] based on a high level of confidence between Member States”. It is clear, therefore, that cogent evidence is required to raise a genuine issue as to the purpose for which a warrant has been issued and surrender sought. This was emphasised in the judgment of Murray C.J. in Minister for Justice v. McArdle  4 IR 260, 268:-
It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an “accused” person. All one can say with confidence is that a purposive interpretation of “accused” ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an “accused” person is satisfied.”
Thus, the concept of the “decision” in s.21A should be understood in the light of the “intention” referred to in s.10 of the Act and the “purpose” referred to in article 1 of the Framework Decision.
When s.21A speaks of “a decision” it does not describe such decision as final or irrevocable, nor can it be so interpreted in the light of the Framework Decision. The fact that a further decision might be made eventually not to proceed, would not therefore mean that the statute had not been complied with, once the relevant intention to do so existed at the time the warrant was issued. The Act does not require any particular formality as to the decision; in fact, s.21 focuses on ( and requires proof of ) the absence of one. The issuing state does not have to demonstrate a decision. A court is only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that person. This would be so where there is no intention to try the requested person on the charges at the time the warrant is issued. In such circumstances, the warrant could not be for the purposes of conducting a criminal prosecution.
The requirement of the relevant decision, intention or purpose can best be understood by identifying what is intended to be insufficient for the issuance and execution of a European arrest warrant. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s.10 of the Act of 2003) Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of section 21A. As the Chief Justice pointed out in Minister for Justice v. McArdle, that result is not altered by the fact that there may be a continuing investigation, or indeed that such investigation will be assisted by the return of the requested person.
It would be entirely within the Framework Decision and the Act if, after further investigation, the prosecution authorities decided not to prosecute because, for example, they had become convinced of the requested person’s innocence. There would still have been an “intention” to prosecute, and a decision to do so at the time the warrant was issued and executed. Accordingly the warrant would have been issued for the purposes of conducting a criminal prosecution. What is impermissible is that a decision to prosecute should be dependent on such further investigation producing sufficient evidence to put a person on trial. In such a situation there is in truth no present “decision” to prosecute, and no present “intention” to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. In such a case any warrant could not be said to be for the purposes of conducting a criminal prosecution: instead it could only properly be described as a warrant for the purposes of conducting a criminal investigation. In such circumstances, a court would be satisfied under s.21A that no decision had been made to charge or try the requested person.
It is noteworthy, that on the evidence in this case, the position in relation to the appellant is not by any means unusual in the Swedish system, and indeed represents the norm in a number of European countries. It would be a surprising result if either the Framework Decision or the Act of 2003 were to be interpreted so as to prevent the execution of the European arrest warrant in respect of such countries and where (as here) the requesting authority had in the terms of the warrant, and in sworn evidence in the case, stated that the warrant was issued for the purposes of conducting a criminal prosecution. The High Court was entirely correct to conclude that there was here a clear, intention to bring proceedings within the meaning of s10, and that the warrant could be said to be for the purposes of conducting a criminal prosecution within the meaning of the Framework Decision and that the only thing which stood in the way of commencement of such prosecution was the requirement of presence of the accused and the interview where he could respond to the investigation. In short the intention of the Swedish prosecution authority to bring the appellant before the Swedish Court for the purpose of being charged is but a step in the prosecution process. For the reasons set out above the High Court was correct to conclude that the respondent was not being sought only to be questioned as part of the investigation and that there was a decision to charge the appellant within the meaning of the Act. Certainly even without the presumption contained in s.21A(2), the section requires clear proof. Once a Court finds the European arrest warrant to be in order (and therefore on its face a request made for the purpose of prosecution or trial), then before a Court can refuse to surrender a person requested under such a warrant, it must be satisfied by cogent evidence to the contrary that a decision has not been made to charge the particular person with, and try him or her for, the offence. This has not been established. I would dismiss the appeal.