Supreme Court allows appeal on EAW surrender, rejecting likely sentence as a valid proportionality consideration.

THE SUPREME COURT

Appeal No. 097/2012

Denham C.J.

Murray J.

O’Donnell J.

McKechnie J.

MacMenamin J.

[High Court Record No. 2010 161 EXT.]

In the Matter of the European Arrest Warrant Act 2003 as Amended

Between

Minister for Justice and Equality

Applicant/Appellant

and

Jaroslaw Ostrowski

Respondent/Respondent

Judgment of Mr Justice William M. McKechnie delivered on the 15th day of May, 2013

Background:

1. This appeal raises a point of law on the workings of the surrender provisions of the European Arrest Warrant Act 2003, as

amended, and of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedure

between Member States (2002/584/JHA), which Decision, the Act was designed to give effect to. In this judgment the Act, together

with the amendments introduced in 2005 and 2009, but not those introduced in 2012, which due to their date of enactment are not

applicable, are referred to as the “2003 Act” or “the Act”, unless otherwise stated. The EU measure is simply referred as the

“Framework Decision” or “the Decision” which for the purposes of this case, remains unaffected by the several amendments

subsequently made.

2. The circumstances under which a party may appeal to this Court from a decision of the High Court made under subs.(1) or (2) of

s.16 of the 2003 Act, are severely circumscribed in that, as a statutory precondition, the trial judge must be satisfied that the order

or decision in question gives rise to a point of law of exceptional public importance and that it is desirable in the public interest to

have it determined by the Supreme Court (s.16(11) of the Act). Evidently, it is a jurisdiction which by its terms will apply infrequently

but when occasioned, the issues are likely to be significant. Accordingly, in framing the intended question, care must be taken to

ensure that, as reasonably interpreted, the question accurately reflects the true concern of the trial judge, having regard to the

context of the issue falling for his or her determination. Whilst this Court undoubtedly has the power to recast what is being asked

and may do so if it is necessary to reflect any key point, nonetheless, this facility should not be regarded as a substitute for fully

engaging with the issue in the first instance, particularly as the trial judge will have first hand experience of the underlying difficulty.

3. In this case, the question certified reads as follows:

“Is the issue of proportionality a matter solely for consideration by the issuing judicial authority when deciding whether to

issue an European Arrest Warrant hereinafter (“EAW”) or is the High Court in Ireland entitled to consider proportionality at

a point in time when it is considering whether to surrender a respondent on foot of an EAW?”

4. It seems clear from the submissions that some controversy arose in the High Court about which issue(s) should be certified and by

which form of wording. According to the respondent’s submission, the Minister for Justice and Equality (“the Minister” or “the

Appellant”) described in open court what was certified as a “trick question”, and is now seeking to disregard it by addressing his

appeal submission to a different formulation of words with a different meaning; which can be summarised as asking:

(a) whether the High Court on a surrender application, “is obliged and/or entitled to consider whether a decision to

surrender would be proportionate in all the circumstances of the case?” [emphasis added];

(b) whether the 2003 Act and the Framework Decision entitle and/or oblige the High Court when conducting such an

exercise, to consider the likely sentence which the affected person may receive on conviction for the offence in question;

and

(c) whether the High Court was correct, in fact and in law, in concluding that, having regard to the nature of the

offence, the delay involved and his family circumstances, the respondent’s rights under Art.8 of the European Convention

on Human Rights (“the Convention”) would be violated if his surrender was ordered.

