The Supreme Court has said it is no longer satisfied that it needs to pursue a European Court of Justice reference in Thomas Joseph O’Connor’s challenge to his surrender to the United Kingdom over Brexit. It proposed giving him about four weeks to make further submissions to the EU court before considering whether to dismiss his application and reaffirm the surrender order already made.
The judgment, delivered by Chief Justice Frank Clarke on 9 October 2018, addresses whether the Supreme Court should maintain questions it had referred to the Court of Justice of the European Union (CJEU). Those questions concerned whether the UK’s planned departure from the EU affected the order for O’Connor’s surrender.
The CJEU had refused an urgent procedure for O’Connor’s reference, which was then stayed pending its decision in a separate case, Minister for Justice and Equality v R.O. In that case, the CJEU answered substantially identical questions and held that notice of a state’s intention to leave the EU does not, by itself, require another member state to refuse or postpone executing a European arrest warrant.
O’Connor argued that the CJEU’s decision in R.O. was wrong or did not settle the issues in his case because arguments he wished to make had not been considered or determined. He sought to continue with the reference so the CJEU could revisit the issue. His lawyers had also previously asked the Supreme Court to have the two references joined; the court declined to take steps that might delay the R.O. proceedings, where the person was in custody.
Chief Justice Clarke said a theoretical possibility that rights could be impaired was not enough to displace the obligation to surrender. The potential Brexit-related concerns identified for O’Connor were the rule on specialty and credit for time served in prison. The judgment said those matters had been raised with UK authorities in the R.O. proceedings, and the CJEU had received answers that satisfied it there was no real risk of a rights breach.
The court said it was highly unlikely the CJEU would answer the substantially identical questions differently, while recognising that the EU court could consider whether to reopen them. It proposed sending the CJEU a copy of the judgment and saying that, in the Supreme Court’s view, R.O. had answered the questions.
No final decision dismissing O’Connor’s application or reaffirming the surrender order was made in this judgment. The court proposed listing the matter for mention in about four weeks. It said it would consider those steps if O’Connor did not make immediate further submissions to the CJEU and the prospect of that court reopening the questions was no longer live.