The Court of Appeal has dismissed Naoufal Fassih’s appeal against an order allowing the Netherlands to pursue a further prosecution following his surrender from Ireland.
In a judgment delivered on 27 May 2021, Mr Justice Edwards, with President Birmingham and Mr Justice Gearty concurring, upheld the High Court’s decision to grant consent under section 22(7) of the European Arrest Warrant Act 2003. The provision concerns further proceedings or penalties in the state to which a person has been surrendered. The Court of Appeal did not make a new order granting consent; it dismissed the appeal and upheld the High Court order.
Fassih had been surrendered to the Netherlands in 2017 under three European arrest warrants issued in 2016. He was later convicted there and sentenced to 18 years’ imprisonment for offences including money laundering, assault and attempted murder. The separate further offence at issue in the consent request had also resulted in a Dutch conviction and a life sentence.
The request, made in 2019, sought Ireland’s consent to further prosecution or execution of a sentence for that additional offence. Fassih argued that the authorities that issued the 2016 warrants would not qualify as issuing judicial authorities under later Court of Justice of the European Union rulings. He said the Netherlands therefore could not rely on those warrants as the basis for a section 22(7) request. He also challenged the request’s use of a document formatted like a European arrest warrant, arguing that it was ambiguous.
The Court of Appeal rejected the ambiguity argument, finding that the documents read together clearly sought consent for further proceedings and used the warrant format to provide the required information. On the challenge to the 2016 warrants, it held that the earlier surrender proceedings and the later consent application were linked. The status of the issuing authorities had been considered by the High Court judge during the original surrender proceedings, the appeal court said, and the resulting determination could not be reopened through this later application.
The court also held that domestic rules protecting the finality of judicial decisions applied despite the retrospective effect of the later EU rulings. It said the appellant had shown no sufficient reason to set those rules aside. The court did not decide the High Court’s separate, expressly obiter view on the statutory definition of “judicial authority”; it said that question was not necessary to resolve the appeal.