The High Court refused Belgium’s requests to surrender Noel McPhillips and Caron Hatherley, finding that no decision had yet been made to charge and try them. The court held that surrender was prohibited by section 21A of the European Arrest Warrant Act 2003.
The two applications concerned European arrest warrants dated 5 March 2018. Belgium sought the respondents’ surrender for criminal prosecution over alleged aggravated thefts and alleged membership of a criminal organisation. The judgment, delivered by Mr Justice Binchy on 8 April 2020, dealt with both applications together because the warrants and objections were in identical terms.
The respondents’ principal objection was that surrender would be for investigative detention rather than to pursue a prosecution already intended. In response to questions from the Irish central authority, the Belgian investigating judge said that, after surrender, police would question each respondent in detail and the investigating judge would question them again. The judge also said the decision whether to charge and try would be taken later by the public prosecutor, after the investigation had closed.
The High Court considered the Supreme Court’s decision in *Minister for Justice, Equality and Law Reform v Thomas Olsson*. That decision explained that an arrest warrant may be for the purpose of prosecution even where a further procedural step is required, but a warrant is insufficient where prosecution depends on an investigation producing enough evidence and no present intention to prosecute exists.
Justice Binchy found that the Belgian investigation remained active in a meaningful way. The further information showed that the decision whether to charge and try would arise only at a later stage, if at all, and that detailed questioning would follow surrender. The court concluded that this evidence rebutted the statutory presumption that a decision to charge or try had been made.
The court therefore refused both surrender applications under section 21A. It did not determine the respondents’ other objections, which were not pursued at the hearing. The judgment also records that a previous, identical request had been refused by Westminster Magistrates’ Court in October 2018; that was a prior decision, not the basis of the High Court’s ruling.