The Supreme Court has dismissed an appeal against a High Court order consenting to proceedings in the United Kingdom over a rape allegation for which the appellant had been acquitted in 1983. The court held that the acquittal was not a “final judgment” for the purposes of section 41 of the European Arrest Warrant Act 2003, as interpreted in line with European Union law.
The UK allegation concerned an offence said to have occurred on 17 December 1982. The appellant was acquitted at Newcastle-Upon-Tyne Crown Court on 17 June 1983. Forensic samples were re-examined in 2005 and 2006, after which UK prosecutors sought to have the acquittal quashed and a retrial ordered under section 76 of the Criminal Justice Act 2003.
The appellant had been surrendered to the UK in 2008 under a European arrest warrant relating to a separate rape allegation. He pleaded guilty to that offence and received a nine-year prison sentence. The UK Court of Appeal later found there was new and compelling evidence in the 1982 case and that the interests of justice required the acquittal to be quashed and a new trial ordered. It adjourned the application so prosecutors could seek Ireland’s consent, in light of the rule of specialty governing the offences for which a surrendered person may be proceeded against.
In March 2010, the High Court consented under section 22(7) of the Irish Act to proceedings for the 1982 allegation. The appellant appealed, arguing that while the acquittal remained in place it was a final judgment and the High Court had no jurisdiction to consent. The Minister’s submissions relied on European case law about when a person has been “finally judged.”
Delivering judgment, Mr Justice Finnegan said that under Irish legal usage the 1983 acquittal was a final judgment in the sense that it determined the matter. But the relevant European Union test asks whether, under the law of the state that delivered the judgment, it definitively bars further prosecution. Because UK law allows an acquittal to be quashed and a retrial ordered, the acquittal did not create that bar and was not a final judgment for section 41.
The court therefore ruled that section 41 did not prohibit surrender on the basis of the earlier acquittal and dismissed the appeal, affirming the High Court order. It did not decide the separate question raised in submissions about differences between common-law double jeopardy and the civil-law principle of ne bis in idem.