The Supreme Court held that a 2009 amendment requiring High Court certification applied to Rafal Adach’s appeal against an order for his surrender to Poland, and concluded that the appeal was not properly before it because no certificate had been sought.
The judgment, delivered by Hardiman J. on 13 May 2010, addressed two preliminary issues: whether the Criminal Justice (Miscellaneous Provisions) Act 2009 could apply to the appeal, and whether its amendment to the European Arrest Warrant Act 2003 governed an appeal concerning a warrant endorsed for execution before the amendment.
Adach had been arrested in March 2009 on two European Arrest Warrants. On 20 October 2009, the High Court directed his surrender to Poland in relation to one warrant. He filed a notice of appeal on 23 October. The Minister for Justice, Equality and Law Reform then sought to have that notice struck out, arguing that an appeal required a certificate from the High Court under the amended law.
Before the amendment, section 16(12) of the 2003 Act allowed an appeal to the Supreme Court on a point of law. Section 12(f) of the 2009 Act replaced that route with a requirement that the High Court certify both that the order involved a point of law of exceptional public importance and that an appeal was desirable in the public interest.
Adach argued that the amendment should not apply because the Act had not been published before the High Court hearing or the filing of his appeal. The judgment records that the Act was signed by the President on 21 July 2009 and that a notice stating it had become law appeared in Iris Oifigiúil on 24 July. The parties agreed that the Act itself first became available on the Oireachtas website on 4 November.
Hardiman J. held that, under Article 25 of the Constitution, the required promulgation was the publication of the notice in Iris Oifigiúil; publication of the Act itself was not required for it to become law. He also distinguished the European cases cited by Adach, which concerned the accessibility of laws imposing obligations on individuals or permitting deprivation of liberty. The amendment at issue regulated access to an appeal.
The judgment also noted that the High Court judge had told counsel that he was not deciding whether the new certification requirement applied and that an application for leave might be needed. Hardiman J. concluded that the 2009 provisions applied and that the appeal was governed by the amended section 16(12). As no certificate had been sought from the High Court, the appeal was not properly before the Supreme Court. The judgment does not state an order striking out the appeal or determine the merits of the surrender decision.