The Supreme Court has ruled that a person already surrendered to another state under a European arrest warrant may raise fundamental rights objections when that state seeks consent to prosecute them for additional offences.
In a judgment delivered on 26 February 2015, the Court allowed Sylwester Jozef Strzelecki’s appeal on a preliminary legal issue and remitted the matter to the High Court for consideration in accordance with law. It did not decide whether his rights had been breached or whether consent to the further prosecutions should ultimately be refused.
Poland had sought Strzelecki’s surrender in 2010 for prosecution on seven drug trafficking offences. The High Court ordered his surrender in July 2012, and he was transferred to Poland. In December 2012, Poland requested consent to prosecute him for two further drug trafficking type offences that were not covered by the original European arrest warrant.
The High Court held that Strzelecki could not rely on section 37 of the European Arrest Warrant Act 2003, as amended, or raise human rights objections at the consent hearing. It then granted consent to the further prosecutions. Strzelecki appealed that preliminary ruling.
The Supreme Court held that section 22(8) of the Act refers to Part 3, which includes section 37’s grounds for prohibiting surrender. It said a request to prosecute a person already surrendered for additional offences is, in substance, a request for the surrender to cover those offences. The High Court therefore erred in excluding section 37 and fundamental rights arguments from consideration.
The ruling allows such objections to be raised and considered; it does not require a court to uphold them or refuse consent. The Supreme Court said established case law remains applicable, and a court may determine that rights issues should be litigated in the requesting state. It also noted that mutual confidence between EU member states informs the application of section 37, and that differences in constitutional principles will not necessarily justify refusing a request.
The case returns to the High Court to be considered under the correct legal approach.