MJE v Sean Walsh

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 07 March 2024
• Neutral Citation: [2024] IESC 9
• Court: Supreme Court
• Docket Number: Supreme Court Record No: S:AP:IE:2022:000129

In the Matter of the European Arrest Warrant Act 2003 (As Amended)

And in the Matter of Seán Walsh

Between

The Minister for Justice & Equality

Appellant

and

Seán Walsh

Respondent

[2024] IESC 9

O'Donnell C.J.

Charleton J.

Baker J.

Woulfe J.

Hogan J.

Collins J.

Donnelly J.

Supreme Court Record No: S:AP:IE:2022:000129

High Court Record No. 2021 330 EXT

THE SUPREME COURT

JUDGMENT of Ms. Justice Baker delivered on the 7th of March 2024 .

1 . This is the appeal of Seán Walsh (“the appellant”) from the order of Biggs J. made on 24 October 2022 ( [2022] IEHC 633) by which she acceded to the request for his surrender to the United Kingdom pursuant to a warrant issued under the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (“ TCA”).

2 . It is proposed that the applicant be charged with terrorism offences and, should he be convicted and sentenced to a term of imprisonment, his entitlement to be released on licence will fall to be governed by UK legislation enacted in 2021, after the offences in question are alleged to have been committed. The retrospective application of those legislative changes was found by the Northern Ireland Court of Appeal in R v. Morgan [2021] NICA 67 to be incompatible with Article 7 of the European Convention of Human Rights (“the Convention”), but that decision was reversed on appeal to the Supreme Court of the United Kingdom ( Morgan and ors. v. Ministry of Justice (Northern Ireland) [2023] UKSC 14; [2024] A.C. 130). The decisions in the Morgan cases concerned the application of the new provisions for early release in respect of persons who had been convicted and sentenced before the commencement of the 2021 legislation.

3 . In the High Court, the appellant objected to surrender on two grounds. First, that he faced a real risk of subjection to covert surveillance of his legal consultations and phone calls were he to be detained in prison in Northern Ireland, in breach of Article 38.1 and 40.3.1° of the Constitution, Articles 6 and 8 of the Convention, and Article 49 of the Charter of Fundamental Rights of the European Union (“the Charter”). Leave to appeal was not granted in respect of this ground.

4 . Leave to appeal was granted on 26 January 2023 ( [2023] IESCDET 3) on the second ground of objection to surrender, that concerning Article 38.1 of the Constitution, Article 7 of the Convention, and Article 49 of the Charter.

5 . In its Determination, the Court characterised the issue as:

“Whether it would be a breach of Article 38 of the Constitution for Mr Walsh to be returned to Northern Ireland to face charges arising from events in 2021 where the law governing the remission of his sentence has changed in a manner which was potentially averse to his interests.” (para. 12)

6 . This Court further observed the potentially close connection between the constitutional question and that arising under Article 7 of the Convention and, while noting the normal rule that any issue concerning the Convention should be addressed in the courts of the requesting State, gave leave to argue the question in relation to the Convention.

7 . The core question in the appeal is if surrender of the appellant is permitted having regard to arguments raised concerning the compatibility of the retrospective application of the amended sentencing regime with Article 7 of the Convention and Article 49 of the Charter.

Background

8 . Four warrants of arrest were issued by the District Judge of the Magistrates' Courts of Northern Ireland on 26 November 2021 in respect of four offences: the offence of membership of a proscribed organisation; the offence of directing the activities of an organisation concerned in the commission of acts of terrorism; the offence of conspiracy to direct the activities of an organisation concerned with the commission of acts of terrorism; and the offence of preparing to commit acts of terrorism. The UK-EU Surrender Warrant indicated the maximum length of the custodial sentence which may be imposed for the offences. In respect of the first-listed offence a term of imprisonment not exceeding 10 years can be imposed upon conviction on indictment, and for the remaining three offences, a term of imprisonment for life upon conviction on indictment. The offences are alleged to have been committed between 18 July 2020 and 20 July 2020.

