Post-Brexit extradition cases with UK more open to challenge, says Chief Justice
European arrest warrant easier to execute
Chief Justice Mr Justice Frank Clarke said additional pressures placed on the Irish judiciary when the Republic becomes the only common law country in the EU after Brexit mean more judges would be needed over time. File photograph: Cyril Byrne
New arrangements to extradite criminal suspects between the Republic and the UK after Brexit would likely be easier to challenge which may result in some extradition requests failing, Chief Justice Mr Frank Clarke has said.
And he also said the additional pressures placed on the Irish judiciary when the Republic becomes the only common law country in the EU after Brexit mean more judges would likely be needed over time.
Ultimately, he would be “very surprised” if arrangements were not found to replace the European arrest warrant.
“But it is worth saying that the European arrest warrant is easier than traditional extradition,” he said.
“Most countries would say it takes a lot longer and uses up a lot more court time to go through old-fashioned extradition.”
There were also “more grounds for opposing” an extradition being conducted with a non-EU member state. It was “certainly possible” this would result in some suspects avoiding extradition from the UK to Ireland or vice versa.
“The thing about the European arrest warrant is that it’s a worked-out system; it’s harder to find holes in. But if you have some new system [it would be tested by lawyers] and it would be a while before that settles down.”
Mr Justice Clarke was speaking to The Irish Times after addressing the Institute of International and European Affairs (IIEA) in Dublin. The theme of his address was the opportunities for the Republic in dispute resolution post-Brexit.
At present, the UK is a popular destination for dispute resolution, including within international companies with assets and activities across many jurisdictions. However, it is unlikely that rulings from the British courts would apply through the EU, as they do at present, after Brexit, Mr Justice Clarke said.
And this presents Ireland with an opportunity to take a large portion of the estimated £1 billion annual conflict resolution business in the UK. Once corporations have clauses in place providing for the Republic to be used as a location to resolve any conflict, then they could come here for that purpose, he said.
As the only common law country in the EU after Brexit and the only EU member state with English as first language, the Republic could be very attractive with corporations from other common law English-speaking countries such as Canada and the US.
However, the UK had often raised common law concerns when EU legislation was being framed, the Chief Justice said. That was work the Republic benefitted from as the only fully common law country in the EU. But post-Brexit it would fall to Ireland to raise any concerns from a common law jurisdiction perspective.
He said this meant Irish diplomats and civil servants would need to work to ensure that EU legislation took account of the common law perspective so that it would work when transposed into law in the Republic.
It was also crucial members of the judiciary were involved in working groups and sub committees to ensure those framing European law heard and understood the common law perspective.
Mr Justice Clarke said this was already leading to shortages of judges in the Republic for periods while some were in the EU participating in sub committees or working groups. And the demands were mainly being placed on High Court judges or higher.
The common law legal system was much more expensive, he also said. And processes, including bringing legal challenges before the courts, could be so much more expensive in Ireland or the UK compared to elsewhere in Europe.