5. Whilst entirely rejecting the Minister’s assertion, if such was so stated or even implied, nevertheless I am satisfied that to answer

the question as literally drafted would fail to meet the rationale of its certification in the first place. Indeed, the correctness of the

assumption inherent in the question, that “proportionality” in some form must be applied by the requesting judicial authority, a premise

no doubt based on the views of the learned judge set out at p.23 of his judgment (para.23 infra), is anything but certain. In any

event, as this judgment will show, it will be more informative to consider whether, by applying the relevant provisions of the 2003 Act

and, insofar as permitted thereby, those articles (including recitals) of the Framework Decision which are material, and having due

regard to general principles of law, the High Court, when exercising its s.16 jurisdiction, can or must, by reference to the principle of

proportionality:

(1)

(a) assess the Constitution or Convention rights of the affected person, being those asserted on his behalf, if so;

(b) what matters are relevant to such assessment, in particular can regard be had to:

(i) the importance of the offence;

(ii) the likely sentence on conviction;

(iii) the cost and burden on the requested State in the execution of the warrant, and more generally;

(iv) those factors which existed at the issuing stage, and

(2) consider the totality of circumstances existing at both the time of issue and of execution even where no such

Constitution or Convention rights are involved.

6. In addition further issues may arise such as: what is the correct approach of the court on a surrender application where a test of

proportionality is applicable, how should the public interest in the process be measured, how should individual rights be assessed,

what additional factors to those mentioned are relevant and irrelevant, such as, in the instant context, the likelihood of bail being

obtained pending trial and any avoidable delays in the process. Finally, the court is asked to say whether the ultimate decision of the

High Court is correct in fact and in law.

7. As the individual facts of the case touch little on the issues of principle, I will defer a consideration of these until I have addressed

such principles. At this point of the judgment, all that needs to be said is that the respondent, his parents, brother and sister moved

to Ireland in 2004 from Poland where he and his family had been born and had previously lived. They have made their new home in this

country and intend to reside here indefinitely/permanently. Having returned to Poland for a week’s holiday in May 2006, Mr Ostrowski

was stopped by a member of the police and allegedly, was found to have in his possession 0.72 grams of marijuana. He was

questioned but not detained. An EAW accusing him of self possession of this drug in that quantity was issued by a judicial authority

on the 7th day of January, 2009. That warrant was found to be defective and his discharge was ordered by the High Court following a

judgment to that effect on the 19th day of March, 2010. A second EAW relating to the same alleged offence was issued on the 15th

day of April, 2010. On the s.16 hearing (paras.18 & 19 infra), the High Court, held inter alia that the respondent’s Art. 8 family rights,

as enjoyed in this country, were engaged, and having balanced a number of factors – including the unlikelihood of a custodial

sentence being imposed, the difficulties in obtaining bail in Poland and the cost and burden on the State of this foreign process –

against the public interest in the respondent’s forced return, refused to make the order as sought. In essence, the learned judge,

having considered “all of the circumstances”, applied a “proportionality test” or a “proportionality type test”. From that decision the

Minister successfully persuaded the trial judge to invoke the provisions of s.16(11) of the Act and hence this judgment on the

resulting question.

Framework Decision:

8. The purpose and objective of the Framework Decision, which can be readily extracted from a consideration of its recitals, in

particular Recitals 5, 6, 7, 8, and 10, have been set out in several judgments of both the High Court and this Court, which I gratefully

adopt (see In the matter of an inquiry pursuant to Article 40.4.2 of the Constitution of Ireland. S.M.R. v. The Governor of Wheatfield

Prison [2010] 1 I.R. 141, paras.5 and 6, Dundon v. The Governor of Cloverhill Prison [2006] 1 I.R. 518, pp.521 to 523 (“Dundon”) and

The Minister for Justice, Equality and Law Reform v. Altaravicius [2006] 3 I.R. 148, pp.153 and 154 (“Altaravicius”)). Therefore, whilst

I do not propose to repeat these objectives, nonetheless a few observations are in point:

(a) the existing formal extradition arrangements and procedures, whether bilateral, multilateral, or existing under Title III

of the 1990 Convention implementing the Schengen Agreement of 14 June 1985 on extradition, or otherwise howsoever

made, were to be abolished (Recital 11), and in their place was created a system of surrender between judicial authorities

of Member States. This system had nothing whatsoever in common with its predecessor save as to result, namely an

affected person is returned to the requested country to face prosecution or, following a verdict by plea or decision, to

serve the whole or some balance of an imposed sentence. Otherwise, at every level of core importance there is a distinct

and marked divergence, new from old.

