Issues in an appeal brought by an alleged member of a dissident republican paramilitary group against his extradition to the UK could be referred to the European Court of Human Rights.
Seán Walsh (56) is wanted in Northern Ireland to face charges of IRA membership stemming from a police surveillance operation on a meeting of senior paramilitaries in Omagh, Co Tyrone, in July 2020. He denies the claims.
The possibility of a referral to the European court arose during the one-day hearing of Mr Walsh’s Supreme Court appeal against the High Court’s decision to permit his extradition.
During the Tuesday hearing before seven judges, Chief Justice Donal O’Donnell questioned the parties about the consequences that would flow if the court found Mr Walsh should not be extradited.
Mr Justice O’Donnell asked what would happen if Ireland’s Supreme Court found Mr Walsh’s fundamental rights would be breached by the surrender only for the European court to subsequently decide there was no breach.
Mr Walsh’s senior counsel Ronan Munro, instructed by Mulholland Law solicitors, said there is a duty on the State executing a warrant to scrutinise a possible breach of an accused’s rights under the European Union Charter of Fundamental Rights.
John D Fitzgerald SC, for the Minister for Justice, said his initial thought was that no issue of European Union law is engaged in the appeal.
Mr Justice O’Donnell asked the lawyers on each side to file submissions on the issues that should be referred to Europe if the court decides this is required.
Mr Walsh, who is being detained in a prison in this State, claims the extradition would breach his rights as 2021 UK legislation precluding people convicted of terrorism offences from release under licence half way through their sentence was found to be incompatible with article 7 of the European Convention on Human Rights (ECHR) yet remains in force.
The UK Supreme Court, however, held that the sentencing provision Mr Walsh is challenging is compatible with article 7.
On Tuesday, the Dublin Supreme Court heard Mr Walsh would only be entitled to a maximum of a 33 per cent reduction to his custodial sentence, rather than the previous 50 per cent, under the UK’s Counter Terrorism and Sentencing Act of 2021. This more limited reduction would be subject to later approval by the parole commissioners at the ⅔ point of the sentence, creating more uncertainty that did not occur under the previous regime, the court heard.
Mr Munro, appearing with barrister Mark Lynam, said the scope of the penalty his client faces if convicted has been “redefined” by this legislation.
He told the court it has jurisdiction to refuse to surrender his client on the basis of a breach of his fundamental rights. The Irish court is in “as good a position” as the UK court to determine the issues raised, he submitted.
Mr Fitzgerald, with Anthony Hanrahan BL, said any potential sentence imposed is “still a contingent matter”. He submitted that the Supreme Court should not prevent the UK from trying Mr Walsh on “very serious issues”.
Mr Walsh, of Ballinlough, Douglas, Co Cork, faces four charges including that he was an IRA member, that he was involved in directing IRA activities and that he was involved in a conspiracy to direct a terrorist organisation.