MJE v Buckley: Article 38, right to a fair trial, does not apply extraterritorially

handcuffs-in-EU-logoUnder s 37 of the European Arrest Warrant Act 2003 (here), a person cannot be surrendered where it would be incompatible with the State’s obligations under the ECHR, or where it would contravene any article of the Constitution. In this case, the Court was asked can a defence of an apprehended breach of Article 38, right to a fair trial, be raised to an extradition request? And secondly, do the rules of evidence applying to the prosecution of conspiracy in England breach Article 38?

MacMenamin J (here) answered both questions in the negative.


In 2013, the UK authorities issued an EU extradition warrant request for Buckley. He was wanted to face prosecution in England on charges of criminal conspiracy and for the design and manufacture of pipe bombs. In the High Court, Buckley raised a defence that the English rules of evidence in relation to conspiracy allowed the admission of evidence at trial which would be prohibited in an Irish court under Article 38. And that his surrender should therefore be refused under s 37 of the 2003 Act. Edwards J (here) ordered his surrender but certified two questions of exceptional public importance for consideration by the Supreme Court:

(1) Does the right to a fair trial, guaranteed by Article 38 of the Constitution, have application beyond the national territory? Specifically, is it permissible for a respondent to an application for surrender to raise an apprehended breach of Article 38 as an objection to surrender under s.37 of the European Arrest Warrant Act, 2003?

(2) Having regard to the comments of Walsh J. in Ellis v. O’Dea [1989] I.R. 530, and the evidential rules that apply to the prosecution of conspiracy in England, would the surrender of the respondent amount to a breach of s.37 of the European Arrest Warrant Act, 2003?

Supreme Court

Buckley argued that s 74 of the United Kingdom Police & Criminal Evidence Act 1984  would allow the prosecutor to introduce evidence that another person has been convicted for their part in the conspiracy for which he is accused, and that Article 38 would prohibit the introduction of such evidence in an Irish court. Therefore his surrender is prohibited under s 37 of the 2003 Act.

However, MacMenamin J found that s 74 of the 1984 Act provides that such information can be admitted as evidence–it is not proof of guilt. That the 2003 Act contains a presumption that an EU state issuing an extradition request will comply with the Framework Agreement, unless the contrary is proven. Therefore there will be safeguards in place to guarantee a fair trial.

In relation to the first question, citing Murray J from Minister for Justice, Equality & Law Reform v Brennan [2007] 3 IR 732 and O’Donnell J from Nottinghamshire County Council v B(K) [2011] IESC 48, he concluded that there is no authority to the effect that Article 38 should operate in an extra-territorial fashion. But although he said that that situation may warrant consideration if it was established that there was a fundamental defect in the requesting state’s legal system [22], he answered the first question in the negative [25].

On the second question, MacMenamin J held that, as the comments of Walsh J in Ellis were obiter, as the case applied to the Extradition Act of 1965 not the 2003 Act and as the Framework Decision provides extensive protection, the context of those comments differs from this case. Because Buckley had not demonstrated that the prosecution would introduce evidence as provided for in s 74 of the 1984 Act, and as he had not demonstrated that if it did the trial procedure would not contain safeguards to guarantee a fair trial, he also answered the second question in the negative.



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