User:Law Student 1996/sandbox2

PAIR 90

Minister for Justice, Equality, and Law Reform v Olsson [2011 IESC 1 ] ; [2008 IEHC 37 ] was an Irish Supreme Court case in which the Supreme Court held that the provision of legal aid in accordance with the Attorney General Scheme was not a right under the European Arrest Warrant Act, 2003.

Background
Thomas Olsson was the appellant in this case. He was a Swedish citizen, who was living in Ireland when a European Arrest Warran t (EAW) was issued for his surrender on the 5th August 2006. His surrender was sought in relation to four offences of arson and robbery in Sweden. These offences were alleged to have occurred on the 20th and 21st of October 2005. The Swedish authorities were required to interview Olsson before prosecuting him in regards to these offences. On the 19th December 2006, the Irish High Court endorsed the execution of the EAW. He was then arrested on the 5th July 2007. He was subsequently brought before the High Court, following section 13 of the European Arrest Warrant Act, 2003 (the Act of 2003).

Holding of the High Court
Olsson made several objections to the execution of this EAW. He also sought "plenary proceedings"  regarding a declaration that the provision of legal aid in accordance with the Attorney General Scheme is in violation of, "Council Framework Decision 2002/584/J.H.A. of 13 June, 2002 on the European arrest EAW 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." Furthermore, he opposed the EAW based on the lack of decision by the Swedish authorities to charge him in connection with the offences of arson and robbery, before interviewing him. The judge of the High Court, Peart J, rejected the objections of the appellant and held that it was required to complete the order as set out by the Act of 2003. Olsson chose to appeal this decision to the Supreme Court. He argued that the Supreme Court should overturn the judgment of the High Court and refuse his surrender.

Holding of the Supreme Court
O’Donnell J delivered the written judgment for the Supreme Court. This was the only written judgment because the other judges; Murray CJ, Fennelly J, Macken J, and MacMenamin J, concurred with his decision. Within this judgement, O’Donnell J addressed the two primary bases of the appellant’s objections to the execution of the EAW and the order of the High Court.

Legal Aid
The first base of appeal was that the provision of legal aid in accordance with the Attorney General’s Scheme was in breach of the requirements of the Act of 2003, and the Framework Decision, for a person whose surrender was sought by an EAW. O’Donnell J interpreted these provisions through the judgment of Murray C.J. in Minister for Justice Equality and Law Reform v. Altaravicius [2006 3 IR 148 ]. Firstly, the Supreme Court found that a Member State was not required to provide legal aid under the Framework Decision. It held that a Member State was obligated to provide a right of representation, in compliance with the Member State’s national law, as established in Article 11.2 of the Framework Decision. This right of representation had been offered to Olsson throughout the case.

Furthermore, O’Donnell J examined section 13(4) of the Act of 2003 and found that it did not obligate legal aid as a right. Nevertheless, it did state that there was an obligation to provide information relating to the scope and nature of the legal aid available to the person in question, and the availability of an interpreter, if necessary. The Supreme Court held that during the case, the Act had been complied with as Olsson had been repeatedly made aware that he could apply to the Attorney General’s Scheme. Moreover, O’Donnell J noted that through his engagement with the Irish legal system, Olsson, “had been represented by experienced and able lawyers.” Therefore, the Supreme Court rejected the first base of appeal.

Lack of Prosecution of the Appellant
The second base of appeal was that Olsson’s surrender was sought by the Swedish authorities, despite their lack of a decision to charge him with the offences of arson and robbery as outlined in the warrant, prior to interviewing him. Olsson argued that he should not be extradited under the EAW, according to section 21 of the Act of 2003, or section 79 of the Criminal Justice (Terrorist Offences) Act 2005. The Supreme Court held that though the Swedish authorities had not yet brought criminal proceedings against Olsson, there was an intention to do so following the interview with the appellant. O’Donnell J explained that this was because the 2003 Act established a procedure for the execution of arrest warrants from the Irish jurisdiction to other legal systems. Hence, the “decision” mentioned in section 21(A) of the Act of 2003, did not have to be absolutely final and definite. Additionally, the Supreme Court held that it would be within the scope of the Framework Decision and the 2003 Act, if the authorities chose to not prosecute Olsson following further investigation because the intention to prosecute the appellant existed at the time of the issuing and execution of the EAW. Therefore, the Supreme Court held that the High Court was correct in its decision to find that there was evidence that the appellant would be prosecuted following the interview with the Swedish authorities. Thus, the second base of appeal was rejected by the Supreme Court.

