Minister for Justice and Equality v O'Connor

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 25 July 2017
• Neutral Citation: [2017] IEHC 518
• Court: High Court
• Docket Number: Record No. 2011 No. 297 EXT
• Date: 25 July 2017

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

THOMAS JOSEPH O'CONNOR

RESPONDENT

AND

-BY ORDER-

THE MINISTER FOR FOREIGN AFFAIRS AND TRADE

NOTICE PARTY

[2017] IEHC 518

Record No. 2011 No. 297 EXT

THE HIGH COURT

Extradition – The European Arrest Warrant Act, 2003 – Execution of European Arrest Warrant by the United Kingdom – Effect of Brexit on surrender – Violation of 2002 Framework Decision – Art. 50 of the Treaty on European Union

Facts: The surrender of the respondent was requested by the requesting state (United Kingdom/'U.K.') on foot of the execution of the European Arrest Warrant ('EAW') in order to serve a sentence of imprisonment for the offence of conspiracy to cheat public revenue. The Supreme Court, on appeal, had already made an order for the surrender of the respondent. The respondent had now lodged an objection that his surrender was prohibited by virtue of notification by the U.K. under art. 50 of the Treaty on European Union of its intention to leave the European Union (E.U.). The respondent argued that in the event of the U.K. leaving the E.U., the 2002 Framework Decisions would become inapplicable and the status of the respondent, as a prisoner, would become uncertain.

Ms. Justice Donnelly held that the decision of the Supreme Court for the surrender of the respondent would stand. The Court noted that recital 11 of the 2002 Framework Decision stated that in case a member state left the E.U., a new system of extradition would be put in place. The Court observed that it was bound to act on the presumption of mutual trust and confidence as laid down under s. 4A of the EAW Act, 2003 that the issuing judicial authority would comply with the requirements of the 2002 Framework Decision. The Court rejected the plea advanced by the respondent that the withdrawal of the first EAW and the issuance of the second EAW amounted to an abuse of process of law. The Court held that the said withdrawal was made after the decision of the Supreme Court in the Minister for Justice, Equality and Law Reform v. Tighe [2010] IESC 61 case and the second EAW was drawn up to address the points raised by the Supreme Court in that case.

JUDGMENT of Ms. Justice Donnelly delivered the 25th day of July, 2017.

1 A European Arrest Warrant ('EAW') was issued on 13th June, 2011 by a judicial authority in the United Kingdom of Great Britain and Northern Ireland ('the U.K.') seeking the surrender of the respondent to serve a sentence imposed upon him in respect of two offences of conspiracy to cheat the public revenue. He is also sought for prosecution for an offence of breaching bail. His surrender was ordered by the High Court (Edwards J.) on 28th January, 2015 pursuant to s. 16 of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003'). Following the dismissal of the respondent's appeal to the Court of Appeal and then to the Supreme Court, the order of surrender was affirmed by a unanimous Supreme Court on 30th March, 2017 (See Minister for Justice and Equality v. O'Connor [2017] IESC 21).

2 Subsequent to that decision of the Supreme Court the respondent launched a succession of legal actions with the objective of preventing his surrender. These actions are grounded upon two main arguments. The first is that, by virtue of the notification by the U.K. under Article 50 of the Treaty on European Union ('TEU') of her intention to leave the European Union ('E.U.'), the respondent's surrender is prohibited (hereinafter referred to as 'the Brexit point'). The second general ground is that, in light of the manner in which the proceedings had unfolded, the respondent is entitled to reopen all matters which had formed his original points of objection. The second ground encompasses the two original objections to surrender in his points of objection; a point about legal aid and an abuse of process point.

3 The only ground that the respondent argued in the course of the hearing of the application for his surrender before Edwards J. was the legal aid point. In the present hearing, the respondent submitted that, arising from the treatment by these courts of his previous argument concerning the issue of legal aid, he was entitled to re-litigate that matter. The respondent also submitted that, because he did not advance the abuse of process point on the basis that his legal aid point might be held to be moot if he did, he should now be entitled to argue that abuse of process point.