(b) the system of “free movement of judicial decisions”, issued by judicial authorities in this area, was one based on

implementing the principle of mutual recognition which the European Council has described as the “cornerstone of judicial

cooperation” (Recital 6). A high level of conference and respect was the reciprocal essence upon which this system was

founded (Recital 10).

9. An excellent and concise overview of the change effected is to be found in the opinion of Advocate General Colomer in Advocaten

voor de Wereld VZW v. Leden van de Ministerraad (Case C – 303/05) [2007] E.C.R. I-3633 (“Advocaten voor de Wereld”). At

paras.41-43 he said:

“41. The move from extradition to the European arrest warrant constitutes a complete change of direction. It is clear that

both concepts serve the same purpose of surrendering an individual who has been accused or convicted of an offence to

the authorities of another State so that he may be prosecuted or serve his sentence there. However, that is where the

similarities end.

42. In the case of extradition, contact is initiated between two sovereign States, the requester and the requested, each

of which acts from an independent position. One State asks for the cooperation of the other State which decides whether

to provide that cooperation on a case-by-case basis, having regard to grounds which exceed the purely legal sphere and

enter into the scope of international relations, where the principle of opportuneness plays an important role. Accordingly,

the intervention of politicians and criteria such as reciprocity and double criminality are justified because they have their

origins in different spheres.

43. The nature of the situation changes when assistance is requested and provided in the context of a supranational,

harmonised legal system where, by partially renouncing their sovereignty, States devolve power to independent

authorities with law-making powers. That approximation, which falls within the scope of the first pillar of the Union, also

operates in the third, intergovernmental, pillar — albeit with a clear Community objective, as was demonstrated in Pupino

— by transferring to framework decisions certain aspects of the first pillar and a number of the parameters specific to

directives.”

10. Article 1.1 of the Framework Decision describes an EAW as a “judicial decision” issued by a Member State. Article 1.2 is addressed

to the executing State, which, by virtue of its provisions, “shall execute” the warrant on the basis of the principle of mutual

recognition and in accordance with the provisions of the Framework Decision. Under Art.6 both the issuing judicial authority (“IJA”)

and the executing judicial authority (“EJA”) shall be the “judicial authority” designated as such by each Member State to discharge

their respective functions. Whilst of no direct relevance to this appeal, the recent decision, by majority, of the United Kingdom

Supreme Court on whether a public prosecutor being also an individual party to the prosecution in question could be said to be a

“judicial authority” within the meaning of its implementing legislation is of note (Assange v. Swedish Prosecution Authority [2012] 2

W.L.R. 1275, (“Assange”)).

11. Article 2.1, under the heading “Scope of the European arrest warrant” states that an EAW “may be issued” either where the

alleged offence carries a minimum of 12 months imprisonment or where a sentence has been given or a detention order has been

made, of at least four months duration. Under Art.2.2 the requirement to establish double criminality is stood down in respect of over

thirty specified offences which carry a maximum sentence of at least three years. Articles 3 and 4 set out respectively the grounds

for mandatory non-execution and optional non-execution. Article 8 outlines the content and form of an EAW which must include

evidence of an enforceable judgment, an arrest warrant, or other enforceable judicial decision having the same effect, coming within

Articles 1 and 2 and must set out the prescribed scale of penalties for the alleged offence(s) under the law of the issuing State

(Art.8.1(c) and (f) respectively).

12. There are of course several other provisions contained within the Decision but such are not required to be set out or otherwise

referred to in this judgment.

13. Before moving to the domestic legislation, it should be noted that both Recital (12) and Art.1.3 of the Decision expressly declare

that as a measure, it respects (i) fundamental rights and (ii) observes the principles recorded in Art.6 of the Treaty on European

Union (“TEU”) and reflected in the Charter of Fundamental Rights (“the Charter” or “CFR”). Under Art.6, post Lisbon, it is noted that

the CFR has the same legal value as the treaties, that the EU shall “accede” to the Convention and that fundamental rights, resulting

from the constitutional traditions common to Member States, shall constitute general principles of EU law.

