The Court of Appeal has directed the High Court to inquire into the lawfulness of Francis Lanigan’s detention after a stay removed a statutory safeguard requiring him to be brought back before the court if he was not surrendered within the prescribed period. The appellate court did not decide whether his detention was unlawful; it ordered an inquiry into that question.
In a judgment delivered on 19 October 2016, Mr Justice Michael Peart addressed two appeals concerning refusals to direct inquiries under Article 40.4 of the Constitution. Mr Lanigan had been detained under an order connected with a European arrest warrant seeking his surrender to Northern Ireland to face prosecution for murder and possession of a firearm arising from alleged offences in May 1988.
The first appeal challenged Mr Justice Barrett’s refusal to order an inquiry into Mr Lanigan’s detention. Mr Lanigan argued that constitutional challenges to the European Arrest Warrant process should be determined before surrender, and that his detention was unlawful because the High Court had made the surrender order without waiting for those proceedings. The Court of Appeal dismissed that appeal, agreeing that the Article 40.4 application did not establish that his detention under the committal order was unlawful. It said the Article 40 process could not be used to delay surrender while other claims were pursued.
The second appeal concerned a later stay granted by Mr Justice Butler. The stay paused both the surrender order and the requirement under section 16(4)(c) of the European Arrest Warrant Act, as amended, to bring Mr Lanigan before the High Court if surrender did not take place within the statutory period. Mr Lanigan argued that suspending that requirement removed a protection against indefinite detention. Mr Justice Noonan had refused his ex parte application for an inquiry, reasoning that it would amount to one High Court judge reviewing another’s order.
The Court of Appeal allowed the second appeal and remitted the matter to the High Court for an inquiry. Mr Justice Peart considered that the issue was sufficiently arguable to require the court to examine whether detention remained lawful after the statutory safeguard had been stayed. He expressly gave no concluded view on how the relevant provisions applied to Article 40.4 proceedings, or on whether the stay made detention unlawful.
By the time of the appeal, Mr Lanigan was on bail. The judgment suggested that the Minister might consider asking the High Court to lift the stay, but made clear that this was a suggestion, not an order. The court also noted that the Minister could explain the delay and, after the Article 40.4 proceedings ended, seek to fix a new surrender date with the issuing state’s agreement.