4 In the aftermath of the Supreme Court decision of 30th March, 2017 rejecting his appeal, the respondent issued both habeas corpus proceedings and plenary proceedings challenging his surrender. The earlier history of those proceedings are set out in a Supreme Court ruling of 3rd July, 2017 which dismissed an application by the respondent to re-enter the case in the Supreme Court (see Minister for Justice and Equality v. O'Connor [2017] IESC 48). That Supreme Court judgment is considered in more detail later.

5 This present hearing came on before the High Court in circumstances where the minister accepted, having given an similar indication to the Supreme Court in the case of Minister for Justice, Equality and Law Reform v. Wharrie [2016] IESC 63, that the Brexit point could be raised before the High Court as it had arisen after the order for the respondent's surrender was made but before his actual surrender. There was an initial disagreement between the parties as to the extent of the minister's concession, but the respondent now accepts that the minister only conceded that the applicant should have the right to raise the Brexit point before the High Court in the context of the s. 16 surrender proceedings.

The Brexit Point

6 The evidence relied upon by the respondent in this case is contained in an opinion of Helen Malcolm QC of the Bar of England and Wales. She is a Queen's Counsel, Recorder of the Crown Court and Deputy High Court Judge practising in Gray's Inns, London. She specialises in extradition law and white collar crime and has a particular interest in European criminal law. Her expertise in the area is not in question.

7 Ms. Malcolm was asked to comment on 'the effect of Brexit now, on existing extradition arrangements with the United Kingdom under the EAW provisions; and on the effect of Brexit looking into the future'. She was asked in particular to look at the issues as to whether the rights that the respondent enjoyed when his surrender was ordered would still exist and/or will still be enforceable after Brexit. She gave her opinion that giving allowance for the maximum licence period, the respondent 'will still be in prison when the UK leaves the EU on 29th March, 2019'.

8 Ms. Malcolm said that any person returned within the E.U. on the basis of an EAW request potentially has the benefit of four protections from four different sources. These are as follows:

(a) The benefit of safeguards enshrined in the domestic law of the executing state (she deferred to experts in Irish law but she suggested that Brexit would have no effect upon the domestic law of Ireland);

(b) The benefit upon return of safeguards to be found in the domestic law of the issuing state. According to Ms. Malcolm, Brexit will not, at least in the first instance, alter domestic legislation (whether under the Extradition Act, 2003 or otherwise) in the United Kingdom;

(c) Insofar as they are different or additional, the benefit of safeguards within the Council (EC) Framework Decision of 13th June, 2002; (2002/584/JHA) on the European Arrest Warrant and the surrender procedures between Member States ('2002 Framework Decision'), and;

(d) The overarching benefit of safeguards under the European Convention on Human Rights ('ECHR').

9 Ms. Malcolm states that any further discussion must be prefaced with various warnings, including that nothing has yet been agreed as regards the U.K. and the European Union. Ms. Malcolm then indicated that the best that could be done, as no transitional provisions had yet been published and nothing had been agreed, was to glean an indication of the U.K. government's intended negotiating position on the EAW from the various pronouncements made to date.

10 Ms. Malcolm referred thereafter to parliamentary research and briefing papers. She also referred to government statements and in particular the U.K. Prime Minister's twelve principles to 'guide the Government in fulfilling the democratic will of the people'. She stated that one of those was cooperating in the fight against crime and terrorism and that the Prime Minister said that she wanted the future relationship with the E.U. to include practical arrangements on matters of law enforcement and the sharing of intelligence matters with the U.K.'s allies. Ms. Malcolm also referred to the European perspective and the fact that the European Council and European Parliament were insisting that Brexit be negotiated first, followed by negotiations on future relations between the U.K. and the European Union. The Permanent Secretary to the Home Office had indicated that there could be complications for existing EAWs if the U.K. was forced to leave the E.U. before negotiating a surrender agreement as a third country.

11 In respect of the matter at hand, Ms. Malcolm said that it was not easy to give an opinion on the likely effect/outcome of Brexit in relation to extradition in the current state of uncertainty. She said that the U.K. government was acutely aware of the concerns expressed by law enforcement experts. She opined that even if there is a bespoke arrangement for extraditions with the U.K., there is the risk that this will not necessarily allow individuals their right to take (an equivalent of) a preliminary reference to the Court of Justice of the European Union ('CJEU'). She says that the preliminary reference procedure is a new one in the U.K. (presumably she means...