The High Court has consented to the prosecution in the Netherlands of a man for two additional alleged offences, ruling that an objection based on the authority behind his 2016 surrender amounted to an impermissible challenge to a final court decision.
The judgment, delivered by Mr Justice Binchy on 27 July 2020, concerns a request under section 22 of the European Arrest Warrant Act 2003. The man had been surrendered to the Netherlands in February 2017 under three European arrest warrants issued in 2016. He was later convicted and sentenced to a total of 18 years’ imprisonment for offences covered by those warrants.
In 2019, the Dutch National Prosecutor’s Office sought Ireland’s consent to prosecute him for two further alleged offences: murder in association on 15 December 2015, and attempted incitement to murder between 1 and 25 November 2015. The additional warrant was signed by an investigating judge. The judgment records that the alleged offences and the man’s alleged involvement were set out in the warrant; the additional allegations were not findings of guilt in this application.
The respondent raised two objections. First, he argued that the Netherlands did not qualify as an “issuing state” because the prosecutors who issued the 2016 warrants did not meet the meaning of “issuing judicial authority” clarified by the Court of Justice of the European Union in 2019. Second, he argued that the Dutch request did not satisfy the statutory requirement for a written request from the issuing state.
The judge rejected the second objection. He held that the Dutch prosecutor’s letter of 30 July 2019, read together with the additional European arrest warrant enclosed with it, constituted the required written request.
On the first objection, the judge found that the earlier surrender proceedings had already determined that the legal requirements for surrender were met, including that the 2016 warrants had been issued by judicial authorities under the Act. The respondent could have raised the issue during those proceedings. The judge concluded that raising it in the later consent application would be a collateral attack on the surrender order, which could not be reopened outside an appeal. He also held that the retrospective effect of the CJEU ruling did not displace domestic rules giving finality to decisions.
The court therefore granted the application for consent to the additional proceedings. It did not determine the respondent’s guilt on the two additional offences. The judge added that his further observations about the statutory definition of “judicial authority” were not part of the basis for the decision.