The 2003 Act – A Brief Overview:

14. As explained more fully later in this judgment, the Framework Decision is binding upon Member States “as to the result to be

achieved but shall leave to the national authorities the choice of form and methods. [It] shall not entail direct effect” (ex Art. 34(2)

TEU provisionally carried over by article 9, Protocol No.36 on Transitional Provisions annexed to the Treaties). As is therefore evident,

without having direct effect, Member States must pass measures to implement the Decision in their individual jurisdictions. That has

been done in this State by the enactment of the 2003 Act.

15. The Act, at least with regard to certain of its provisions, according to Fennelly J. in Dundon “presents unusual features of

interpretation” (p.545), whilst Murray C.J. in Altaravicus, when specifically referring to s.10 but also when clearly having in mind other

provisions, described its interplay with the Decision as “… to say the least, an idiosyncratic method of legislating and likely to create

ambiguity” (p.155). The Oireachtas has responded, at least to some extent, by the enactment of the 2012 Act, but such, for reasons

previously given, has no application to this case. Therefore the difficulties, as identified, continue to exist.

16. Section 2 of the 2003 Act defines an EAW as “a warrant, order or decision of a judicial authority of a Member State”. A “judicial

authority” is defined as a person, including a judge or magistrate, designated as such to perform similar functions to those carried out

by a court in this State when issuing an EAW. An “issuing judicial authority” is a judicial authority in the issuing State and an

“executing judicial authority” is, by virtue of s.9, the High Court.

17. Section 10 of the Act provides that where the High Court, as EJA, has satisfied itself of certain matters the requested person “…

shall, subject to and in accordance with the provisions of this Act, be arrested and surrendered to the issuing State.” This is an

important provision as is s.13 which governs the endorsement of the warrant for execution. Section 11, which deals with the form of

the warrant, s.12 with its transmission, s.14 with the power in certain circumstances to arrest a person without such a warrant, and

s.15 which deals with whether the arrested person consents to his surrender, are all highly important provisions in the overall scheme

of the surrender system, but are not directly in point for this case.

18. Section 16 is however. Its relevant portions provide as follows:

“16 – (1) Where a person does not consent to his or her surrender to the issuing State the High Court may, … make an

order directing that the person be surrendered … provided that –

(a) the High Court is satisfied that the person before it is the person in respect of whom the [EAW] was issued,

(b) the [EAW], … has been endorsed in accordance with section 13 for execution of the warrant,

(c) …

(d) the High Court is not required, under section 21A, 22, 23, or 24 (inserted by 4 sections 79, 80, 81, and 82 of the

Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

(e) the surrender of the person is not prohibited by Part 3.”

The remaining subsections of that section are not in issue save for noting subs.(11) as previously mentioned. Section 18 under which

a person’s surrender can be deferred on humanitarian grounds is not in issue either.

19. It will immediately be evident that the statutory power given to the High Court as to what order it might make at the conclusion

of a s.16 hearing, even if satisfied as to both the affirmative and negative conditions set out in the various sub-paragraphs, lacks any

direction of an imperative nature. Words such as “shall”, “must”, or “will”, normally associated with some type of prescriptive

requirement, are not used. Rather, the phrase is that the High Court “may” make the order for surrender “…provided that…”. Precisely

what this means may at first appear unclear. However, when looked at in light of the wording of Art.1.2 (para.10 supra) and s.10 of

the Act (para.16 supra), it is clear that such does not confer any residual or overriding power to refuse an order when otherwise, a

surrender is indicated. As Denham J. stated in The Minister for Justice, Equality and Law Reform, v. Koncis [2011] I.E.S.C. 37

(“Koncis”) at para.38, “The Courts are not given a general discretionary power to refuse surrender.” Therefore, one may proceed on

the basis, as argued, that unless there is to be found within the Act, the Framework Decision, or general principles of Irish or EU law,

a justifiable reason for refusing surrender, the same should be ordered once the relevant statutory terms and conditions of the Act

have been complied with.

