New Appeal: Re force majeure under s 16 of the European Arrest Warrant Act 2003

In this determination, Minister for Justice & Equality v Skiba, the Supreme Court granted Skiba leave to appeal against the Court of Appeal’s decision to allow his surrender (already completed) to the Republic of Poland. Although the Court determined that an appeal would be largely moot, it allowed an appeal on the question:

was the Court of Appeal correct in its determination of the law applicable in the case of the applicant, in light of the subsequent decision of the Court of Justice in Vilken Case 640/15?

 

Background

The Polish authorities requested Skiba’s surrender under a European arrest warrant to serve a sentence of imprisonment. The High Court granted the order. The Irish and Polish authorities arranged for Skiba’s transfer on a commercial flight. Skiba’s solicitor informed the State authorities by phone that Skiba had a fear of flying. At the airport, Skiba refused to pass the departure gate. Due to the commotion, the captain of the plane refused to allow Skiba to board.

Afterwards, the Minister applied to the High Court under s 16(5) of the European Arrest Warrant Act 2003 for a second order for transfer, on grounds that the first was not executed because of circumstances beyond the State’s control. S 16(5) provides:

Where a person is brought before the High Court subject to ss. (4)(c) the High Court shall:

(a) if satisfied because of circumstances beyond the control of the State, or the issuing state concerned, the person was not surrendered within the time for surrender under ss. (3)(A), or, as the case may be, will not be so surrendered:
(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and

(ii) order that the person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution), for a period not exceeding 10 days after the date fixed under sub-paragraph (1) pending the surrender, and
(b) in any other case order that the person be discharged.

 

The High Court granted the Minister’s request. And the Court of Appeal (here) dismissed Skiba’s appeal. The CoA held that the solicitor’s phone call was not sufficient to make it reasonably foreseeable, for the purposes of the 2003 Act, that Skiba would refuse to board the flight.

The State executed Skiba’s surrender to Poland in January 2017. Since then the Court of Justice of the European Union responded to a reference by the High Court in a case with comparable facts. (The CJEU named the case Vilkas, the Supreme Court names the case Vilken). Here, the CJEU held that:

55.  Therefore, so far as concerns the concept of force majeure as provided for in Article 23(3) of the Framework Decision, it is necessary to take account of the general scheme and the purpose of the Framework Decision in order to interpret and apply the constituent elements of force majeure, as derived from the Court’s case-law (see, by analogy, judgment of 18 December 2007, Société Pipeline Méditerranée et Rhône, C‑314/06, EU:C:2007:817, paragraph 26).

56.  In that regard, it is to be recalled that Article 23(3) of the Framework Decision constitutes an exception to the rule laid down in Article 23(2). Accordingly, the concept of force majeure as provided for in Article 23(3) must be interpreted strictly (see, by analogy, judgments of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraphs 24 and 25, and of 18 July 2013, Eurofit, C‑99/12, EU:C:2013:487, paragraph 37).

57.  Furthermore, it is apparent from the wording of Article 23(3) of the Framework Decision that the occurrence of a case of force majeure can justify extending the period for surrendering the requested person only in so far as that case of force majeure means that his surrender within the period laid down is ‘prevented’. The mere fact that his surrender is simply made more difficult cannot therefore justify application of the rule set out in the first sentence of that provision.

 

The Supreme Court determined that, although Skiba had already been surrendered to Poland, any even though he has not challenged the legality of his detention there, the CJEU decision in Vilkas warrants any appeal on the question:

was the Court of Appeal correct in its determination of the law applicable in the case of the applicant, in light of the subsequent decision of the Court of Justice in Vilken Case 640/15?

Advertisements
Leave a comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: