The High Court has ruled that an Irish court could lawfully order Salman Shahzad’s surrender to the UK under a European arrest warrant issued before the end of the Brexit transition period. Mr Justice Paul Coffey refused Shahzad’s application challenging the legality of his detention.
Shahzad was arrested in Ireland under a UK warrant seeking his surrender to serve the remainder of an eight-year sentence for conspiracy to defraud. The High Court had ordered his surrender and committal to prison on 8 February 2021. He then brought proceedings under Article 40.4.2° of the Constitution, which allow the court to inquire into the lawfulness of a person’s detention.
His challenge concerned Article 62.1(b) of the EU–UK Withdrawal Agreement. That provision continued the European Arrest Warrant framework for people arrested before the transition period ended on 31 December 2020. Shahzad argued that the provision concerned judicial cooperation in criminal matters and required Ireland to opt in under Protocol No. 21 to the EU treaties. Ireland had not opted in, he submitted, so the provision could not support the surrender and detention orders.
The prison governor opposed the application, arguing that Shahzad was making an impermissible collateral challenge to the earlier surrender order. The court rejected that preliminary objection. Although the point could have been raised during the surrender proceedings, Coffey said the issue was complex and systemic, and there was no evidence Shahzad’s former lawyers had considered it. He allowed the constitutional inquiry to proceed.
On the substance, the judge held that the Withdrawal Agreement was concluded under Article 50 of the Treaty on European Union, which authorises arrangements for an orderly withdrawal from the EU. He found that the arrest warrant provision was a separation measure serving that withdrawal purpose, rather than a free-standing measure based on Article 82 of the Treaty on the Functioning of the European Union. Protocol No. 21 therefore did not apply to it.
Coffey concluded that Article 62.1(b) was binding on and applicable in Ireland. He found that the Irish legislation and a 2020 ministerial order gave the European Arrest Warrant Act effect in Shahzad’s case, making the surrender and detention orders lawful. The court refused the relief sought and found his detention lawful.