20. The respondent is unquestionably the subject matter of the EAW in question, albeit a second one, and it is accepted that such

warrant has been transmitted and legally endorsed by the High Court in accordance with s.13 of the Act. No challenge is mounted

purely on the basis of the warrant being re-issued, nor could it, in light of the Supreme Court’s decision in Koncis. In addition, it is not

suggested that the prohibitory requirements of ss.21A, 22, 23, or 24 of the Act are in play. The point of engagement therefore,

although not of contest in a strictly adversarial meaning, is centred on the provisions of Part 3 of the 2003 Act.

21. The issue which arises under Part 3 is confined to the provisions of s.37 of the Act; indeed, simply a part of that provision.

Thereunder, a person like the respondent, who otherwise should be surrendered, will not be so if:

“(a) his or her surrender would be incompatible with the State’s obligations under –

(i) the Convention, or

(ii) the Protocols to the Convention,

(b) his or her surrender would constitute a contravention of any provision of the Constitution other than …”.

Consequently, if rights appropriate to the respondent as such, including the circumstances of his positioning, are engaged, being

those found in the Constitution or the Convention, and if his surrender would contravene the relevant constitutional provision or be

incompatible with the State’s obligations under the Convention (abbreviated to “Convention rights”), he must be released. Put simply,

if that act of surrender would violate his fundamental or personal rights under either legal order, he must be discharged. The principle

of proportionality is central to this assessment.

Proportionality:

- The High Court Judgment:

22. The basis upon which the respondent was discharged from the EAW process rested on the views of the learned trial judge

regarding proportionality, in particular his view of what that concept was, what it entailed, where and at what point or points in the

process it should apply and finally, what conclusions should correctly follow from its application. This was the only matter of

substance in the case for if the respondent could not prevent his surrender in this regard, the High Court would unquestionably have

made the order as requested. As in that Court, this issue dominated the appeal and is therefore central to this judgment.

23. At the outset, the trial judge was satisfied that proportionality arose for consideration as a matter of obligation at two distinct

points in the process which he pointed out should not be conflated. Firstly, when an EAW was being issued and secondly, when the

High Court as the EJA was conducting a s.16 hearing. The basis for such requirement in his view rested at both the political and legal

level. The EAW process was never intended to deal with “trivial or petty” offences: to do so would be to act contrary to the spirit of

the Framework Decision. At the legal level, proportionality is a fundamental part of the whole “corpus of EU” law which, by reference

to this particular measure, is expressly reflected in Recital 7 of the Decision (p. 23/24 of the judgment), which states that in

accordance with the principle of proportionality, the Decision does not go beyond what is necessary in order to achieve its objective.

24. However, in respecting the twin pillars of mutual trust and cooperation between Member States on the one hand and of judicial

cooperation and mutual recognition of judicial decisions on the other, it was necessary for the executing judicial authority to presume

that when issuing an EAW, its requesting counterpart had in fact applied such a test. Accordingly, although the presumption was

rebuttable, the same should not be put in issue as to do so would be contrary to the spirit of the Framework Decision. Having so

stated however, it is also implicit in the judgment that any shortcomings in this regard could be reviewed, at least to some degree, as

part of the High Court’s function at the execution stage, for at that point the court could consider as relevant: (i) those matters

taken into account by the issuing authority and (ii) any matters arising since then, being those referable to the fundamental rights of

the respondent.

25. Before identifying in greater detail the factors which the High Court had regard to, two matters of some importance should be

noted. The first relates to the decision in General Public Prosecution Services v. C 1 Ausl. (24) 1246/2010 (OLG Stuttgart) (G.P.S. v.

