Supreme Court dismisses surrender stay application as CJEU already answered identical Brexit questions in R.O.

THE SUPREME COURT

Clarke C. J.

O’Donnell J.

MacMenamin J.

Dunne J.

O’Malley J.

In the matter of the European Arrest Warrant Act 2003 (As amended)

And

In the matter of Thomas Joseph O’Connor

Between/

The Minister for Justice and Equality

Applicant/Respondent

And

Thomas Joseph O’Connor

Respondent/Appellant

Judgment delivered by the Chief Justice, Mr. Justice Clarke, on the 9th October 2018

1. Introduction

1.1 The lengthy previous history of these European Arrest Warrant proceedings is set out in a number of previous judgments of this

Court (Minister for Justice and Equality v. O’Connor [2017] IESC 21; [2017] IESC 48 and [2018] IESC 3). As appears from the most

recent of those judgments, an application was brought on behalf of the Respondent/Appellant (“Mr. O’Connor”) seeking to have a

previous order providing for his surrender to the United Kingdom vacated on the basis of an argument which derived from the United

Kingdom’s imminent departure from the European Union (“Brexit”). For the reasons set out in that judgment, this Court considered that

it was appropriate to refer certain questions of European law to the Court of Justice of the European Union (“CJEU”) under the

provisions of Article 267 of the Treaty on the Functioning of the European Union. In that judgment, this Court also made reference to

the fact that there were a number of cases in the High Court which were held up pending the decision of this Court in relation to the

application. That fact, coupled with the potential impact of the case on other areas of the law and indeed on international relations,

led this Court to request that the preliminary reference be dealt with by the CJEU under the urgent preliminary ruling procedure (“PPU

procedure”). The CJEU did not accede to that request.

1.2 However, in the meantime, a different case involving at least a similar issue came before the High Court in circumstances where,

unlike the case of Mr. O’Connor, the person concerned was in custody. In those proceedings the High Court judge (Donnelly J.) was

persuaded that she too should refer almost identical questions to the Court of Justice in order to enable her to resolve the case in

question (Minister for Justice, Equality and Law Reform v. R.O. [2018] 2 I.L.R.M. 199). The High Court also requested that this

reference be dealt with under the PPU procedure, on the basis of para. 4 of Article 267 TFEU which refers to the CJEU’s obligation to

act “with the minimum of delay” in respect of a preliminary reference concerning a person in custody. The CJEU decided to grant the

request that the reference be dealt with under the urgent procedure.

1.3 The Court of Justice has recently given judgment in that case (R.O. (Case C-327/18 PPU) EU:C:2018:733). In substance, the

answers given were unfavourable to the case made on behalf of Mr. R.O. to the effect that his surrender should not take place by

virtue of the impending Brexit.

1.4 Against that background an issue has now arisen as to whether, in the view of this Court, it continues to be necessary to obtain

the answers sought from the CJEU in these proceedings in order to resolve the issue currently before this Court. This judgment is

directed to that question.

2. Recent Procedural History

2.1 As noted above, in the present case the request made by this Court to the CJEU to have the reference dealt with under the PPU

procedure was refused, whereas in the R.O. case that request was granted. That being so, a stay was placed on the current

reference by the President of the CJEU until the Court had delivered its decision in R.O. Following the delivery of that decision, the

CJEU contacted this Court by letter dated the 21st September 2018, to inquire as to whether it was intended to maintain the

preliminary reference in the present case. In that context, it should be noted that Mr. O’Connor’s solicitors contacted the Registry of

the CJEU in response to the judgment of the Court in R.O., in effect stating that there were significant differences between the case

made on behalf of R.O. and those which Mr. O’Connor would seek to advance, as well as suggesting alleged oversights in the

judgment of the CJEU.

