The Supreme Court has referred a question about EU Charter rights to the Court of Justice of the European Union in an appeal concerning Seán Walsh’s proposed surrender to Northern Ireland to face terrorism charges. It rejected his argument that surrender should be refused because of a likely breach of the European Convention on Human Rights, but did not make a final decision on surrender in this judgment.
The case concerns alleged offences between 18 and 20 July 2020. Four arrest warrants issued in November 2021 relate to alleged membership of a proscribed organisation, directing or conspiring to direct a terrorist organisation, and preparing to commit acts of terrorism. The judgment records the charges as allegations; Walsh has not been convicted or sentenced in these proceedings.
The dispute focuses on Northern Ireland legislation that took effect in April 2021. For certain terrorism offences, it replaced automatic eligibility for release on licence after half a sentence with a requirement to serve at least two thirds, and made release subject to approval by the Parole Commissioners. Walsh argued that applying the later rules after the alleged offences could expose him to a heavier penalty contrary to Article 7 of the Convention and Article 49 of the EU Charter.
The Minister for Justice, who appealed, argued that surrender should be refused only in exceptional circumstances, such as a real risk of a fundamental failure to protect rights. The Supreme Court said the Convention is enforceable in Northern Ireland and that Walsh could pursue his rights there, with a possible further application to the European Court of Human Rights. It said no systemic failure had been shown and that it was not for the Irish court to rule on whether the UK Supreme Court had correctly decided a similar challenge in the Morgan case.
The Court also considered that Walsh’s position differed from the Morgan applicants, who had already been sentenced when the new rules took effect. Walsh has not yet been convicted or sentenced. The Supreme Court therefore rejected the Convention-based ground for refusing surrender.
It reached a different procedural conclusion on the Charter question. The Court said it was necessary to ask the EU court whether an Irish court hearing a surrender request must make a separate assessment under Article 49 of the Charter, and what that assessment should involve. It proposed a preliminary reference under EU law.
The judgment does not determine the Charter question or finally dispose of the surrender request. The Supreme Court’s proposed reference asks for guidance; the source does not record a response from the Court of Justice or a subsequent final order.