The Supreme Court has dismissed appeals by Barry McArdle and Kenneth Brunnell against High Court orders directing their surrender to the Netherlands for prosecution on murder charges. The court held that the Dutch public prosecutor who issued the European arrest warrants could be treated as a judicial authority under Irish law.
The appeals, heard together, concerned warrants issued in the Netherlands on 6 July 2011. The High Court ordered surrender on 28 March 2014. The appellants challenged, among other matters, whether the prosecutor had the required independent judicial status or oversight, and whether the courts should refer questions about the meaning of “judicial authority” to the Court of Justice of the European Union.
The Supreme Court said the Framework Decision leaves it to each member state’s law to identify the authority competent to issue a European arrest warrant. Ireland’s legislation includes a person authorised under the requesting state’s law to perform functions similar to those of an Irish court when issuing a warrant. The court accepted that the Amsterdam public prosecutor was authorised under Dutch law to perform those functions and was regarded as part of the Dutch judiciary.
The court said a prosecutor could not be disqualified as a judicial authority simply because the person was a prosecutor rather than a judge. It recognised that cogent grounds in a particular case could lead a court to a different conclusion, but found that the appellants had not established such grounds here.
The High Court had also considered whether decisions had been made to charge and try the appellants, as required by section 21A of the European Arrest Warrant Act. That section presumes such decisions were made unless the contrary is proved. The High Court found the evidence did not establish that the decisions had not been made and rejected that objection. The Supreme Court’s stated conclusion in these appeals addressed the status of the issuing authority and dismissed the appeals, leaving the surrender orders in place.
The Supreme Court also declined to refer questions to the EU court, finding no grounds for a reference. It endorsed the High Court’s criticism of comments made by the Dutch prosecutor during the information exchanges, saying they were neither usual nor helpful in the mutual cooperation required between states.