Minister for Justice v O'Connor

• Jurisdiction: Ireland
• Judge: the Chief Justice
• Judgment Date: 01 February 2018
• Neutral Citation: [2018] IESC 3
• Court: Supreme Court
• Date: 01 February 2018

[2018] IESC 3

THE SUPREME COURT

Clarke C. J.

Clarke C. J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

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

And

European arrest warrant - European law - Constitutional threshold - Appellant seeking leave to appeal to the Supreme Court - Whether an issue of European law arose in this case

Facts: The respondent/appellant, Mr O' Connor, was the subject of a request from the UK for his surrender to that country on foot of a European arrest warrant. Mr O'Connor sought leave to appeal to the Supreme Court from the 25th July, 2017 High Court decision of Donnelly J which had the effect of affirming a previous order for surrender made by Edwards J, which previous order had been affirmed by the Supreme Court. The central issue asserted on behalf of Mr O'Connor as meeting the constitutional threshold for leave to appeal was described as "the Brexit point". It was submitted that Brexit gave rise to a situation where Mr O' Connor, as a citizen of the EU, would be surrendered to another jurisdiction in circumstances where there was a risk that he would be required to serve a period of imprisonment and thus be detained beyond the time when the UK remains a member of the Union. It was said that the rights which Mr O'Connor might otherwise enjoy as an EU citizen, having been surrendered to another EU jurisdiction on foot of the European arrest warrant regime, would no longer be capable of enforcement by him at least as matters of European law. On that basis, it was argued that his surrender was no longer legally permissible.

Held by Clarke CJ that the threshold identified in theSrl CILFIT and Lanificio di Gavardo SpA v Ministry of Health(Case 283/81) [1982] ECR 3415jurisprudence, which establishes the obligation on a court of final appeal of a member state to refer an issue to the Court of Justice, was a low threshold but one which must be faithfully applied by the courts which are governed by it. The Court was, therefore, satisfied that an issue of European law did arise which was necessary to determine the proceedings and that it was, therefore, necessary that the Court grant leave to appeal in order that it might refer that issue to the Court of Justice.

Clarke CJ held that the Court would grant leave to appeal but would set out very specific and highly expedited procedures to determine the questions to be referred to the Court of Justice. In aid of that process, the Court set out one possible version of the text of the questions which might be referred to the Court of Justice. However, the Court emphasised that it would consider the submissions of the parties before finalising those questions.

Application granted.

Judgment of the Court delivered by the Chief Justice on the 1st February 2018

1. Introduction

1.1 There must be no one in Ireland who is not by now aware that there may potentially be significant complications arising in a whole range of areas as a result of Brexit. This application concerns one such potential issue. The respondent/appellant ('Mr. O' Connor') was the subject of a request from the United Kingdom for his surrender to that country on foot of a European arrest warrant. The lengthy history of the attempts to thus secure Mr. O'Connor's surrender to the United Kingdom is fully set out in the High Court judgment in this matter delivered by Donnelly J. on the 25th July, 2017 ( Minister for Justice and Equality v. O'Connor [2017] IEHC 518). Mr. O'Connor has sought leave to appeal to this Court from the decision of Donnelly J. which had the effect of affirming, for the reasons set out in that judgment, a previous order for surrender made by Edwards J., which previous order had been affirmed by this Court. Thus, the net consequence of the decision of the High Court was that Mr. O'Connor should be surrendered.

1.2 In accordance with the Court's normal practice in respect of applications for leave to appeal, the notice of application filed on behalf of Mr. O'Connor and the respondent's notice filed on behalf of the applicant/respondent ('the Minister') will be published along with this judgment.

1.3 As appears from those notices, the central issue asserted on behalf of Mr. O'Connor as meeting the constitutional threshold for leave to appeal is what is described as 'the Brexit point'. Put at its simplest, it is argued that an issue arises on this potential appeal concerning the effect or potential effect of Brexit on this European arrest warrant proceeding such that the constitutional threshold for leave to appeal to this Court is met.

1.4 It will be necessary to say something more about what is meant by the Brexit point in due course. However, it is said that the fact that the United Kingdom has given notification under Article 50 of the Treaty on European Union ('TEU'), so as to lead to the departure of the United Kingdom from the Union, gives rise to a situation where Mr. O' Connor, as a citizen of the European Union, will be surrendered to another jurisdiction in circumstances where there is a risk that he will be required to serve a period of imprisonment and thus be detained beyond the time when the United Kingdom remains a member of the Union. The notification in question was given on the 29th March, 2017, by means of a letter from the Prime Minister of the United Kingdom to the President of the European Council. The effect of that notification is to cause the United Kingdom to withdraw from the European Union (in accordance with the provisions of Article 50 of the TEU) as of the 29th March, 2019. In those circumstances it is said that the rights which Mr. O'Connor might otherwise enjoy as a European Union citizen, having been surrendered to another European Union jurisdiction on foot of the European arrest warrant regime, will no longer be capable of enforcement by him at least as matters of European law. On that basis, it is argued that his surrender is no longer legally permissible.

1.5 As already noted, the Court is currently concerned only with an application for leave to appeal.

2. The Application for Leave to Appeal

2.1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and some judgments and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Pricewaterhousecoopers (a firm) v. Quinn Insurance Limited (Under Administration) [2017] IESC 73. As this is an application for leave to appeal directly from the High Court, the additional criteria required to be met in order that a so-called 'leapfrog appeal' direct to this Court can be permitted also need to be taken into account. Those criteria were addressed, again by a full panel of the Court, in Wansboro v. Director of Public Prosecutions [2017] IESCDET 115. However, it should be noted that the Court in Wansboro indicated that it was not in that determination dealing with the sub-category of potential leapfrog appeals which have come to be described as appeals in 'certificate' cases.

2.2 In that context, it should be noted that Mr. O'Connor sought the certificate which would have been required to appeal the decision of Donnelly J., to which reference has already been made, to the Court of Appeal. That application was refused for the reasons set out in an ex tempore judgment of Donnelly J. delivered on the 28th July, 2017 (Unreported, High Court, Donnelly J., 28th July, 2017). It follows that the only route available to Mr. O'Connor is to seek leave to bring a 'leapfrog' appeal to this Court. On the other hand, as the Court has pointed out on a number of occasions (see, for example, Grace & anor v. An Bord Pleanála & ors [2016] IESCDET 29), a party, who satisfies this Court that they meet the general constitutional threshold by establishing that their appeal raises an issue of general public importance or that it is in the interests of justice that there be an appeal to this Court, may well be able to establish the additional exceptional circumstances required to justify a direct appeal to this Court if they have no other means of pursuing the issues which the Court is satisfied meet the general constitutional threshold. In the context of the refusal of a certificate by the High Court in this case it should, however, be reiterated, as this Court pointed out in its judgment in Grace, that the threshold or test by reference to which a certificate is to be given by a High Court judge in a case such as this is different than the threshold which this Court is required to apply. This Court will always consider the reasons given by the High Court for refusing a certificate. However, even if this Court comes to a different conclusion on the question of whether leave to appeal should be granted by it, it does not follow that this Court necessarily disagreed with the High Court judge who refused a certificate precisely because that High Court judge was required, by law, to apply a different though clearly related test.

2.3 In any event, it is possible that there may be circumstances where it would not necessarily follow that, in such a certificate case, 'leapfrog' leave would have to be allowed where the general constitutional threshold is met but a certificate is refused by the High Court. However, it seems clear that, in the circumstances of this case, it would be appropriate to allow an appeal to this Court if the...