Minister for Justice v McArdle; MJ&E v Brunell: Court refuses to make preliminary reference under acte clair doctrine

handcuffs-in-EU-logoHere, citing Cilfit (the acte clair doctrine), Denham CJ refused the Appellants’ request that the Court make a preliminary reference to the European Court of Justice on whether the Council Framework Decision on the European Arrest Warrant system permits a public prosecutor, who is personally involved in the investigation of an offence, to issue an arrest warrant as an “independent judicial authority”.

She stated that, due to the principles of mutual respect and co-operation in the operation of the European arrest warrant scheme “[t]here is a presumption that when a European arrest warrant is issued, and stated to be issued, by a public prosecutor or judge of a Member State acting as the judicial authority designated by the Member State, he or she is the judicial authority within the meaning of the Framework Decision and the Act implementing it”.

Background

The Kingdom of the Netherlands issued a European arrest warrant request for McArdle and Brunell for the purposes of prosecuting them for the murder and dismembering of an Irish citizen (Keith Ennis) in Amsterdam in 2009. The warrants were issued by a public prosecutor from the Public Prosecutor’s Office in Amsterdam. The High Court (Edwards J) ordered the surrenders. Both appealed to the Supreme Court.

Supreme Court

Denham CJ outlined one issue (among others) as being whether the Framework Decision requires independent judicial scrutiny of a decision to issue a warrant–McArdle argued that the Public Prosecutor was not independent and sought a preliminary reference to the ECJ:

Is Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States to be interpreted as permitting a public prosecutor, who is personally involved in the investigation of an offence, to issue a European Arrest Warrant in respect of that offence where it has not been established that the underlying enforceable judgment, arrest warrant or other enforceable judicial decision having the same effect was issued by an independent judicial authority.

Citing Cilfit, Case 283/81 [1982] E.C.R 3415, (the acte clair doctrine) Denham CJ refused to make the proposed preliminary reference, as the meaning of the Directive is clear. Article 6.1 states: “The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State“. Citing Fennelly J in Dundon v Govenor of Cloverhill Prison [2006] 1 IR 518, she stated that the definition of judicial authority in the 2003 Act is broad and should be interpreted as far as possible in light of the wording and purpose of Framework Decision to achieve the result it pursues. And the status of the public prosecutor in the Netherlands is designated by the national legal system of that State.

She stated that, due to the principles of mutual respect and co-operation in the operation of the European arrest warrant scheme (Article 1) “[t]here is a presumption that when a European arrest warrant is issued, and stated to be issued, by a public prosecutor or judge of a Member State acting as the judicial authority designated by the Member State, he or she is the judicial authority within the meaning of the Framework Decision and the Act implementing it” (Article 6) [51]. Also, due to the principle of mutual respect, there is a presumption that the national legal system of the issuing Member State provides adequate safeguards and remedies. As the appellants did not rebut that presumption, the Court dismissed the appeals.

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