The Court of Appeal has dismissed an appeal by D.E. against his surrender to the UK for prosecution, ruling that the impact on his wife and son did not make surrender incompatible with Ireland’s obligations to respect family and private life.
The judgment, delivered by Ms Justice Donnelly on 1 July 2021, concerned three alleged sexual offences against a young girl in the UK between May 1998 and May 2001. One offence allegedly involved multiple incidents. The allegations were not findings of guilt.
D.E. argued that he was the sole carer for his wife and son, both of whom have significant physical disabilities. Evidence before the High Court described his son as needing extensive daily assistance and his wife as physically unable to provide that care. A nursing consultant said alternative support would require substantial care, domestic assistance and transport. The family was on a waiting list for personal assistance from the Health Service Executive (HSE).
The Minister for Justice argued that the evidence did not establish that no one else could provide care, and noted that D.E. had not responded to some HSE communications. The High Court accepted the medical evidence and found that HSE support was limited, but ruled that surrender would not breach Article 8. It separately postponed surrender for six months to allow time for alternative care arrangements. That postponement was not the issue decided in this appeal.
The Court of Appeal clarified that personal or family circumstances can, in principle, justify refusing surrender under section 37 of the European Arrest Warrant Act 2003. But the court must apply the Act’s surrender requirements and consider Article 8, including the grounds on which interference with family life may be justified. The person resisting surrender bears the evidential burden, and the evidence must be cogent enough to establish incompatibility. Exceptionality is not itself the legal test, though the court said a successful Article 8 objection would arise only in a truly exceptional case.
The court acknowledged that surrender would cause hardship. It found, however, that the evidence did not bring the case close to the high threshold for showing that surrender would be incompatible with Article 8. It noted that the HSE remained willing to become involved and that the family was on a waiting list. The court also said the time between the alleged offences and proceedings was not culpable delay and did not reduce the public interest in surrender.
The appeal was dismissed. The ruling addressed the Article 8 objection and the certified legal questions; it did not determine whether D.E. committed the alleged offences.