Supreme Court warns Brexit may have impact on extraditions to UK

The Supreme Court has raised questions about the potential impact of Brexit on future extraditions of Irish and other EU citizens to the UK.

The five-judge court today decided to refer for determination by the Court of Justice of the EU what it described as “novel” — because no country to date has left the EU — and important issues concerning the impact of Brexit on extradition requests from the UK.

The issues concern 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.

They were raised by lawyers for Thomas Joseph O’Connor (51), a construction company director, with an address at Cloughbeirne, The Walk, Roscommon, who is wanted in the UK in connection with a £5 million tax fraud.

About 20 cases here will be affected by the CJEU decision which also has implications for the UK’s efforts to procure the extradition of citizens from other EU member states.

The Chief Justice, Mr Justice Frank Clarke, said the matter was urgent and the Supreme Court would expedite the CJEU referral process as much as possible.

The court is mindful of the fact the general principle advanced in this case, in addition to having implications for some 20 existing High Court cases here, might arguably have some effect in other areas of law and, once raised, has the potential to affect the relations between other countries and the UK in a number of areas, he said.

The court was thus anxious the reference be made at the earliest possible date and would invite the CJEU to deal with it in the “most expeditious manner possible” as it was in the interests of all “that certainty be brought to this area of law as quickly as possible”.

The precise questions will be finalised following a hearing on February 13th involving the parties to Mr O’Connor’s application for leave to appeal to the Supreme Court over orders clearing the way for his extradition to the UK.

Dr Michael Fordes SC, for Mr O’Connor, argued the potential effect of Brexit on the European arrest warrant proceedings entitled his client to a Supreme Court appeal.

The UK’s formal notice in March 2017 under Article 50 of the EU Treaty of its intention to leave the EU gives rise to a situation where his client, as an EU citizen, will be surrendered to another jurisdiction where there is a risk he will be required to serve a prison term extending beyond the UK’s membership of the EU, Dr Forde said.

Mr O'Connor is wanted to serve a four-and-a-half year prison sentence for defrauding the British Revenue. He was sentenced in January 2007 following a six week trial at Blackfriars Crown Court, London, and also faces further charges of absconding and breaching his bail in England.

After he returned to Ireland, he was arrested under a European arrest warrant. The High Court ordered his extradition in December 2014 and, after the Court of Appeal dismissed his appeal against that order, he sought a further appeal to the Supreme Court.

Giving the Supreme Court decision, the Chief Justice said there was a “great deal of assertion” on behalf of Mr O’Conor that the UK’s departure from the EU “changed everything” about European arrest warrants but “very little clarity” about what precise measures of European law were engaged.

However, some general contentions were advanced on behalf of Mr O’Connor, including that the legal framework which will apply to relations between the EU and the UK after Brexit remains unclear.

The precise consequences of Brexit for Mr O’Connor were “equally unclear”, including whether any aspects of the relations between the EU and UK after March 2019 will remain subject to the jurisdiction of the CJEU.

What is clear is that, if Mr O’Connor is surrendered, it is “highly probable” he will remain imprisoned in the UK after its withdrawal from the EU in March 2019, the judge said.

His essential argument was Ireland is being asked to surrender an EU citizen to the UK when the legal framework governing that citizen is at least at significant risk of not being subject to EU law and rather dependent on UK law.

The Supreme Court cannot conclude those issues are unstateable and must conclude an issue of European law arises for determination by the CJEU, he ruled.

The Minister for Justice, in opposing referral, argued the appropriateness of his surrender must be determined on the law as it stands now.