The Supreme Court has made a further reference to the Court of Justice of the European Union (CJEU) in Seán Walsh’s appeal against an order for his surrender to Northern Ireland. The appeal is stayed pending the CJEU’s ruling, and the Supreme Court has asked for the question to be dealt with under the expedited procedure because Walsh is in detention.
The question concerns changes to Northern Ireland’s release-on-licence rules made in 2021. Under the rules applicable when the alleged offences were committed, a person given a determinate sentence was automatically entitled to release on licence after serving half the sentence. Under the amended rules, a person serving such a sentence for the relevant offences may apply for release after serving two-thirds, and release depends on an assessment by the Parole Commissioners.
The United Kingdom seeks Walsh’s surrender under a warrant dated 26 November 2021 so he can be prosecuted for four alleged offences: membership of a proscribed organisation, directing the activities of a terrorist organisation, conspiracy to direct such activities, and preparing to commit acts of terrorism. The alleged offences are said to have occurred in Northern Ireland between 18 and 20 July 2020. The allegations have not been determined in these proceedings.
The High Court ordered surrender on 24 October 2022. It concluded that the maximum terms for the offences had not changed and that the changes to release on licence did not engage Article 7 of the European Convention on Human Rights. The Supreme Court granted leave to appeal and previously referred questions to the CJEU. In July 2024, the CJEU ruled that an executing court must independently assess whether there is a real risk of a breach of the EU Charter’s protection against heavier penalties, using updated information and seeking further information or guarantees where needed.
After receiving further information from a Northern Ireland district judge and hearing further submissions, the Supreme Court said the parties advanced competing interpretations of that ruling. The Minister for Justice argued that the 2021 changes concern execution of a sentence, while Walsh argued that they remove the former legal entitlement to release after half the sentence and could increase the penalty’s actual scope. The Supreme Court did not decide which interpretation was correct. It found that the meaning of “heavier penalty” under Article 49(1) of the Charter remained unclear and referred the issue to the CJEU.
The referral asks whether applying the amended rules to someone convicted and given a determinate sentence would impose a heavier penalty where release after half the term had previously been automatic, but release after two-thirds is now conditional. The Supreme Court has not made a final decision on the surrender appeal.