A significant European court judgment that extradition to the UK should not be refused on Brexit grounds has effectively decided an Irishman's separate battle to prevent his extradition, the Supreme Court has ruled.
The Supreme Court said the Court of Justice of the EU had effectively decided, in its judgment last month on the case of “RO”, that it was possible Brexit might prevent surrender but only where the person concerned was at risk of being deprived of rights recognised by the European Charter and the Framework Decision on extradition.
The Chief Justice, Mr Justice Frank Clarke, said the Supreme Court could not see any basis for it to hold there is a "real risk" that any rights which Thomas O'Connor may have will not be fully respected if he is surrendered to the UK.
The court allowed lawyers for Mr O’Connor a final opportunity to try and convince the Court of Justice of the EU it had wrongly decided the RO case but said it considered that was “highly unlikely”.
Mr O’Connor was not entitled to “a significant postponement” of his surrender unless he can make some “immediate and material” progress in persuading the CJEU to reconsider RO, the court said.
The matter has been adjourned for four weeks so Mr O’Connor’s side can make further immediate submissions to the Court of Justice of the EU .
Unless the prospect of the European court reopening the issues remains alive by then, the Supreme Court will consider whether to uphold the order for his extradition, the Chief Justice said.
Mr O’Connor, Cloughbeirne, The Walk, Co Roscommon, who is wanted in the UK to serve a four and a half year sentence in connection with a Stg£5m tax fraud, remains on bail.
Last February, the Supreme Court referred his case to the Court of Justice of the EU to determine issues concerning whether an EU state is required to refuse to surrender an EU citizen to the UK if that citizen will remain imprisoned there after the UK leaves the EU in March 2019.
The High Court here later separately referred similar issues in the RO case, involving a Polish man arrested in Ireland on foot of a European Arrest Warrant issued by the UK.
The RO case was fast-tracked by the Court of Justice of the EU because, unlike Mr O’Connor, RO was in custody.
In its judgment on RO last month, the Court of Justice ruled the UK’s Article 50 notification of its intention to withdraw does not have the effect of suspending the application of EU law in that member state. It said the provisions of the Framework Decision on extradition and principles of mutual trust and mutual recognition continue in full force and effect in the UK until its actual withdrawal from the EU.
That decision has implications for about 20 other cases here.
Following the RO decision, the CJEU wrote to the Supreme Court suggesting RO appeared to have determined the questions referred in Mr O’Connor’s case.
The Supreme Court then convened last week to consider that.
Giving its ruling on Tuesday, the Chief Justice said the questions posed to the CJEU in RO and answered by it were substantially identical to the questions posed in this case.
The CJEU judgment in RO had concluded a “mere theoretical” possibility of infringement of rights was not sufficient to override the obligation to surrender a person under a European Arrest Warrant.
He could not see any basis for the Supreme Court to hold there is a real risk any rights which Mr O’Connor may have will not be fully respected if surrendered to the UK, he said.
The Supreme Court intended to respond to the CJEU letter by saying there is no need to proceed with the O’Connor reference, subject to Mr O’Connor having an opportunity to persuade the CJEU otherwise, he outlined.
Mr O'Connor was sentenced in January 2007 following a six-week trial in London and faces further charges of absconding and breaching his bail in England.
After he was arrested in Ireland under a European arrest warrant, the High Court ordered his extradition in December 2014. The Court of Appeal later dismissed his appeal against that order and he then appealed to the Supreme Court.