2.2 One further matter should be noted. After what might be described as the parallel reference by the High Court to the CJEU had

been made in R.O., counsel on behalf of Mr. O’Connor made an application to this Court on the 27th June 2018 which in substance

sought that this Court might require the applicant/respondent (“the Minister”) to seek to have the reference in these proceedings

joined with the reference in R.O. The principal basis put forward by counsel on that occasion was an expressed concern that the

arguments which Mr. O’Connor might wish to put forward might not be the same as those which would be advanced on behalf of R.O.

In a context where the CJEU had admitted the R.O. case into the PPU procedure but had not done likewise in respect of Mr.

O’Connor’s case, it was anticipated that the CJEU was likely (as transpired to be the case) to give judgment in R.O. before Mr.

O’Connor’s case. On that basis it was feared that the arguments which Mr. O’Connor might wish to put forward would not be

considered before a final decision on the issues of principle was made.

2.3 However, in a ruling delivered on the day in question, this Court indicated that it would be inappropriate to take any step which

might have the effect of delaying the R.O. proceedings before the CJEU, which, at the time when the application in question was

heard, were already listed for early hearing. The Court took that view not least because Mr. R.O. was in custody solely on the basis

of his pending surrender to the United Kingdom, such that he was entitled to be released if there were a legal impediment to that

surrender. Thus, any delay in the final resolution of Mr. R.O.’s proceedings, should they have been favourably decided from his point

of view, would have led to him being in custody for longer than was necessary.

2.4 There being no practical way in which it would have been possible for Mr. O’Connor’s case to “catch up” with the R.O. case, even

if the CJEU were persuaded that it were appropriate to join the cases in some fashion, this Court declined to make any order or give

any direction.

2.5 However, that same question, being the issue arising out of what were said to be the separate arguments which Mr. O’Connor

wished to make, has now returned to this Court in the light of the position adopted on behalf of Mr. O’Connor when the matter was

before this Court to consider what action it should take in the light of the decision in R.O.

3. Mr. O’Connor’s Case

3.1 In substance, Mr. O’Connor argues that the Court of Justice was wrong in the decision which it made in R.O. or, alternatively,

that R.O. cannot be said to provide a definitive determination of the legal issues concerned. This is so, it is argued, having regard to

the fact that certain arguments which are sought to be put forward on behalf of Mr. O’Connor were not considered by the CJEU or, if

considered, were not determined in the judgment of that Court.

3.2 On that basis, it is argued that this Court should allow the reference in these proceedings to go ahead in the ordinary way so as

to enable Mr. O’Connor to make an argument to the effect that the Court of Justice should revisit the issue.

4. Discussion

4.1 The starting point has to be to observe, as already noted, that the questions posed to the Court of Justice in R.O. were

substantially identical to the questions posed in this case.

4.2 I am aware of the reasons why the CJEU is reluctant to adopt the PPU procedure save in cases where same is absolutely required

in the interests of justice. Unlike the expedited procedure, the process followed in a PPU involves omitting certain parts of what would

otherwise be the normal procedure before the CJEU, such that it might be considered to give rise to a situation where it might be

more difficult for other member states to intervene effectively in the process. Given that judgments of the CJEU interpret European

law for the purposes of all member states there is, of course, a high value on ensuring that all member states have the ability fully to

participate in any issues before the CJEU on foot of a preliminary reference which, it might be considered, could affect the position

within their own jurisdiction.

4.3 On that basis, I understand the reasons why the CJEU determined to proceed under the PPU procedure in R.O. but not in Mr.

O’Connor’s case.

4.4 However, there will always be difficulties where there are parallel cases involving the same, or substantially the same, issues, but

where the precise legal arguments which one party may wish to put forward may differ from those which a party in like position in

other proceedings may wish to advance. If all cases are considered together then any court having carriage of the relevant

proceedings can consider all points before coming to a conclusion. On the other hand, if the cases are considered consecutively there

may be complaint, as here, from a party that a legal issue has been determined in the earlier case without proper consideration of an

argument which it wished to advance.

