Mc Dermott -v- Governor of Cloverhill Prison & Ors

Factual and Procedural Background

An application for habeas corpus was made pursuant to Article 40.4.2 of the Constitution challenging the constitutionality of section 16(12) of the European Arrest Warrant Act 2003 (EAWA 2003) as amended by the Criminal Justice (Miscellaneous Provisions) Act 2009 (CJ(MP)A 2009). The applicant faced surrender pursuant to two European Arrest Warrants issued by the City of Westminster Magistrates for conspiracy to supply drugs and conspiracy to launder money. Arrested at Dublin Airport, the applicant applied for legal aid but later abandoned the application for support under the Attorney General’s Scheme. The High Court previously refused bail and denied a Certificate of Appeal to the Supreme Court under section 16(12) EAWA 2003. The applicant challenged the adequacy of the Attorney General’s Scheme and the proportionality of the statutory provisions under EU law and the European Convention on Human Rights (ECHR). The Notice Party, the Human Rights Commission, did not participate in the proceedings.

Legal Issues Presented

1. Whether the refusal to provide support under the Attorney General’s Scheme breaches the applicant’s rights under the Framework Decision.
2. Whether section 16(12) of the European Arrest Warrant Act 2003 is proportionate under EU law and/or the European Convention on Human Rights.
3. Whether a declaration of incompatibility, if granted, would require the applicant’s release.

Arguments of the Parties

Applicant's Arguments

• The Attorney General’s Scheme is an inadequate safeguard of rights under the ECHR and the Framework Decision, as the applicant was represented only on a pro bono basis without state support.
• The requirement in section 16(12) that the High Court certify a point of law of exceptional public importance before an appeal to the Supreme Court is disproportionate and violates constitutional and EU rights, including Articles 19(1) TEU, 47 CFR, and 13 ECHR.
• If a declaration of incompatibility is granted, the applicant should be released.
• Additional points raised but not argued at hearing included specialty concerning conspiracy charges and the State’s failure to make a Declaration under former Article 35(2) TEU.

Respondents' Arguments

• The applicant lacked locus standi to challenge the Attorney General’s Scheme because he abandoned the application for support under it, rendering the challenge a jus tertii (a theoretical challenge on behalf of others).
• Section 16(12) EAWA 2003 is constitutional and does not infringe the applicant’s right to a fair trial or access to the courts.
• The statutory scheme provides an effective remedy consistent with EU law and the ECHR.
• The applicant’s surrender was lawful and the warrants complied with statutory and EU requirements.
• A declaration of incompatibility does not entitle the applicant to release or an unrestricted appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by applying the reasoning from the earlier O'Sullivan case, holding that section 16(12) EAWA 2003 as amended is constitutional and does not infringe the applicant’s right to a fair trial or access to courts. The Court found that the applicant lacked locus standi to challenge the Attorney General’s Scheme because he had abandoned his application for support under it, rendering any challenge theoretical (jus tertii) and thus inadmissible. The Court emphasized that the Scheme is designed to provide representation to those without adequate means, and the applicant’s pro bono representation did not constitute state support under the Scheme.

Regarding proportionality, the Court held that the principle only applies where there is a prima facie infringement of a right. Since no such infringement was found in relation to section 16(12), proportionality analysis was unnecessary. The Court referred to established jurisprudence that the right to appeal to the Supreme Court on constitutional matters remains intact under the section. The Court also rejected the applicant’s arguments concerning specialty and the Declaration under Article 35(2) TEU as previously decided in other cases.

On the issue of a declaration of incompatibility, the Court observed obiter that such a declaration does not automatically entitle the applicant to release, as per section 5 of the European Convention on Human Rights Act 2003, which preserves the validity and enforcement of the law despite such declarations until legislative amendment occurs.

Holding and Implications

The Court REFUSED the applicant’s application for habeas corpus.

The direct effect of this decision is that the applicant’s surrender pursuant to the European Arrest Warrants will proceed, and the constitutional challenge to section 16(12) EAWA 2003 and the Attorney General’s Scheme was dismissed. No new precedent was set beyond affirming the constitutionality of the statutory provisions and clarifying the applicant’s lack of standing to challenge the legal aid scheme after abandoning the application. The Court confirmed that a declaration of incompatibility would not entitle automatic release or unrestricted appeal rights.