Hasnain Saqlain v The Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 20 July 2021
• Neutral Citation: [2021] IESC 45
• Docket Number: [Appeal Nos 32.21 33.21:]
• Year: 2021
• Court: Supreme Court

Between/

Hasnain Saqlain

Applicant/Appellant

and

The Governor of Cloverhill Prison

Respondent

Salman Shahzad

Applicant/Appellant

and

The Governor of Mountjoy Prison

Respondent

[2021] IESC 45

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

Baker J.

[Appeal Nos 32.21 33.21:]

THE SUPREME COURT

Unlawful detention – Art. 40 of the Constitution – Reference – Appellants seeking an inquiry into the lawfulness of their detention – Whether the Supreme Court should make a reference to the Court of Justice of the European Union

Facts: Both of these proceedings involved respective applications under Art. 40 of the Constitution seeking an inquiry into the lawfulness of the detention of the appellants, Mr Saqlain and Mr Shahzad, having regard to the suggestion that there was no valid legal basis for the continuance of the European Arrest Warrant system between Ireland and the United Kingdom. In Mr Shahzad’s case it was said that he should be prevented from raising these issues through the medium of an Art. 40 application when they could and, it was said, should have been raised in the course of the previous proceedings concerning his surrender. In Mr Saqlain’s case the trial judge found that these matters could not be raised in an Art. 40 application because the proceedings concerning his surrender were still in being so that the relevant points could be raised in the course of those proceedings. Ultimately the respective cases of Mr Shahzad and Mr Saqlain failed in the High Court. Appeals in both cases were heard together in the Supreme Court. Insofar as issues of European Union law arose, it was argued on behalf of both appellants that the Supreme Court should make a reference to the Court of Justice of the European Union (CJEU) under Art. 267 TFEU. That suggestion was resisted on behalf of the State.

Held by Clarke CJ that the Court should, in the unusual and exceptional circumstances, consider the issues of European Union law raised within the confines of these Art. 40 proceedings. In addition, Clarke CJ considered that a resolution of those question of European Union law, being as to whether either or both the Withdrawal Agreement and the Trade and Cooperation Agreement are binding on Ireland in the absence of an opt in by Ireland under Protocol No. 21, were necessary to the determination of whether the continued imprisonment of both Mr Shahzad and Mr Saqlain was lawful. Clarke CJ also concluded that the answers to those questions of European Union law were not clear within the meaning of the CILFIT jurisprudence (CILFIT and Lanificio di Gavardo SpA v Ministry of Health (Case 283/81) ECLI:EU:C:1982:335). In those circumstances, Clarke CJ proposed that the Court should refer questions concerning those matters to the CJEU. Clarke CJ held that separate questions should be asked in relation to, respectively, the Withdrawal Agreement and the Trade and Cooperation Agreement. Clarke CJ proposed that a draft reference be submitted to the parties no later than the 22 July and that the parties be given an opportunity to make such observations as they wish on the text no later than the 28 July.

Clarke CJ emphasised that the finalisation of the text of the reference, including the questions to be referred, was ultimately a matter for the Court. Clarke CJ held that, having considered any observations which may be received within the timeframe referred to, the Court would finalise the terms of the reference document and submit it to the CJEU. Clarke CJ held that, in light of the fact that both Mr Shahzad and Mr Saqlain were in prison, the Court would suggest to the CJEU that the urgent preliminary ruling procedure should be adopted in this case.

Referred to CJEU.

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 20 ^th of July, 2021.

1. Introduction

1.1 The departure of the United Kingdom from the European Union has given rise to many complications across disparate aspects of life. Legal issues arise in many such areas. These appeals are connected with one such area, being the consequences for the operation of the European Arrest Warrant system between those states which continue to be members of the European Union, on the one hand, and the United Kingdom, on the other.

1.2 There are potentially particular problems which arise in that context in respect of Ireland. The first is the purely practical consideration that, given proximity, there are many requests for surrender under the European Arrest Warrant system between Ireland and the United Kingdom. However, of particular relevance to these appeals, is the fact that Ireland is the subject of Protocol No. 21, annexed to the Treaty on European Union (“TEU”) and the Treaty on the Functioning of the European Union (“TFEU”), which provides for the reservation of sovereignty by Ireland in respect of the so-called Area for Security, Freedom and Justice (“ASFJ”).

