The High Court has refused to order an inquiry into the lawfulness of Julian Myerscough’s detention after a surrender order was made to the United Kingdom, finding that he had not established an arguable case under Article 40 of the Constitution.
Mr Justice McDermott delivered the judgment on 14 June 2016. The application challenged the constitutionality of section 16(11) of the European Arrest Warrant Acts 2003 and 2012, which allows an appeal against a surrender order only if the High Court certifies that it raises a point of law of exceptional public importance and that an appeal is desirable in the public interest. Donnelly J had refused that certificate on 11 March.
The court considered claims that the appeal threshold denied an effective appeal, discriminated against the applicant, or allowed a judge to decide whether their own decision could be appealed. It found no arguable ground to depart from the reasoning in O’Sullivan v Irish Prison Service, which had upheld the constitutionality of the equivalent appeal restriction. The judge also rejected the proposed comparison with appeal rules under the International Criminal Court Act 2006 and found no evidence supporting a claim of indirect discrimination based on nationality.
The judgment reviewed the grounds proposed for appeal from the original surrender decision, including arguments about the applicant’s claimed conviction status, the absence of a witness at trial in the UK, and material said to have been used to address defects in the European Arrest Warrant. The court said it was not deciding whether Donnelly J’s surrender ruling was correct. It concluded, however, that the proposed grounds did not establish an arguable or potentially successful appeal and that no arguable constitutional challenge had been shown.
A separate issue concerned a stay granted by Twomey J on 23 March while the Article 40 proceedings were pending. The judgment held that a person should not be surrendered once an Article 40 inquiry application has been initiated, under section 16(6), and that the High Court had jurisdiction to protect the applicant’s position by staying the surrender order. It found no arguable basis to challenge that stay.
The court therefore refused to order an inquiry into the lawfulness of the detention. The judgment did not determine the correctness of the underlying surrender decision.