The High Court decided on 14 May 2018 to refer the case of respondent R.O. to the Court of Justice of the European Union (CJEU) on issues arising from the UK’s impending withdrawal from the EU and its effect on European arrest warrant proceedings. The court asked for submissions on the shortest possible timetable for making the reference. The judgment does not set out the questions to be referred or make a final decision on surrender.
Justice Donnelly heard the Minister for Justice and Equality’s request for a reference in the case of James Dunne on 10 May. The Minister argued that a reference was warranted despite an existing Supreme Court reference in Minister for Justice and Equality v O’Connor, because the new case involved a person in custody and could qualify for the CJEU’s urgent preliminary ruling procedure. The respondents in the listed cases joined in the request, with one exception addressed later in the judgment.
The judge concluded that a separate reference was necessary. She said the Supreme Court’s O’Connor reference concerned a person who was not in custody, so the CJEU was not under the same obligation to act with minimum delay as it would be in a custody case. She also noted that the Supreme Court had anticipated a further reference involving a person in custody if the O’Connor case was not heard early.
The court considered several possible cases but decided to send only one, to avoid burdening the CJEU with multiple references on essentially the same point. It excluded R.L.T. from further consideration because that respondent was serving a sentence, and the judge was uncertain whether the case met the urgency criteria. She said L.B.’s case was not ready, James Dunne’s sentence could be nearly served by the time a reference was decided, and other issues remained in Paul Johnston’s case.
R.O.’s prosecution-only case had been heard almost to completion, with an Article 3 issue still outstanding. Justice Donnelly said the Brexit issue was closely linked to presumptions of compliance and mutual trust, so that issue could not be fully considered until the Brexit question was resolved. She also cited the seriousness of the alleged charges and noted that R.O. had not applied for bail. The court did not decide the outstanding Article 3 issue or the underlying extradition case in this judgment.