4.5 Most legal systems have techniques in place to minimise such risks but there will inevitably be a possibility, in any legal regime,

that issues of principle will come to be determined and settled in earlier proceedings in a way which will materially affect cases which

come before the courts at a later stage. This may be so irrespective of whether the decisions in earlier cases may, as is the case in a

common law system, be regarded as substantively binding under the stare decisis principle, or whether the earlier cases may simply

come to establish a settled case law from which courts are not likely to depart in later cases.

4.6 However, it seems to me that there are two critical points to be taken into account in the particular circumstances of this case.

The first stems from the fact that the questions posed by this Court are, for all practical purposes, identical to those posed and

answered in R.O. For the reasons already pointed out in previous judgments of this Court, the current position is that, unless there be

a favourable answer to those questions from the perspective of Mr. O’Connor, his application to be allowed to revisit the question of

his surrender to the United Kingdom on Brexit related grounds would have to be found against him and the order of surrender

executed. But those questions have now been answered, albeit in other proceedings, in a way which is unfavourable to his interests.

4.7 Next, it seems to me that the overriding fundamental principle identified in the jurisprudence of the CJEU in matters such as this is

that surrender should be ordered by a requested State unless, after a proper examination by the courts of the requested State, there

is a real risk that the rights of the individual concerned will not be respected, should surrender be ordered. In that regard, reference

must be made to the recent jurisprudence of the CJEU, and in particular the decision of the Court in Aranyosi and Cãldãraru (Cases

C‑ 404/15 and C‑ 659/15 PPU) EU:C:2016:198 which concerned the alleged incompatibility of detention conditions in the relevant

issuing member states with fundamental rights, in particular the prohibition on torture and inhuman or degrading treatment enshrined

in Article 4 of the Charter of Fundamental Rights of the European Union (“the Charter”). The CJEU concluded as follows at paragraph

104:-

“It follows from all the foregoing that the answer to the questions referred is that Article 1(3), Article 5 and Article 6(1) of

the Framework Decision must be interpreted as meaning that where there is objective, reliable, specific and properly

updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are

deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect

certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are

substantial grounds to believe that the individual concerned by a European arrest warrant, issued for the purposes of

conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his

detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of

the Charter, in the event of his surrender to that Member State. To that end, the executing judicial authority must

request that supplementary information be provided by the issuing judicial authority, which, after seeking, if necessary,

the assistance of the central authority or one of the central authorities of the issuing Member State, under Article 7 of

the Framework Decision, must send that information within the time limit specified in the request. The executing judicial

authority must postpone its decision on the surrender of the individual concerned until it obtains the supplementary

information that allows it to discount the existence of such a risk. If the existence of that risk cannot be discounted

within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought

to an end.”

(Emphasis added)

4.8 The Grand Chamber of the CJEU subsequently relied on that decision in its judgment in Minister for Justice and Equality v. L.M.

(Deficiencies in the system of justice) (Case C-216/18 PPU) EU:C:2018:586 which concerned issues relating to alleged deficiencies in

the system of justice and the rule of law of and in the requesting state. The Court stated at paragraph 60:-

“Thus, where, as in the main proceedings, the person in respect of whom a European arrest warrant has been issued,

pleads, in order to oppose his surrender to the issuing judicial authority, that there are systemic deficiencies, or, at all

events, generalised deficiencies, which, according to him, are liable to affect the independence of the judiciary in the

issuing Member State and thus to compromise the essence of his fundamental right to a fair trial, the executing judicial

authority is required to assess whether there is a real risk that the individual concerned will suffer a breach of that

fundamental right, when it is called upon to decide on his surrender to the authorities of the issuing Member State (see, by

analogy, judgment of 5 April 2016, Aranyosi and Cãldãraru, C‑ 404/15 and C‑ 659/15 PPU, EU:C:2016:198, paragraph 88).”