C) which was a ruling of the Higher Regional Court in Stuttgart, on issues arising out of an EAW where Germany was the executing

authority. The learned judge noted that the court had regard to the individual’s “right to liberty and safety; the cost and effort of a

formal extradition proceeding including extradition arrest; the significance of the charge; the severity of the possible penalty”

[emphasis added] (see para.89 infra for source of case report). He expressed agreement with this approach save for one point where

he substituted the following formulation for that as emphasised, namely “…the cost and burden to those concerned of effecting a

surrender in the particular case” (p.26 of the judgment). The second matter to mention is that whilst the High Court rejected, as a

refusal ground, any application of the de minimis rule or anything akin to it (a submission made by reference to the alleged “triviality”

of the offence), and whilst agreeing that it should not speculate on sentence, nonetheless, went on to say, by reference to the

individual circumstances of the particular offence, that “some weight” should be given to the “inherent unlikelihood” of the respondent

receiving a custodial sentence. Therefore, it seems likely that both matters played, at least some part, in the court’s assessment.

26. In further specifying factors to which regard may be had, the judge referred to the interest of the issuing State on the public or

community side, although surprisingly, no express reference is made to the interests or obligations of this State. He did however

mention, in this context, the case of Norris v. Government of the United States of America (No. 2) [2010] A.C. 487 (“Norris”) and

the decision in HH and Anor. v. Deputy Prosecutor of Italian Republic, Genoa and Ors. [2011] E.W.H.C. 1145 (“HH”), for the purposes

of acknowledging, as he had done so in previous decisions, the views of Lord Phillips in Norris to the effect that the public interest in

extradition weighs heavily (para.51) and those of Laws L.J. in HH that the “‘public interest in extradition is systematically served by

the extradition’s being carried into effect, subject to the proper procedures.” (para.63).

27. From the respondent’s perspective the following were highlighted:

(1) loss of liberty, aggravated by the probable difficulty in obtaining the equivalent of bail in Poland as Mr Ostrowski no

longer has a residential address in that country;

(2) separation from and disruption of family, who have established roots in this country, increased by the possible

hardship on some one or more of them who may travel to Poland with him; and

(3) the delay of 15 months in the execution of the second warrant, which has had the causative effect of lulling him into

a false sense of security, of increasing his stress and anxiety, and of creating uncertainty about his future.

28. Alternative measures open to the Polish authorities, such as seeking the respondent’s voluntary surrender, or trying him in his

absence, were also canvassed as possibly having influence on his side of the assessment. Whilst accepting that it would be

inappropriate to speculate about such matters and that more fundamentally, it would be disrespectful to the Framework Decision to

inquire if such in fact had been considered, nonetheless, the court felt that the absence of any forewarning prior to the issue of the

second EAW and also the failure to seek his voluntary return, were material matters in its s.16 decision.

29. In concluding, the court, having considered “all of the circumstances”, and having noted that the case had “unusual features and

is arguably in a different category” than others, found that “exceptionally”, but by reason of the presenting circumstances, surrender

would not be a proportionate measure. It therefore declined to make the order which the Minister had requested.

- General Principles:

30. It is submitted on behalf of the Minister that this is the first case in which, by reference to the principle of proportionality, a

surrender order has been refused on grounds which include those not heretofore associated with or related to either a Constitution or

Convention right. It is further said that such has involved the application of a widespread and far-reaching form of proportionality

which is not recognised within the legal principles underpinning this process. The respondent disagrees with this proposition and in

support of the trial judge submits that, the approach adopted was fully in conformity with the provisions of the 2003 Act, the

Framework Decision and with general principles of EU law. In addition he says that the same has now been endorsed by a court of a

fellow Member State in G.P.S. v. C and should be followed.

