The Court of Appeal has dismissed an appeal by W.B. against an order for his surrender to Sweden to face prosecution for an alleged rape, rejecting his claim that Sweden’s pre-trial detention system made surrender unlawful.
The judgment, delivered by Mr Justice Edwards on 21 November 2016, concerned a European arrest warrant issued at Sweden’s request. The High Court had ordered W.B.’s surrender in January 2016. It certified a point of law of exceptional public importance for appeal: whether Sweden’s rule that a person suspected on probable cause of a serious crime remains in custody unless detention is obviously unnecessary, alongside a weighing of competing interests, amounted to an egregious human rights violation requiring surrender to be refused.
W.B. argued that the Swedish test effectively presumed against release and placed a high burden on an accused person to establish that detention was unnecessary. He relied on evidence that release before trial was uncommon in serious cases and particularly rare for people not resident in Sweden. The Minister for Justice and Equality argued that the Swedish system did allow release, including with travel or reporting restrictions, and that Irish courts could not re-examine the Swedish court’s assessment of the case-specific risks.
The Court of Appeal said the Irish courts were bound by the findings of the Attunda District Court on flight risk and possible interference with witnesses. It said they had no entitlement to review the substance of that domestic decision. The Swedish court’s November 2014 remand order recorded that W.B. had not attended the hearing, and that the court found risks of absconding and obstructing the investigation. W.B. had not appealed that detention order in Sweden.
On the European Convention claim, the Court of Appeal concluded that the evidence did not show that Sweden’s remand system flagrantly disregarded Article 5 rights. It noted that Swedish law allowed release, required consideration of less restrictive measures and required a weighing of the suspect’s detriment against the need for detention. The court also observed that W.B. would be able to raise his Convention rights before Swedish courts.
The court separately rejected the constitutional claim under section 37(1)(b) of the European Arrest Warrant Act. It accepted that Swedish courts give substantial weight to perceived risks of flight and witness interference in serious cases, and that an accused seeking release may face a high evidential burden. But it held that this did not establish a legal presumption that detention was necessary or a fundamental defect requiring refusal of surrender.
The appeal was dismissed. The court answered the certified question in the negative; it did not determine W.B.’s guilt or order his surrender anew in this judgment.