Minister for Justice and Equality v O'Connor

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 09 October 2018
• Neutral Citation: [2018] IESC 47
• Docket Number: 2011 297 EXT
• Court: Supreme Court
• Date: 09 October 2018

[2018] IESC 47

THE SUPREME COURT

Clarke C.J.

Clarke C.J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

2011 297 EXT

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

European arrest warrant – Surrender– Brexit – Appellant seeking to have a previous order providing for his surrender to the United Kingdom vacated – Whether it was necessary for the Supreme Court to seek answers to questions raised in a reference already sent to the CJEU

Facts: The respondent/appellant, Mr O’Connor, brought an application seeking to have a previous order providing for his surrender to the United Kingdom vacated on the basis of an argument which derived from the United Kingdom’s imminent departure from the European Union (Brexit). The Supreme Court considered that it was appropriate to refer certain questions of European law to the Court of Justice of the European Union (CJEU) under the provisions of Article 267 of the Treaty on the Functioning of the European Union. The Supreme Court requested that the preliminary reference be dealt with by the CJEU under the urgent preliminary ruling procedure (PPU procedure). The CJEU did not accede to that request. A different case involving a similar issue came before the High Court in circumstances where the person concerned was in custody. In those proceedings the High Court judge (Donnelly J) was persuaded that she too should refer almost identical questions to the Court of Justice in order to enable her to resolve the case in question (Minister for Justice, Equality and Law Reform v. R.O. [2018] 2 I.L.R.M. 199). The High Court also requested that this reference be dealt with under the PPU procedure, on the basis of para. 4 of Article 267 TFEU. The CJEU decided to grant the request that the reference be dealt with under the urgent procedure. The Court of Justice gave judgment in that case (R.O. (Case C-327/18 PPU) EU:C:2018:733). The answers given were unfavourable to the case made on behalf of Mr R.O. to the effect that his surrender should not take place by virtue of the impending Brexit. Against that background an issue arose as to whether, in the view of the Supreme Court, it continued to be necessary to obtain the answers sought from the CJEU in these proceedings in order to resolve the issue before the Court. This judgment was directed to that question. Mr O’Connor argued that the Court of Justice was wrong in the decision which it made in R.O. or, alternatively, that R.O. could not be said to provide a definitive determination of the legal issues concerned, having regard to the fact that certain arguments which were sought to be put forward on behalf of Mr O’Connor were not considered by the CJEU or, if considered, were not determined in the judgment of that Court. On that basis, it was argued that the Supreme Court should allow the reference in these proceedings to go ahead in the ordinary way so as to enable Mr O’Connor to make an argument to the effect that the Court of Justice should revisit the issue.

Held by the Supreme Court (Clarke CJ) that it was not satisfied that it continued to be necessary for it to continue to seek the answers to the questions raised in the reference already sent to the CJEU.

Clarke CJ held that the Court should respond to the letter from the CJEU by enclosing a copy of this judgment and indicating that, in the view of the Court, the questions which the Court had sought that the CJEU should answer in these proceedings have in fact been answered by the judgment of the CJEU in R.O. Clarke CJ proposed that this matter be put in for mention in approximately four weeks’ time on the understanding that, unless Mr O’Connor pursues the issues concerned by making further immediate submissions to the CJEU inviting it to remove the stay and continue with this reference, notwithstanding the views of the Supreme Court and notwithstanding the decision of the CJEU in R.O., and unless the prospect of the CJEU re-opening the questions raised and answered in R.O. remains alive, the Supreme Court would consider whether it should dismiss Mr O’Connor’s application and re-affirm the order for surrender already made.

Other.

Judgment delivered by the Chief Justice, Mr. Justice Clarke , on the 9th October 2018

1. Introduction

1.1 The lengthy previous history of these European Arrest Warrant proceedings is set out in a number of previous judgments of this Court ( Minister for Justice and Equality v. O'Connor [2017] IESC 21; [2017] IESC 48 and [2018] IESC 3). As appears from the most recent of those judgments, an application was brought on behalf of the Respondent/Appellant (‘Mr. O'Connor’) seeking to have a previous order providing for his surrender to the United Kingdom vacated on the basis of an argument which derived from the United Kingdom's imminent departure from the European Union (‘Brexit’). For the reasons set out in that judgment, this Court considered that it was appropriate to refer certain questions of European law to the Court of Justice of the European Union (‘CJEU’) under the provisions of Article 267 of the Treaty on the Functioning of the European Union. In that judgment, this Court also made reference to the fact that there were a number of cases in the High Court which were held up pending the decision of this Court in relation to the application. That fact, coupled with the potential impact of the case on other areas of the law and indeed on international relations, led this Court to request that the preliminary reference be dealt with by the CJEU under the urgent preliminary ruling procedure (‘PPU procedure’). The CJEU did not accede to that request.

1.2 However, in the meantime, a different case involving at least a similar issue came before the High Court in circumstances where, unlike the case of Mr. O'Connor, the person concerned was in custody. In those proceedings the High Court judge (Donnelly J.) was persuaded that she too should refer almost identical questions to the Court of Justice in order to enable her to resolve the case in question ( Minister for Justice, Equality and Law Reform v. R.O. [2018] 2 I.L.R.M. 199). The High Court also requested that this reference be dealt with under the PPU procedure, on the basis of para. 4 of Article 267 TFEU which refers to the CJEU's obligation to act ‘with the minimum of delay’ in respect of a preliminary reference concerning a person in custody. The CJEU decided to grant the request that the reference be dealt with under the urgent procedure.

1.3 The Court of Justice has recently given judgment in that case (R.O. ( Case C-327/18 PPU) EU:C:2018:733). In substance, the answers given were unfavourable to the case made on behalf of Mr. R.O. to the effect that his surrender should not take place by virtue of the impending Brexit.

1.4 Against that background an issue has now arisen as to whether, in the view of this Court, it continues to be necessary to obtain the answers sought from the CJEU in these proceedings in order to resolve the issue currently before this Court. This judgment is directed to that question.

2. Recent Procedural History

2.1 As noted above, in the present case the request made by this Court to the CJEU to have the reference dealt with under the PPU procedure was refused, whereas in the R.O. case that request was granted. That being so, a stay was placed on the current reference by the President of the CJEU until the Court had delivered its decision in R.O. Following the delivery of that decision, the CJEU contacted this Court by letter dated the 21st September 2018, to inquire as to whether it was intended to maintain the preliminary reference in the present case. In that context, it should be noted that Mr. O'Connor's solicitors contacted the Registry of the CJEU in response to the judgment of the Court in R.O., in effect stating that there were significant differences between the case made on behalf of R.O. and those which Mr. O'Connor would seek to advance, as well as suggesting alleged...