(Emphasis added)

4.9 Finally, reference might be made to the conclusion of the CJEU in R.O. itself, where, after reference to the above authorities, it

was concluded at paragraph 62:-

“The answer to the questions referred is, therefore, that Article 50 TEU must be interpreted as meaning that mere

notification by a Member State of its intention to withdraw from the European Union in accordance with that article does

not have the consequence that, in the event that that Member State issues a European arrest warrant with respect to

an individual, the executing Member State must refuse to execute that European arrest warrant or postpone its execution

pending clarification of the law that will be applicable in the issuing Member State after its withdrawal from the European

Union. In the absence of substantial grounds to believe that the person who is the subject of that European arrest

warrant is at risk of being deprived of rights recognised by the Charter and the Framework Decision following the

withdrawal from the European Union of the issuing Member State, the executing Member State cannot refuse to execute

that European arrest warrant while the issuing Member State remains a member of the European Union.”

(Emphasis added)

4.10 Therefore, a mere theoretical possibility of impairment of rights is not sufficient to override the obligation to surrender.

4.11 The only potential infringement of his rights, deriving from Brexit, suggested by Mr. O’Connor concerned the rule on specialty and

the question of credit for time served in prison. However, both of these matters were the subject of information sought in the R.O.

proceedings by the CJEU from the U.K. authorities and, as appears from the judgment of the Court in that case, answers were given

which satisfied the CJEU that there was no real risk of breach of rights. I cannot, therefore, see that there is any basis for this Court

holding that there is a real risk that any rights which Mr. O’Connor may have will not be fully respected should he be surrendered to

the United Kingdom.

4.12 This Court has already determined the questions which require to be answered by the CJEU in order that the Court be able finally

to dispose of Mr. O’Connor’s application. Identical questions have now been answered by the CJEU. It follows that, unless there were

a real possibility that the CJEU might be persuaded to answer those identical questions in a different way in the reference in this

case, there would be no point in inviting the CJEU simply to answer the same questions again.

4.13 The key question advanced to the CJEU was as to whether, in all the relevant circumstances, the effect of Brexit was to

prevent surrender either in all cases, no cases or in certain circumstances only. In essence, the answer of the CJEU was to say that

it was possible that Brexit might prevent surrender but only where there were substantial grounds to believe that the person

concerned was at risk of being deprived of rights recognised by the Charter and the Framework Decision.

4.14 For the reasons already analysed I am not of the view that any such substantial grounds have been substantiated not least

because many of the points sought to be relied on in that regard were themselves the subject of debate and decision in R.O. It

follows in turn, in my view, that Mr. O’Connor’s application to this Court would require to be refused unless there was a realistic

possibility that the CJEU might be persuaded to give different answers to the questions raised in the reference in this case to those

which have already been given in answer to the almost identical questions in R.O. It seems to me that it is highly unlikely that this

would occur but ultimately that may well be a matter that the CJEU itself may need to consider.

4.15 In those circumstances, I am not satisfied that it continues to be necessary for this Court to continue to seek the answers to

the questions raised in the reference already sent to the CJEU. Against that background it is appropriate to consider what course of

action the Court should adopt.

5. The Proposed Course of Action

5.1 What I would propose in those circumstances is that this Court should respond to the letter from the CJEU by enclosing a copy of

this judgment and indicating that, in the view of this Court, the questions which this Court has sought that the CJEU should answer in

these proceedings have in fact been answered by the judgment of the CJEU in R.O. It remains open to Mr. O’Connor to seek to

persuade the CJEU that R.O. was wrongly decided. However, that possibility should not afford Mr. O’Connor a significant

postponement of his surrender unless he can make some immediate and material progress in persuading the CJEU to re-consider the

issues which have already been decided in R.O.

5.2 In those circumstances, I would propose that this matter be put in for mention in approximately four weeks’ time on the

understanding that, unless Mr. O’Connor pursues the issues concerned by making further immediate submissions to the CJEU inviting it

to remove the stay and continue with this reference, notwithstanding the views of this Court and notwithstanding the decision of the

CJEU in R.O., and unless the prospect of the CJEU re-opening the questions raised and answered in R.O. remains alive, this Court will

consider whether it should dismiss Mr. O’Connor’s application and re-affirm the order for surrender already made.