The High Court refused an application to cross-examine three people who had sworn affidavits in a pending application seeking the release of a man held under a surrender order to the United Kingdom. The ruling concerned that procedural application only; the court left the substantive release application open for further argument.
The man had been committed to prison after the Supreme Court ordered his surrender in November 2007 under a European arrest warrant. A question then arose because the underlying UK domestic arrest warrant had been withdrawn in July 2007, before the Supreme Court made its surrender order. The Supreme Court stayed surrender and referred the detention issue to the High Court. The man was subsequently released on bail pending the substantive application.
Affidavits from Crown Prosecution Service official Clare Riley and barristers Melanie Cumberland and John King gave competing views of the effect of the domestic warrant’s withdrawal under UK law. Riley and Cumberland said the European arrest warrant remained effective; King considered the continuing existence of the domestic warrant essential to the European warrant’s validity. Riley’s affidavit said the domestic warrant had been withdrawn after police were told surrender had been refused, without the CPS or issuing judicial authority being informed. A fresh domestic warrant was issued on 27 November 2007. The CPS intended to continue the prosecution, she said.
The Minister for Justice opposed cross-examination, arguing that the issue should be decided under Irish law and that the affidavits were not needed to resolve it. The respondent argued that the High Court should determine whether withdrawal of the domestic warrant affected the European warrant under UK law and whether it barred surrender under the Irish legislation.
Mr Justice Michael Peart held that the dispute did not concern whether a valid domestic warrant existed when the European arrest warrant was issued. He said the warrant’s initial validity was undisputed and that the question did not arise under the statutory provision governing whether a European warrant was “duly issued”. He concluded that cross-examination was unnecessary to decide the application before him.
The judge said the continuing validity of the warrant had to be assessed under Irish law, interpreted in light of the EU Framework Decision. He also observed that a challenge to the UK warrant could be brought before the English courts. His comments on the underlying issue were expressly limited to deciding the cross-examination application. He made no final determination of the release application, which remained open to further argument.