Minister for Justice and Equality v O'Connor

• Jurisdiction: Ireland
• Judge: Reference
• Judgment Date: 12 March 2018
• Neutral Citation: [2018] IESC 19
• Docket Number: Appeal No. 131 of 2017
• Court: Supreme Court
• Date: 12 March 2018

In the matter of the European Arrest Warrant Act 2003 (As amended)

And

In the matter of Thomas Joseph O'Connor

Between/

The Minister for Justice and Equality

Applicant/Respondent

And

Thomas Joseph O'Connor

Respondent/Appellant

[2018] IESC 19

Appeal No. 131 of 2017

THE SUPREME COURT

European arrest warrants – Brexit – Referral – Appellant seeking to contest his surrender on foot of a European arrest warrant – Whether the surrender of the appellant was illegal by reason of the Brexit issue

Facts: The UK issued a European arrest warrant on the 13th June 2011 seeking the surrender of the respondent/appellant, Mr O’Connor. The warrant was endorsed by the High Court for execution in Ireland’s jurisdiction on the 22nd June 2011 in accordance with national law. Mr O’Connor commenced constitutional proceedings in which it was contended that the form of legal aid provided in Ireland was insufficient to meet the guarantee of equality before the law, as required by Article 40.1 of the Constitution of Ireland. In addition, Mr O’Connor contested his surrender on foot of the relevant European arrest warrant within the normal procedures provided in that regard by national law. The Supreme Court ultimately dismissed his appeals on the 30th March 2017. At Mr O’Connor’s request, his surrender was postponed for humanitarian reasons, but on the 5th May 2017 Mr O’Connor sought to re-open the question of the legality of his surrender by reason of the Brexit issue. The High Court ultimately determined that the Brexit point did not prevent Mr O’Connor’s surrender and, on the 25th July 2017, determined that he should, therefore, be surrendered. From that decision Mr O’Connor was given, having regard to the importance and urgency of the issue raised, leave to appeal directly to the Supreme Court.

Held by the Supreme Court that it proposed to refer the following questions to the Court of Justice of the EU: (1) Having regard to (a) the giving by the UK of notice under Article 50 of the TEU, (b) the uncertainty as to the arrangements which will be put in place between the EU and the UK to govern relations after the departure of the UK, and (c) the consequential uncertainty as to the extent to which Mr O’Connor would, in practice, be able to enjoy rights under the Treaties, the Charter or relevant legislation should he be surrendered to the UK and remain incarcerated after the departure of the UK, is a requested Member State required by EU Law to decline to surrender to the UK a person the subject of a European arrest warrant, whose surrender would otherwise be required under the national law of the Member State, (i) in all cases? (ii) in some cases, having regard to the particular circumstances of the case? (iii) in no cases? (2) If the answer to Question 1 is that set out at (ii) what are the criteria or considerations which a court in the requested Member State must assess to determine whether surrender is prohibited? (3) In the context of Question 2 is the court of the requested Member State required to postpone the final decision on the execution of the European arrest warrant to await greater clarity about the relevant legal regime which is to be put in place after the withdrawal of the relevant requesting Member State from the Union, (i) in all cases? (ii) in some cases, having regard to the particular circumstances of the case? (iii) in no cases? (4) If the answer to Question 3 is that set out at (ii) what are the criteria or considerations which a court in the requested Member State must assess to determine whether it is required to postpone the final decision on the execution of the European arrest warrant?

The Supreme Court requested that the Court of Justice consider determining the case pursuant to the expedited procedure set out in Article 105(1) of the Court’s Rules of Procedure.

Referral to the Court of Justice of the EU.

Judgment and Order of Reference dated the 12th day of March 2018

1. Introduction

1.1 The Supreme Court has decided to refer to the Court of Justice questions arising out of the impact, if any, on the operation of the system of European arrest warrants, arising from the fact that the United Kingdom of Great Britain and Northern Ireland has given notice under Article 50 of the Treaty on European Union (‘TEU’) of its intention to withdraw from the European Union (‘Brexit’).

1.2 In essence, the issue which has arisen before the Supreme Court gives rise to a question which has not been considered before by reason of the fact that no member state has, to date, withdrawn from the Union. The question concerns the impact of legal measures adopted within the framework of Union law which have the potential of impacting on the rights and obligations of citizens of the Union beyond the anticipated date of withdrawal of a member state in circumstances where those rights may fall in practice to be enforced solely within the legal order of the departing member state.

1.3 The Supreme Court notes the many decisions of the Court of Justice which establish that the Union is based on the rule of law and in particular the provisions of Article 19 TEU which entrusts the responsibility of ensuring judicial review in the Union legal order not only to the Court of Justice but also to national courts. (See most recently case C – 64/16 Associação Sindical dos Juízes Portugueses, Article 267 TFEU and the obligation to refer identified in the CILFIT jurisprudence). On that basis, it is arguable that, when taken in conjunction with Article 267 TFEU, the rule of law in the European context includes the entitlement of a person who enjoys rights or entitlements under Union law to have any issue arising as to the proper interpretation of those rights and entitlements, insofar as they may impact on that person's situation, ultimately determined, in any case of doubt, by the Court of Justice.

1.4 In those circumstances, the issue which arises concerns whether European law (whether to be found in the Treaties or the Charter) contains a necessary implication that otherwise valid measures mandated by Union law should not be adopted where those measures create a risk of placing a person affected by the measures concerned outside the scope of the effective application of rights and entitlements guaranteed by Union law, and in particular the entitlement to request the Court of Justice to rule definitively on any issues of Union law which may arise concerning such rights and entitlements.

2. The Facts

2.1 A European arrest warrant was issued on the 13th June 2011 by the United Kingdom seeking the surrender of the respondent/appellant (‘Mr. O'Connor’). This warrant was endorsed by the High Court for execution in this jurisdiction on the 22nd June 2011 in accordance with national law. There had been a previous warrant seeking Mr. O'Connor's surrender on substantially the same basis. However, for reasons not now relevant, surrender on foot of that warrant did not occur.

2.2 Mr. O'Connor commenced constitutional proceedings in which it was contended that the form of legal aid provided in Ireland was insufficient to meet the guarantee of equality before the law, as required by Article 40.1 of the Constitution of Ireland. In addition, Mr. O'Connor contested his surrender on foot of the relevant European arrest warrant within the normal procedures provided in that regard by national law. Each of the two strands of his proceedings failed so that the Supreme Court ultimately dismissed his appeals on the 30th March 2017.

2.3 At Mr. O'Connor's request, his surrender was postponed for humanitarian reasons, but on the 5th May 2017 Mr. O'Connor...