The Supreme Court agreed to refuse the surrender of J.A.T. No. 2 to the United Kingdom, describing the case as rare and exceptional. In a judgment delivered on 28 April 2016, O’Donnell J said the combined circumstances were powerful, but close to the margin. He joined the order proposed in the Chief Justice’s judgment and did not dissent; this judgment does not set out the terms of that order.
The case concerned a second European Arrest Warrant after the Supreme Court had found the first warrant defective. O’Donnell J said issuing a fresh warrant was not, by itself, barred: its validity was a separate issue, and a defective first warrant did not prevent a second from being issued. He was unconvinced that the authorities had to provide a fuller explanation for the earlier error before the new warrant could be executed. He saw no suggestion of bad faith or concealment and did not consider the second warrant in this case an abuse of process.
The offences alleged dated to 1997. O’Donnell J treated this as lapse of time, rather than a claim that authorities should have detected the alleged crimes earlier. He said delays in issuing and executing the warrants were regrettable and open to criticism, but were not enough on their own, or together with the repeat warrant, to establish abuse of process or justify refusing surrender.
The judgment also addressed the appellant’s health and his role as the primary, effectively sole, caregiver for his son. O’Donnell J said the son would suffer severely if the appellant were surrendered and regarded him as a family member for Article 8 of the European Convention on Human Rights and the Constitution, despite being an adult. The judgment says the son was not accused of wrongdoing.
O’Donnell J considered the repeat application, lapse of time, avoidable delay, the impact on the son and the authorities’ knowledge of those circumstances cumulatively. He said these factors were powerful, while acknowledging doubt that they would justify refusal for very serious violent crimes. He emphasised that surrender serves a weighty public interest and that refusal should require a compelling feature, or combination of features, in a truly exceptional case. He also said courts should scrutinise such claims rigorously.
The judgment identifies abuse of process as the real issue. O’Donnell J said that where a true abuse is established, proceedings would normally be struck out or stayed, though a remediable abuse might allow time to cure the defect. This judgment is O’Donnell J’s reasoning within the Court’s decision; it does not reproduce the Chief Justice’s findings or the formal order.