The High Court has ruled that it can examine whether a person sought for prosecution under a European Arrest Warrant should remain in custody, even when that person has not applied for bail.
In a judgment delivered on 1 June 2018, Ms Justice Donnelly said the court’s duty to protect the right to liberty allowed it to begin a bail inquiry on its own motion. She found no legal provision preventing the High Court from exercising that power in a surrender case.
The respondent, identified in the judgment as T. M., was arrested on 3 May 2017 under a warrant issued by a UK judicial authority. He had not sought bail through either his former or current legal representatives. His case had been adjourned while a separate Supreme Court reference to the Court of Justice of the European Union concerning Brexit and surrender procedures remained pending.
The Minister for Justice and Equality argued that a person in custody had to apply for bail and that, without an application, the court’s role was limited to remanding the person in custody. The respondent’s counsel said the jurisdiction question was for the court but made no further submissions, and confirmed that no bail application was being pursued.
Justice Donnelly rejected the Minister’s position. She relied on the High Court’s inherent jurisdiction to grant bail, its constitutional responsibility to protect liberty, and the European arrest warrant legislation, which allows the court to remand a person in custody or on bail. She also considered the Court of Justice ruling in *Lanigan*, which requires a concrete review of detention and its duration in relevant circumstances. A simple question about whether a person wants to apply for bail would not meet that standard, she said.
The judgment did not grant bail or order the respondent’s release. It decided only that the High Court had jurisdiction to inquire whether he should continue to be remanded in custody. Justice Donnelly said the inquiry must follow fair procedures, including giving the Minister an opportunity to present evidence or submissions against bail. She then directed that the Minister be heard on the grounds for refusing bail.