1.3 The Protocol does provide a mechanism whereby Ireland can opt in to any measures within the ASFJ, either at the time when the measure in question is under consideration or at some later stage. The importance of the distinction between the timing of Ireland's opting in stems from the fact that, in cases where Ireland does not opt in at the time of the adoption of the relevant measure, Ireland does not have a right to participate in the adoption process.

1.4 While it will be necessary to address the measures adopted by the European Union in respect of the operation of the European Arrest Warrant system with the United Kingdom post-Brexit in due course, both the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2019] O.J. C384l/1 (“the Withdrawal Agreement”), which governed relations between the European Union and the United Kingdom during what has come to be known as a transition period between the departure of the United Kingdom from the European Union on February 1, 2020 and December 31, 2020, and the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community and the United Kingdom of Great Britain and Northern Ireland [2020] O.J. L444/14 (“the Trade and Cooperation Agreement”), which governed relations thereafter, provide for the continuance of the European Arrest Warrant system. It is accepted that Ireland did not exercise an opt in under Protocol No. 21 in relation to either of those measures. At the core of the case made both by Mr Saqlain and by Mr Shahzad is the contention that the European Union did not have competence to bind Ireland, in either the Withdrawal Agreement or the Trade and Cooperation Agreement, to measures within the ASFJ without Ireland having exercised such an opt in.

1.5 In addition, there is an issue dealt with in the High Court judgment in both cases concerning the question of whether these questions of European law properly arise in these proceedings. The underlying factual situation which gives rise to that contention in the case of the applicant/appellant in the first case (“Mr. Shahzad”) stems from the fact that, in the ordinary way, hearings were conducted before the High Court in relation to his surrender. During the hearing in question, the arguments now sought to be advanced on his behalf were not raised. Both of these proceedings involve respective applications under Art. 40 of the Constitution seeking an inquiry into the lawfulness of the detention of the appellants, having regard to the suggestion that there is no valid legal basis for the continuance of the European Arrest Warrant system between Ireland and the United Kingdom. In Mr. Shahzad's case it is said that he should now be prevented from raising these issues through the medium of an Art. 40 application when they could and, it is said, should have been raised in the course of the previous proceedings concerning his surrender. The position in respect of the applicant/appellant in the second case (“Mr. Saqlain”) is somewhat different. In his case the trial judge found that these matters could not be raised in an Art. 40 application because the proceedings concerning his surrender were still in being so that the relevant points could be raised in the course of those proceedings. Ultimately the respective cases of Mr. Shahzad and Mr. Saqlain failed in the High Court. Appeals in both cases were heard together in this Court.

1.6 Insofar as issues of European Union law arise, it is argued on behalf of both appellants that this Court should make a reference to the Court of Justice of the European Union (“CJEU”) under Art. 267 TFEU. That suggestion is resisted on behalf of the State.

1.7 It is first appropriate to briefly set out the facts.

2. The Facts

2.1 Mr. Shahzad and Mr. Saqlain are the subject of European Arrest Warrants (“EAWs”) seeking their surrender to the United Kingdom. On foot of the execution of both of these EAWs in the High Court, Mr. Shahzad and Mr. Saqlain were arrested and are now detained pending their surrender. In both of these proceedings the relevant applicant challenged the legality of their respective detentions on the basis that, in their submission, the EAWs under which they had been arrested were not lawfully executed as Ireland had not opted into the provisions of the Withdrawal Agreement and the Trade and Cooperation Agreement insofar as those agreements related to measures within the ASFJ, which, it was argued, means that the provisions of these agreements pertaining to surrender have no valid application to Ireland.

2.2 Mr. Shahzad is the subject of a EAW dated March 20, 2020 issued by a judicial authority of the United Kingdom, which seeks his surrender to the United Kingdom to serve a prison sentence of eight years. The EAW was endorsed for execution by the High Court under s. 13 of the European Arrest Warrant Act 2003 (“the 2003...