New Appeal: Does Brexit prohibit surrender of an EU citizen to the UK under an EU arrest warrant?

In this judgment, Minister for Justice v O’Connor, the Supreme Court granted O’Connor leave for a leapfrog appeal from the High Court. As a preliminary issue, the Court decided to make a reference to the Court of Justice of the European Union. The Court proposed a draft question:

 

Having regard to:

(1) (a) The giving by the United Kingdom of notice under Article 50 of the TEU;

(b) The uncertainty as to the arrangements which will be put in place between the European Union and the United Kingdom to govern relations after the departure of the United Kingdom; and

(c) The consequential uncertainty as to the extent to which Mr. O’Connor would, in practice, be able to enjoy rights under the Treaties, the Charter or relevant legislation, should he be surrendered to the United Kingdom and remain incarcerated after the departure of the United Kingdom.

Is a requested state required to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be permitted, either

(i) in all cases?

(ii) having regard to the particular circumstances of the case? or

(iii) in no cases?

(2) If the answer to Q. 2 is that set out at (ii) what are the criteria or considerations which a court in the requested member state must assess to determine whether surrender is required?

(3) In the context of Q. 2, can the Court of a requested member state postpone the finalisation of a request for surrender to await greater clarity about the relevant legal regime which is to be put in place after the withdrawal of the relevant requesting member state from the Union?

 

Background

In 2006 Blackfriars Crown Court convicted O’Connor on two counts of tax fraud and released him on bail pending sentencing. When he did not attend court for sentencing, the judge sentenced him, in his absence, to two concurrent sentences of four years and six months.

In 2011 the UK issued a European arrest warrant seeking O’Connor’s surrender from this jurisdiction. The High Court endorsed that warrant. Gardai arrested O’Connor, and the High Court granted the Minister an order for O’Connor’s surrender. The Supreme Court granted O’Connor leave to appeal on an issue of the provision of legal aid (post). When that appeal was unsuccessful, the case returned to the High Court.

O’Connor then objected to his surrender on grounds that, as the United Kingdom had triggered the Brexit process, his rights as an EU citizen could not be guaranteed after March 2019. The High Court rejected that argument (here) and refused to grant a certificate for an appeal to the Court of Appeal. O’Connor applied for leave to appeal to the Supreme Court.

Generally applications for leave to appeal to the Supreme Court are determined on written submissions by three judges. In this case, the Court convened an extended panel and heard oral submissions from the parties.

O’Connor opposed the Minister’s intention to surrender him to the United Kingdom in circumstances where it may not be within the jurisdiction of the CJEU post Brexit and where rights accruing to him under the Charter of Fundamental rights may not be capable of enforcement.

The Court accepted that this is an issue of general public importance (there are 20 similar cases pending). The Court also determined that the case met the constitutional threshold of involving exceptional circumstances for a leapfrog appeal, as the High Court had refused a certificate to appeal to the Court of Appeal.

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