The High Court has consented to the further prosecution in the Netherlands of Pawel Trepiak for an alleged offence under the Dutch Opium Act concerning cannabis possession.
The decision, delivered by Mr Justice Edwards on 12 July 2011, followed a written request from the Dutch issuing authority. Trepiak had already been surrendered to the Netherlands under a European Arrest Warrant covering three other offences. The new request concerned conduct not covered by that original warrant.
The Dutch request described the proposed offence as violating Article 3, subsection B and/or C of the Opium Act. Information supplied by the Dutch authority alleged that about 100 kilograms of cannabis were jointly possessed on 1 November 2008 at a house Trepiak had rented in Helmond. The judgment records those matters as allegations and information supplied in support of the request; it did not determine Trepiak’s guilt.
The Minister for Justice and Equality, acting as applicant through the Irish Central Authority, submitted that the alleged conduct corresponded to possession of a controlled drug under Irish law and met the minimum-gravity threshold. The court accepted that correspondence and found the threshold met. The respondent opposed consent, arguing principally that the legislation gave the court an unfettered discretion and amounted to an unauthorised delegation of legislative power.
Justice Edwards rejected that argument. Reading section 22 of the European Arrest Warrant Act 2003 in light of the Act as a whole and the EU Framework Decision, the court held that its discretion was circumscribed. Consent should be given unless a relevant mandatory or applicable optional ground for refusing surrender existed. Because the court was not satisfied that the provision created an arbitrary, unfettered discretion, it said no constitutional issue arose for decision.
The court granted consent for Trepiak’s further prosecution in the Netherlands for the offence specified in the request: violation of Article 3, subsection B and/or C of the Dutch Opium Act. The order concerned consent to prosecution only; the judgment did not decide the underlying criminal allegation.