The Supreme Court ruled that Ireland need not be able to prosecute an alleged act on a basis similar to that asserted by the state seeking surrender before a person can be surrendered under a European arrest warrant.
In a judgment delivered on 12 December 2014, Chief Justice Susan Denham answered that certified legal question in the negative. The appeal arose after the High Court ordered Adam Stuart Busby’s surrender to the United Kingdom under a warrant seeking his surrender for prosecution in Scotland.
The warrant identified the offences by ticking the “terrorism” category. It alleged threats to contaminate water supplies and a series of hoax reports about bombs or dangerous substances. The judgment records that the alleged incidents numbered two to seven were hoaxes and that no noxious substances or bombs were found. It also says Busby had been prosecuted and convicted in Ireland for similar offences.
The High Court certified a question about whether the state executing a warrant must be able to prosecute the underlying act on a similar jurisdictional basis to the issuing state. The Supreme Court said it was deciding that question on the assumption that the offence was extra-territorial for the purposes of section 44 of the European Arrest Warrant Acts. It expressly said it was not required to decide whether the offence was extra-territorial.
The court held that the European arrest warrant system rests on mutual recognition of judicial decisions and mutual trust, rather than identical laws or procedures in each member state. It said there is no general requirement for parity of procedures. The court noted that surrender may still be refused in egregious circumstances where it is established that surrender would lead to a denial of fundamental or human rights, including a clearly established and fundamental defect in the requesting state’s justice system.
The decision answered the certified point only: the executing state need not be shown to have power to prosecute the act or omission on a similar basis to the issuing state’s asserted jurisdiction. The judgment does not state in this extract that the Supreme Court itself made a new surrender order or determine the unresolved extra-territorial question.