The Supreme Court has granted Thomas Joseph O’Connor leave to appeal in proceedings over his proposed surrender to the United Kingdom, finding that a novel European Union law issue raised by Brexit required consideration.
The Court was considering only an application for leave to appeal, not the merits of whether O’Connor should be surrendered. A previous surrender order had been affirmed, and the High Court had refused him a certificate to appeal to the Court of Appeal.
The Minister for Justice and Equality argued that surrender should be assessed under the law as it stood at the time: the UK remained an EU member and was a competent requesting state under the European arrest warrant regime. O’Connor argued that he might remain imprisoned in the UK after its planned departure from the EU on 29 March 2019, when the legal arrangements governing his EU rights and their enforcement would be uncertain.
The warrant sought his return to serve sentences imposed for conspiracy to cheat the public revenue and to face prosecution over an allegation that he absconded while on bail. The Court said it was highly probable he would remain imprisoned beyond the planned departure date if surrendered. It noted specific concerns raised about the rule of speciality and credit for time spent in custody under an earlier warrant, which had been found invalid.
The judges said O’Connor’s European law argument was not clearly stated in terms of specific treaty, Charter or legislative provisions. But they could not conclude that it was unstateable or that the Court of Justice of the European Union could not find that the Article 50 notice affected the basis for surrender where EU rights might not be guaranteed after the UK left the Union. The issue arose in the case, was necessary to determine it and was not acte clair, the Court held.
The Supreme Court therefore granted leave so it could consider a reference to the Court of Justice. It directed both sides to submit proposed wording by 7 February 2018 and scheduled a hearing of no more than 30 minutes for 13 February, solely to determine the questions to be referred. The judgment set out possible questions, including whether surrender should be declined generally or in particular circumstances, what criteria should apply, and whether a court could postpone a surrender decision while awaiting clarity about post-withdrawal arrangements.
The Court did not decide whether surrender should be refused or postponed, and the suggested questions were not finalised. It said it would consider the parties’ submissions before settling them.