The High Court refused two applications for certificates to appeal decisions concerning surrender to the United Kingdom, finding that the objections based on the UK’s vote to leave the European Union did not meet the statutory test for certification.
In a composite judgment delivered on 28 October 2016, Ms Justice Donnelly considered applications by A.M. and Robert Donovan under section 16(11) of the European Arrest Warrant Act 2003. The applications followed earlier decisions rejecting each respondent’s objections to surrender and indicating that surrender orders would be made under section 16. The court’s decision on 28 October concerned only whether the earlier decisions could be appealed; it did not reconsider or alter those surrender decisions.
A.M. proposed asking whether surrender should be refused, adjourned or postponed in light of the Brexit referendum, given uncertainty about the terms of withdrawal and allegations dating back about 56 years. Donovan’s proposed question concerned whether the court could presume the UK would comply with the EU Framework Decision after leaving the EU. The Minister opposed certification, submitting that the arguments rested on speculation about future events and that the law and the UK’s obligations remained as they stood at the time.
The judge held that the questions, in substance, raised factual concerns about whether there was a real risk that the UK would fail to protect rights after surrender. Neither respondent had provided evidence, beyond the referendum result, establishing such a risk. The applications were rejected on that basis.
The court also considered the applications on the assumption that they raised legal questions. It said certification required both a point of law of exceptional public importance and that an appeal be desirable in the public interest. Although the issues might arise in other surrender cases and fundamental rights were at stake, the court found no uncertainty in the applicable law. Section 4A required a presumption that an issuing state would comply with the Framework Decision unless the contrary was shown; the court said no contrary evidence had been presented.
The judge further found the proposed questions too abstract and insufficiently grounded in evidence. Donovan had abandoned his section 37 arguments at the hearing, while A.M. had not presented evidence showing that his fair trial concerns could not be addressed in the UK. The court refused both certificates. It made no finding about what the UK’s eventual withdrawal arrangements would be.