The Supreme Court has referred a question to the European Court of Justice regarding British extradition, following the challenge of an arrest warrant by an Irishman.

Mr Thomas Joseph O’Connor, from Cloughbeirne, Roscommon, was sentenced in Blackfriars Crown Court in 2007 to four and a half years in prison for his role in a £5 million tax fraud. At the time of the sentencing, Mr O’Connor was not present, and was subsequently charged with absconding and breaching bail conditions. Upon returning to Ireland he was arrested under a European arrest warrant.

Mr O’Connor then challenged this warrant on the basis that his rights could be violated due to the UK’s decision to leave the EU by March 2019. He has argued that his rights as an EU citizen will not be enforceable under EU law if he is extradited and also that the legal framework surrounding his potential detention is at significant risk. Essentially if Mr O’Connor is surrendered to the UK then it is very likely that his prison sentence will run beyond the proposed date for Britain officially exiting the EU. This will most likely affect the laws surrounding arrest of foreign citizens and whether they can be fairly applied.

Counsel for Mr O’Connor argued that Mr O’Connor’s surrender is impossible as there is still insufficient clarity about the post-Brexit regime. Meanwhile counsel for the Minister for Justice claimed that the correct approach was to focus on the current state of the law and that hypothetical questions were irrelevant to proceedings. Chief Justice Frank Clarke eventually concluded that the issues raised by Mr O’Connor were not unstateable. He stated in his judgement ‘Furthermore, it is also the case that the precise consequences for Mr. O’Connor are equally unclear. What will happen to him if he is surrendered to the United Kingdom, the legal regime which will apply to him in those circumstances and many other matters are not clear at this stage and are unlikely to become clear for some period of time.’ The Chief Justice then commented that as no prior case of equivalent circumstances existed, this was a novel point of EU law and must be referred to the CJEU.

The Supreme Court also remarked that it was aware that the principles advanced in this case would undoubtedly affect other areas of law. It was also very mindful of the fact that there are currently 20 other High Court extradition cases which will be affected by the CJEU’s ruling. Thus the Court recommended that the reference to the CJEU be handled in a ‘most expeditious’ manner. A short hearing will take place on the 13th of February where the Court will decide the final version of the questions to be referred. The Supreme Court will hear submissions from both sides concerning on the matter.

Daniel Forde – Law Editor