9 . Legislative changes to the regime permitting release on licence were made by the Terrorist Offenders (Restriction of Early Release) Act 2020 and Article 20A of the Criminal Justice (Northern Ireland) Order 2008, as inserted by s. 30 of the Counter Terrorism and Sentencing Act 2021. These changes became operative in respect of Northern Ireland from 30 April 2021. The result of the changes was that a person convicted of certain terrorism-type offences would no longer be entitled to automatic release on licence at the halfway point in their sentence but would have to serve a minimum of two thirds before release on licence could be permitted. Further, unlike under the previous regime, the release on licence would have to be first approved by the Parole Commissioners.

10 . In R v. Morgan & Ors. a challenge to the legislation was brought by four persons, each of whom had already been sentenced when the legislative changes were made, who argued that the imposition on them of the new legislative regime means they would suffer a harsher penalty, and that they had a legitimate expectation to be treated under the regime applicable at the time of the commission of the offence or of the imposition of sentence.

11 . The Court of Appeal of Northern Ireland held that, in light of the fact that the appellants had already been sentenced under the old regime when the changes were made, the application of the new law was a retrospective imposition of penalty amounting to a modification or redefinition of the penalty imposed by the trial judge, and was therefore repugnant to Article 7 of the Convention. The Court granted a declaration of incompatibility, but in the light of the role the Convention plays in the operation and effect of legislation in Northern Ireland, the Court refused to make any order that the amending legislation was invalid or unenforceable.

12 . Following the decision of the Court of Appeal, one of the four applicants, a Mr Heaney, brought a further application for leave to apply for judicial review and interim relief seeking relief which would give rise to his release from prison. This culminated in the decision of Scoffield J. in Re Heaney [2022] NIQB 8, refusing relief.

13 . The Supreme Court of the United Kingdom granted leave to appeal against the judgment of the Court of Appeal of Northern Ireland, and in its judgment delivered on 19 April 2023, that Court allowed the appeal by the Minister of Justice and set aside the declaration of incompatibility. The Court found that the retrospective application of s. 30 of the Counter Terrorism and Sentencing Act 2021 is not incompatible with Article 5 and Article 7 of the Convention.

14 . The UK Supreme Court (Lord Stephens of Creevyloughgare, with whom the other members of the Court agreed), considered that there was no retroactive increase in the penalty, and what had changed was “the way in which the lawfully prescribed determinate custodial sentences imposed on the respondents are to be executed” (para. 116). Consequently, the legislative changes were outside the concept of “law” in Article 7 (para. 117), and did not breach the requirements of Article 5, including the requirement of foreseeability (paras. 128–129)

The High Court Judgment

15 . The UK Supreme Court had not delivered its judgment on the appeal in Morgan at the time the trial judge, Biggs J., delivered her judgment in the High Court.

16 . Biggs J. rejected the argument that surrender could risk a breach of Mr Walsh's rights under Article 7 of the Convention, and she distinguished the judgment of the Court of Appeal of Northern Ireland in Morgan, on the basis that it was relevant and probably determinative, that, unlike the appellants in Morgan, Mr Walsh had not yet been convicted or sentenced.

17 . She reached that conclusion in the light of s. 37(1)(a) of the European Arrest Warrant Act 2003 (“the Act of 2003”) which obliges the requested state to assess whether the requesting state is likely to comply with its own obligations under the Convention. She relied on the judgment of this Court in Minister for Justice v. Balmer [2016] IESC 25 [2017] 3 I.R. 562. (“ Balmer”) and found that there was no real risk and “no concrete evidence” that the United Kingdom of Great Britain and Northern Ireland would not comply with its obligations under the Convention.

18 . She distinguished the High Court decision in Minister for Justice and Equality v. Nolan [2012] IEHC 249 (upheld on appeal [2013] IESC 54), where surrender had been refused on the basis that it was the “particular and unusual circumstances of that case” which prohibited surrender as a consequence of a breach of s. 37(1)(a) of the Act of 2003 (para. 63(h)).

19 . Biggs J. characterised the constitutional test as whether a direct consequence of surrender, had it occurred in Ireland, would be so egregious as to amount to a breach of Irish constitutional guarantees (para. 63(m)). She found that there was no “fundamental defect in the system of justice in the UK and Northern Ireland” to justify refusal of surrender (para. 63(n)).

20 . The issues in this appeal principally concern Article 7 of the Convention, and the corresponding Article 49 of the Charter. In oral argument, the appellant conceded that no argument arose under the Constitution, in the light of the consistent application of the statement in Minister for Justice and Equality v....