The High Court dismissed Catherine Gaffney’s claim that the European Arrest Warrant Act 2003 unconstitutionally prevented the court from granting her bail while she remained subject to a domestic prison sentence. The court refused the declaration sought on 15 April 2021 and said the defendants were entitled to their costs, subject to either side seeking a different order within 21 days of electronic delivery of the written judgment.
Gaffney had been ordered surrendered to Northern Ireland under a European Arrest Warrant issued in 2018, but surrender was postponed until her domestic sentence ended. She was later sentenced to a further three years for theft-related offences, with an estimated release date of 21 June 2021. Two bail applications were refused in 2020 on the basis that she was still “required to serve” that sentence under section 27(2) of the 2003 Act.
The prison service had advised in February 2021 that Gaffney was suitable for the Outlook women’s community return programme. Its letter said that if she obtained bail in the EAW proceedings, she would be released on reviewable temporary release to undertake unpaid work at a community service site in the Dublin area. The programme was intended to continue beyond her estimated domestic release date.
Gaffney argued that she would still be serving her domestic sentence while on temporary release, so the statutory restriction on bail continued to apply. The defendants argued that the restriction no longer applied because she would not be “required to serve” the remainder of the sentence in prison if she obtained bail to complete the programme.
Mr Justice Tony O’Connor accepted the defendants’ interpretation. He said the plaintiff’s argument overlooked the phrase “required to serve” and concluded that she would not be required to serve the remainder of her term if she succeeded in obtaining bail to complete the programme. He also considered that the plaintiff could renew her bail application in light of the prison service’s later letter.
The judge did not determine the broader constitutional issues raised in the proceedings. He applied judicial restraint, saying those issues could be litigated if a prisoner assured of temporary release were denied bail because of the operation of section 27(2). The written judgment records that the plaintiff’s claim was dismissed and provides for a proposed costs order, with a 21-day period for either party to indicate a request for a different order.