31. Heaney v. Ireland [1994] 3 I.R. 593 (“Heaney”) decided in 1993 is recognised as being the first case which, in an established way,

adopted the principle of proportionality into this jurisdiction, although Barron J. was clearly conscious of the relative balance between

decision, effects and purpose, in Hand v. Dublin Corporation [1989] I.R. 26. A challenge to primary legislation, imposing a restriction

on the exercise of a constitutionally protected right (to silence) was at issue. Since then, the past 20 years have seen the doctrine,

without any essential change to its substance, applied to interferences by various means with rights having different dimensions in

our legal system. Provisions of primary legislation affecting fundamental constitutional rights (Murphy v. I.R.T.C. [1999] 1 I.R. 12 and

North West Health Board v. H.W. [2001] 3 I.R. 622), constitutional rights other than those that are so regarded, for example,

property rights and Convention rights, have all been challenged in this way (Rock v. Ireland [1997] 3 I.R. 484 and In re The

Matrimonial Home Bill, 1993 [1994] 1 I.R. 305). Measures of a secondary nature (Maher v. Minister for Agriculture [2001] 2 I.R. 139),

as well as challenges to administrative decisions (after an “initial wobble”. See Hogan and Morgan, Administrative Law in Ireland, 4th

edn, para.15.130.) by way of judicial review (Warnock v. Revenue Commissioners [1986] I.L.R.M. 37 and Gallagher v. The Director of

the Central Mental Hospital and Ors (No. 2) [1996] 3 I.R. 10) and by way of an appeal (Balkin Tours Ltd v. Minister for

Communications [1988] I.L.R.M. 101) have all readily attracted the concept. Administrative schemes have likewise been evaluated in

the same way (Rafferty & Anor v. Minister for Agriculture and Food and Rural Development & Ors [2008] I.E.H.C. 344). In essence,

its presence is now clearly discernable in a multitude of circumstances as described in the case law. It is therefore, at the level of

principle, recognised as being fully embodied in Irish law and is an established rule of domestic jurisprudence.

32. It is worthy of note that a core objective which motivated its creation was the establishment of a criteria, whose structure and

use is more rational and more objectively verifiable than the more subjective concept of reasonableness, by which a measured

balance could be had and retained between the public benefit of a given decision and the harmful effects of that decision on the

affected individual. Proportion is key in such regard.

33. The test in a sense is both permissive and restrictive. Action by a variety of bodies on behalf of the public is of course both an

inherent and an indispensable feature of modern society. When such impacts on fundamental rights however, a principle value of

democracy (freedom) is diminished. It is essentially as important to the citizen that such diminution is as minimal as possible, as it is

to have the measure activated in the first instance. Means, at judicial level, are required to evaluate and to achieve this balance.

One measure and one of increasing importance in this armoury is, as I have said, proportionality.

34. Although it is self-evident from the context under discussion, that the doctrine of which I speak is essentially one which operates

in the public law domain, as a judicial tool to assess the lawfulness, of measures adopted by or decisions or actions taken on behalf of

the legislative or executive branch which impact upon the exercise of rights otherwise enjoyed, nonetheless, the distinction between

proportionality having that meaning and any other should be noted, such as where the term can be substituted with descriptive

expressions such as “appropriate”, “suitable”, “befitting” or the like. See Lynch v. The Minister for Justice, Equality and Law Reform

and Ors., (“Lynch”) and Whelan v. Minister for Justice, Equality and Law Reform and Ors. both reported at [2010] I.E.S.C. 34. It may

well be that it also has other meanings with even greater (or lesser) breadth than the last analysis implies. It now has several specific

positions in EU law, one of which is Art.49(3) of the Charter (para.82 infra). Whilst some concern may be had regarding its possible

inappropriate or excessive use or indeed its outright misapplication, whether by virtue of subject matter, circumstance or otherwise,

nonetheless, it is quite a valuable assessment method and should be so treated. Furthermore, there is a powerful value in its name,

identity and recognition which adds to its intrinsic impact, and therefore, even where readily interchangeable with other expressions, I

would be quite slow in dropping its nomenclature. Whilst such may lack the impressive ancestry of the epithet “natural” in the phrase

“natural justice”, nonetheless it has a particular signification, and thus its widespread use should be maintained. Provided its meaning

is properly understood in a given context, any misunderstanding can be avoided.

35. Heaney described what the notion of proportionality intended, its essential features, and the purpose of its utility. At p.607 of the

report, Costello J. gave the following description:

“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally

protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen

must pass a proportionality test. They must:-

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible, and

(c) be such that their effects on rights are proportional to the objective: Chaulk v. R. [1990] 3 S.C.R. 1303 at

pages 1335 and 1336.”

