MJ&E v O’Connor: Brexit poses no substantial risk to deprevation of rights to warrant refusal of extradition

In this judgment, Minister for Justice and Equality v O’Connor, the Supreme Court held that O’Connor did not establish that Brexit posed any real risk that any of his rights would not be respected if he was surrendered under a European Arrest Warrant to the United Kingdom.

 

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.

The Court proposed the following draft questions:

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?

 

The Court requested that the CJEU fast track this case. The CJEU declined that request. However, the High Court made a reference with almost identical questions, where the application was in continued detention, Minister for Justice, Equality and Law Reform v. R.O. [2018] 2 I.L.R.M. 199. In that case the CJEU acceded to the request for an expedited hearing. And it delivered judgment in that case in September (here).

The Court held that, in RO, the CJEU had provided answers to the questions it referenced in this case, citing specifically from para 62:

In the absence of substantial grounds to believe that the person who is the subject of that European arrest warrant is at risk of being deprived of rights recognised by the Charter and the Framework Decision following the withdrawal from the European Union of the issuing Member State, the executing Member State cannot refuse to execute that European arrest warrant while the issuing Member State remains a member of the European Union.

O’Connor argues that, due to the expedited case hearing in RO, the CJEU decided the case incorrectly, failed to consider different arguments he wanted to raise, or did not adequately consider or address those alternative arguments.

The Supreme Court stated it would withhold lifting the stay on O’Connor’s surrender for four weeks from the  judgment date, October 9. That time is to allow O’Connor to persuade the CJEU to re-open the questions decided in RO. Otherwise, the stay on his surrender will be lifted after those four weeks.

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