Salman Shahzad v The Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Coffey
• Judgment Date: 19 March 2021
• Neutral Citation: [2021] IEHC 209
• Date: 19 March 2021
• Docket Number: [2021 No. 225 SS]
• Court: High Court

In the Matter of an Inquiry Pursuant to Article 40.4.2° of the Constitution of Ireland

Between

Salman Shahzad

Applicant

and

The Governor of Mountjoy Prison

Respondent

[2021] IEHC 209

[2021 No. 225 SS]

THE HIGH COURT

Unlawful detention – Application for release – Surrender – Applicant seeking release – Whether the applicant’s detention was lawful

Facts: The applicant, Mr Shahzad, was the subject of a European arrest warrant (the EAW) dated 20 March 2020 issued by a judicial authority in the United Kingdom of Great Britain and Northern Ireland (the UK) which sought his surrender to the UK in order to execute a sentence of imprisonment for a term of eight years which was imposed upon him in respect of an offence of conspiracy to defraud, all of which remained to be served. On 8 February 2020 the High Court (Burns J) made an order for the applicant’s surrender to the UK pursuant to s. 16(1) of the European Arrest Warrant Act 2003 (as amended) and a consequent committal order pursuant to s. 16(4)(b) detaining him in prison pending his surrender. On 16 February 2021 the Court directed an inquiry pursuant to Article 40.4.2° of the Constitution into the legality of the applicant’s detention upon the grounds set out in the affidavit of complaint sworn by the applicant’s solicitor on 15 February 2021. The applicant’s case was that the High Court did not have power to surrender or detain the applicant pending his surrender to the UK because its ostensible power to do so under national law ultimately derived such legal force as it had from the provisions of Article 62.1(b) of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2019] O.J. C384l/1 (the Withdrawal Agreement) which the applicant contended is a measure in the area of freedom, security and justice which is subject to Article 2 of Protocol No. 21 (the Protocol) annexed to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) whereunder, it was argued, such measures are not binding on or applicable in Ireland unless the State has opted into the relevant measure, which it has not done. The application for release was opposed by the respondent, the Governor of Mountjoy Prison. First, the respondent contended that the application was an impermissible collateral attack on the order of surrender by reason of the fact that the applicant could have but failed to raise the point upon which he sought to rely in the s. 16 proceedings. Secondly, the respondent contended that the Protocol is of no application to the Withdrawal Agreement by reason of the fact that the Withdrawal Agreement is on its face an agreement that was concluded pursuant to Article 50 TEU whereunder, it was argued, the Union has an exceptional and exclusive competence to negotiate and conclude an agreement with the departing Member State which covers all issues relating to the separation including issues that would otherwise lie outside the exclusive competencies of the Union.

Held by Coffey J that Article 62.1(b) of the Withdrawal Agreement has its legal basis in Article 50 TEU to which the Protocol does not apply. Coffey J held that, as Article 62.1(b) is therefore binding on and applicable to Ireland, it follows that it is “necessary” to apply s. 98(1) of the Withdrawal of the United Kingdom from the European Union (Consequential) Provisions Act 2019 to the construction of s. 2 and s. 3 of the 2003 Act in consequence of which S.I. 719/2020 European Arrest Warrant Act 2003 (Designated Member States) (Amendment) Order 2020 has legal efficacy to apply the provisions of the 2003 Act to the UK in the manner as therein provided so that the surrender and detention orders made by the High Court on the 8th of February were lawful and valid.

Coffey J held that the applicant’s detention was lawful and refused the relief sought.

Relief refused.

JUDGMENT of Mr. Justice Paul Coffey delivered on the 19th day of March 2021.

