The Supreme Court has referred questions to the Court of Justice of the European Union about whether Brexit could affect the surrender of a man to the United Kingdom under a European arrest warrant. It also asked the EU court to deal with the reference under its expedited procedure.
The court’s judgment and order of reference, dated 12 March 2018, records that the warrant was issued by the UK on 13 June 2011 and endorsed by the High Court for execution in Ireland on 22 June 2011. The High Court later ruled that the Brexit issue did not prevent surrender and ordered it on 25 July 2017. The Supreme Court had granted a direct appeal because of the issue’s importance and urgency.
Earlier challenges to surrender, apart from the Brexit argument, had failed. The Supreme Court said the Brexit issue was the only matter remaining in the appeal. The Minister for Justice and Equality argued that Irish law required surrender and that the law should be considered as it stood at the time. O’Connor argued that he might remain imprisoned in the UK after its scheduled withdrawal from the EU, when the arrangements governing relevant EU rights and remedies were uncertain.
The warrant sought surrender both to serve sentences imposed in the UK for two tax fraud offences and to face prosecution for allegedly failing, without reasonable cause, to surrender to the Crown Court while on bail. The judgment records that O’Connor was convicted on 26 October 2006 and sentenced on 29 January 2007 to concurrent terms of four and six years. He was not in custody when the Supreme Court considered the reference.
The Supreme Court said it could not rule out that EU law might prevent surrender, or that a court might need to assess whether there was a real risk of prejudice to O’Connor’s rights. It framed questions asking whether surrender must be refused in all, some or no cases; what criteria should apply if the answer depended on the circumstances; and whether a court should postpone a final surrender decision while the post-withdrawal legal arrangements remained unclear.
The reference did not resolve those questions or determine whether O’Connor should be surrendered. The Supreme Court asked the Court of Justice to consider an expedited procedure, citing the number of UK warrants received in Ireland and other pending cases where Brexit had been raised. It noted that six such cases were before the High Court and that some involved people in custody.