Conclusion
Therefore, the Supreme Court dismissed the appeal and affirmed the order of the High Court.

Background
The appellant in this case was Bus Éireann. On the 13th of November 2004, Rose Ahern was travelling on a bus in Limerick when the driver was required to brake unexpectedly to avoid colliding with a car, which pulled up in front of the bus. This caused Ahern to fall from her seat, resulting in injuries to her chest, face, left thumb, and lower left leg.

Holding of the High Court
As stated by Denham CJ in the Supreme Court judgment, “liability was not an issue in the High Court.” Nevertheless, Bus Éireann disputed the scope of Ahern’s injuries. Specifically, they contested her claim that she required a carer as a result of her injuries because, “this grounded a special damages claim of €177,000.”    Following a cross-examination of Ahern, this claim for special damages in relation to care was removed from the submitted evidence. Moreover, reports from a nurse and an actuary were not entered into evidence. Bus Éireann argued that the conduct surrounding Ahern’s claim was considered to be false under section 26 of the Civil Liability and Courts Act, 2004, (the Act 2004), and so the claim should be dismissed.

The High Court judge of this case, Feeney J, held that the onus of demonstrating the application of section 26 of the Act 2004, on the facts of the case, rested with Bus Éireann. The High Court found that Bus Éireann did not provide sufficient evidence of false or misleading conduct from Ahern. Therefore, it dismissed their objections and awarded Ahern €25,000 of damages for her pain up to that date; and a further €15,000 for her pain in the future; which resulted in a total of €40,000. Bus Éireann chose to appeal this decision to the Supreme Court.

Holding of the Supreme Court
Denham CJ delivered the written judgment for the Supreme Court. This was the only written judgment because the other judges; Murray J, Hardiman J, Macken J, and Finnegan J, agreed with her decision. Similar to the High Court, the Supreme Court held that the onus of proof lay with the appellant because they had based their arguments on section 26 of the Act of 2004. Denham CJ addressed the two bases for Bus Éireann’s arguments to dismiss the claim awarded by the High Court to Ahern.

Section 26(1) of the Act of 2004
The first base of appeal relied upon section 26(1) of the Act of 2004, which requires proof that a person has dishonestly submitted evidence that is false or misleading, and that the person in question knows is false or misleading. Denham CJ held that on this base, the appeal would fail because of Fenney J’s opinion, as the High Court Judge, of Ahern to be an honest person. This is because the Supreme Court was bound by the established principle in Hay v O’Grady [1992] 1 IR 210, regarding the findings of trial judges. Hence, as Feeney J held her to be an honest person, this base for the appeal failed.

Denham CJ further dismissed this base as there was no proof that false or misleading evidence was submitted in the High Court. This is because reports from the nurse and actuary were not entered into evidence, nor did they provide oral evidence during the case. Moreover, the claim for special damages in regards to care was removed from the submitted evidence. Thus, there was no proof of the submission of false or misleading evidence to the High Court. Therefore, the first base of appeal was rejected.

Section 26(2) of the Act of 2004
The second base of appeal relied upon section 26(2) of the Act of 2004, which requires proof that a person has submitted an affidavit that is false or misleading, and that the person knows that the submitted affidavit is false or misleading. Denham CJ held that on this base, the appeal would fail because Ahern provided subjective evidence regarding the care she received from her children each week, and that she was accompanied by her neighbours when travelling. The hours of the care provided by her children were calculated and then described in a report which was not submitted as evidence, nor did the actuary who wrote the report provide oral evidence during the case. Therefore, this evidence does not apply to section 26(2) of the Act of 2004.

Furthermore, the Supreme Court upheld the finding of the High Court that Ahern was an honest person and did not knowingly submit false or misleading evidence, as it was understandable that Ahern would connect her loss of independence to the accident rather than her age and pre-existing medical history. This meant that the statement was not false or misleading as it was Ahern’s subjective belief that she required a carer following the accident. Hence, the Supreme Court upheld the finding of the High Court that Bus Éireann failed to provide proof of false or misleading conduct of Ahern and apply section 26(2) of the Act of 2004 to the case. Thus, the second case of appeal was rejected.

Conclusion
Therefore, the Supreme Court dismissed the appeal and affirmed the order of the High Court.