The Supreme Court has proposed asking the Court of Justice of the European Union whether an earlier Irish surrender decision prevents a man from challenging a later Dutch request to prosecute him on additional charges.
The appeal concerns consent under section 22(7) of the European Arrest Warrant Act 2003 to waive the rule of specialty. That rule generally prevents a person surrendered to another state from being prosecuted or detained there for offences outside those for which they were surrendered, unless consent is given.
The appellant was surrendered to the Netherlands in 2017 under three European Arrest Warrants issued in 2016 by Dutch public prosecutors. He was tried, convicted and sentenced to 18 years in prison for the offences covered by those warrants. He has since been convicted on two further charges and sentenced to life imprisonment, but the sentence cannot be executed unless the Irish court consents to the waiver.
The appellant argues that the prosecutors who issued the original warrants did not qualify as judicial authorities under EU law. The Minister for Justice accepts the relevant statutory interpretation but says the 2017 High Court decision to surrender him settled the issue and cannot now be reopened. The High Court and Court of Appeal accepted the Minister’s position, finding that the earlier decision prevented the appellant from raising the point again.
In her judgment, Supreme Court Justice Iseult O’Malley said the 2017 surrender order could not be reopened or reversed. But she rejected the argument that the current challenge was a collateral attack on that order: the surrender had already been carried out, and the current appeal concerned a separate statutory process with significant consequences for the appellant.
O’Malley said the EU court’s rulings on Dutch prosecutors and the rule of specialty raised a question about the relationship between the original surrender proceedings and the later consent procedure. The Supreme Court had to determine whether the procedures were so closely linked that an issue decided for surrender purposes was settled for a later consent request, or whether the consent process was a separate proceeding.
She concluded that the answer depended on the interpretation of EU law and was not clear. The judgment therefore proposed that the Supreme Court make a preliminary reference to the EU court, and invite the parties to comment within seven days on the wording of the questions. It also proposed asking for expedited or urgent handling.
The judgment did not finally determine whether consent should be granted or whether the appellant can rely on the status of the original issuing authorities. The proposed reference would address the legal questions needed to resolve that dispute.