Ireland is out of line on European Arrest Warrant

Mon, Oct 1, 2012, 01:00

It is this mutual respect which underpins further progress in the criminal law field at EU level. Ireland should play its full part in this process, writes EUGENE REGAN

THE RECENT IIEA publication European Criminal Justice-Post Lisbon highlights the extraordinary achievements of the European Union in the contentious area of criminal law. Some recent Supreme Court judgments on the question of extradition might suggest fundamental problems still exist in reconciling Ireland’s common law with that of the continental civil law systems of criminal justice. However, those problems are not so fundamental but arise mainly from inconsistency in the manner of implementation and interpretation of EU legislation.

Recent decisions of the Supreme Court on the question of the extradition of Ian Bailey to France and of Ciarán Tobin to Hungary highlight problems and inconsistencies in one of the key EU legal instruments in the area of criminal law co-operation, that of the European Arrest Warrant Framework Decision 2001 and its implementation in Ireland by the European Arrest Warrant Act, 2003. These problems are of our own making.

In the case of Ian Bailey it was found that the 2003 Act simply did not allow the extradition of a person where there was no decision to “try the person” in the requesting jurisdiction. In the Bailey’s case, his extradition was sought for questioning by the French authorities in connection with the death of Sophie Toscan du Plantier.

In the case of Ciarán Tobin, who was convicted in absentia in Hungary on a driving charge causing the death of two children, it was found that he was wrongly accused of having fled Hungary and his extradition was refused on that basis. When the 2003 Act was changed in 2009 and his extradition was again sought, it was considered by the Supreme Court that this was not permissible and constituted an abuse of process. That decision was by a three to two majority.

The judgment in the Bailey case has significant consequences for warrants coming from a number of member states, including France, Spain, Italy, Holland, and Belgium, who routinely send requests for surrender at the investigative or pre-trial stage of their respective criminal processes.

Following this procedure Julian Assange would not be extradited from this jurisdiction to Sweden for questioning on alleged sexual offences. The United Kingdom, unlike Ireland, extradites people to other EU member states at an investigative stage of a possible prosecution.

In the case of the stage at which a person may be extradited, it can be seen that there is a divergence in the way two common law countries, Ireland and the United Kingdom, have implemented the Framework Decision in this respect. Thus, the issue arises not because of any conflict between the common law and the civil law systems of criminal justice. It arises because Ireland through the implementing Act of 2003 displayed a greater reluctance than Britain to work with other member states in combating serious crime in the EU in a spirit of mutual respect of each others’ criminal justice systems, by attaching greater conditionality to extradition.

While serious criticisms have been made of the Framework Decision by some of our judges, it has been stated that the manner in which it has been incorporated in a partially directly effective manner in the 2003 Act is at best peculiar and in truth all but incomprehensible.

The problem of inconsistency in application is also due to divergent interpretation of the Framework Decision by member states. Judge Fennelly in his judgment in the Bailey case said that while the implementing Act of 2003 had to be interpreted in conformity with the Framework Decision, the Supreme Court had not been given authority to refer questions of interpretation to the Court of Justice, to which final interpretative authority had been assigned. This matter has now been resolved by the Lisbon Treaty, which allows for our courts to refer questions of interpretation to the Court of Justice in Luxembourg from 2014. The European Court will then have the last word on the matter of extradition.

While Ireland chooses to exercise an opt-out in the Lisbon Treaty in the area of criminal law for fear our criminal justice system might be adversely affected by EU legislation, it transpires that Ireland has participated in practically all new criminal law measures initiated since the Lisbon Treaty entered into force in 2009, suggesting such fear was unfounded.

The reality is that with the adoption of the Charter of Fundamental Rights and its incorporation into the Lisbon Treaty, together with the European Convention of Human Rights to which all member states subscribed, member states share the same principles of justice throughout the EU and this provides a strong basis for mutual respect among member states of their respective legal systems. It is this mutual respect which underpins further progress in the criminal law field at EU level. Ireland should play its full part in this process.

Eugene Regan SC edited the IIEA publication referred to above.

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