Background

1 This case concerns extradition between Ireland and the United Kingdom of Great Britain and Northern Ireland (“the UK”) pursuant to Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States [2002] O.J. L190/1 (“the Framework Decision”) which was transposed into Irish law by the European Arrest Warrant Act 2003 (as amended) (“the EAW Act of 2003”) and the effect thereon, if any, of Article 62.1(b) of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2019] O.J. C384l/1 (“the Withdrawal Agreement”). The Withdrawal Agreement sets out the arrangements for the withdrawal of the UK from the European Union (“the Union”) and from the European Atomic Energy Community (“Euratom”). It came into force on 1 February 2020 and provides for a transition or implementation period which started on the date of entry into force of the Agreement and ended on 31 December 2020. Article 127(1) of the Withdrawal Agreement makes EU law, including therefore the Framework Decision, applicable to and in the UK during the transition period. In order to make provision for cases that were still in the system at the end of the transition period, Article 62.1(b) of the Withdrawal Agreement applies the Framework Decision to the UK in respect of European arrest warrants where the requested person was arrested before the end of the transition period for the purposes of the execution of a European arrest warrant irrespective of whether that person was remanded in custody or released on bail. At issue on this application is whether Article 62.1(b) of the Withdrawal Agreement is binding on and applicable to Ireland.

Introduction

2 The applicant is the subject of a European arrest warrant (“the EAW”) dated 20 March 2020 issued by a judicial authority in the UK which seeks the surrender of the respondent to the UK in order to execute a sentence of imprisonment for a term of eight years which was imposed upon him in respect of an offence of conspiracy to defraud, all of which remains to be served. The EAW was endorsed for execution within the State by the High Court pursuant to s.13 of the Act of 2003 on the 18 August 2020 following which the applicant was arrested and brought before the High Court on 9 September 2020. On 8 February 2020 the High Court (Burns J.) made an order for the applicant's surrender to the UK pursuant to s.16(1) of the Act of 2003 and a consequent committal order pursuant to s.16(4)(b) detaining him in prison pending his surrender.

3 It is common case that as the UK had ceased to be a Member State of the EU on 1 February 2020 and had further ceased to be subject to the general application of Union law on 31 December 2020, such power and obligation as the High Court had to surrender and detain the applicant on 8 February, if any, arose under Article 62.1(b) of the Withdrawal Agreement to which ostensible domestic effect was given by S.I. 719/2020 European Arrest Warrant Act 2003 (Designated Member States) (Amendment) Order 2020 (“ S.I. No. 719 of 2020”) and s.98(1) of the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2019.

4 Article 62.1(b) of the Withdrawal Agreement provides as follows:

“(b) Council Framework Decision 2002/584/JHA shall apply in respect of European Arrest Warrants where the requested person was arrested before the end of the transition period for the purposes of the execution of a European arrest warrant, irrespective of the decision of the executing judicial authority as to whether the requested person is to remain in detention or be provisionally released;”

5 S.3 of the EAWAct 2003 provides that the Minister for Foreign Affairs may, by order, designate “a Member State” that has, under its national law, given effect to the Framework Decision. “Member State” is defined by s.2 of the Act of 2003 as “a Member State of the European Communities”. Section 98(1) of the Withdrawal of the United Kingdom from the European Union (Consequential) Provisions Act 2019 (“the Act of 2019”) anticipates a withdrawal agreement and provides that:-

“(1) Where, immediately before the coming into operation of this part, a reference in an enactment to a Member State included a reference to the United Kingdom by virtue of that State being a Member State of the European Communities (emphasis added)…then, on the coming into operation of this Part, the reference to the enactment shall, insofar as is necessary to give effect to the terms of a withdrawal agreement, (emphasis added), continue to include a reference to the United Kingdom.”

6 The European Arrest Warrant Act 2003 (Designated Member States) Order 2004 (S.I. No. 4 of 2004) designated the UK for the purposes of s.3 of the EAW Act of 2003. Article 3 of S.I. No. 719 of 2020 amended the previous Order of 2004 by the insertion of the following provisions:-

“2A(1) The United Kingdom of Great Britain and Northern Ireland is, in respect of a European Arrest Warrant that satisfies the condition specified in paragraph (2), designated for the purposes of the European arrest warrant Act 2003 (No. 45 of 2000).

(2) In relation to a European arrest warrant, the conditions referred to in paragraph (1) are –

• (a) that the European arrest warrant has been issued by a judicial authority in the United Kingdom of Great Britain and Northern Ireland, and

• (b) that the person in respect of whom the European arrest warrant is issued is arrested before 11:00pm on the 31st day of December 2020 for the purposes of the execution of the European arrest warrant.”

7 On 16 February 2021 this Court directed an inquiry pursuant to Article 40.4.2° of the Constitution into the legality of the applicant's detention upon the...