Although Heaney was appealed to the Supreme Court, the judgment of Costello J. remains the cited source whenever these principles

are discussed.

36. Although there is always a danger in attempting to summarise a principle, which is better known and much understood by its

complete text, nonetheless, without such, judgments would run infinitely. Therefore, may I say that the principle examines the

objectives (and their legitimacy) of a given decision and the impact on the rights which it affects, and measures the correlation

between both. If the result, having correctly valued the competing interests, lacks balance, the measure may be condemned. At a

more formal level it can be said that this assessment review, involves the following four elements: legitimate objective, rational

connection, minimal impairment, and overall balance (Brady, “Proportionality, Defence and Fundamental Rights in Irish Administrative

Law: The Aftermath of Meadows” 2010 1 D.U.L.J 136-171). When correctly applied, the justification for the conclusion preferred,

should be both evident and transparent.

37. Finally in this context, it should be noted that the court was not asked by either party to consider or engage with the recent

important decision of Meadows v. Minister for Justice, Equality and Law Reform and Ors. [2010] 2 I.R. 701. Therefore further

comment in this regard is not required.

Particularising the Complaint:

38. As above stated (paras.20 & 21), the assertion advanced on behalf of the respondent is that his surrender is prohibited by s.37 of

the 2003 Act in that, such an order would be an unjust and disproportionate interference, with rights enjoyed or capable of being

enjoyed by him, in this jurisdiction under the Constitution and the Convention. Whilst there is a reference to EU law, such has not

been expanded upon. Without specifying any individual article of either the Constitution or the Convention, the right to liberty, the

right to physical and mental health, and the right to respect for family life are mentioned. Apart from a general assertion of “increased

stress” and some non specific “uncertainty” about his future, the respondent has wholly failed to particularise, or offer evidential

support, regarding his health. In respect of his liberty, he is obviously correct in saying that such has, or will be, curtailed. In this

jurisdiction he was arrested and detained for a period of hours before being conditionally released which of course must still be

recognised as constituting a deprivation of liberty, despite the un-restricted nature of the terms imposed. In addition, if a surrender

order is made he may, or will, be further detained but clearly only for the shortest period necessary to give effect thereto.

Consequently, in this particular case the extent of the interference with such right is, at a practical level, the most minimal possible

to respond to the EAW, and at a legal level is, entirely justified by virtue of the public interest in such process; a conclusion also fully

supported by the express provisions of Art.5(1) of the Convention. Therefore, subject to the following point, the essential basis of his

resistance is not one grounded in the Constitution but one referable to an alleged violation of Art.8, in respect of family rights.

39. There is a reference in the High Court to the difficulty which the respondent may possibly encounter in obtaining bail, pre-trial, if

surrendered, because of having no residential address in the jurisdiction of the issuing State. It is not quite clear what influence that

observation had on the ultimate decision. If any, it must be presumed to have been included in the balancing assessment of the

respondent’s circumstances for the purposes of Art.8. Its only other possible use might be in the context of some suggestion that if

returned, his Art.5 rights may be infringed. If that was the intention, which I very much doubt, it would have to be rejected. There

are several reasons for this. Firstly, there is no suggestion that the bail laws in Poland, in and of themselves, and in respect of which

no details have been supplied, are such as to engage Art.5. Secondly, it is not claimed that within such laws the respondent would be

treated any differently to others in a similar situation. Thirdly, such a proposition, if sustainable, would have the effect of entirely

nullifying the operation of the EAW process in respect of a great number of people who would not, in the ordinary course of events,

be likely ever to have had, or to have retained, a residential address in the jurisdiction of an issuing State. Finally, even to assert an

arguable case in this regard, it would be necessary to evidentially establish that by virtue of such laws there is a present and existing

substantial risk that liberty would be flagrantly denied. This test was applied in Soering v. United Kingdom [1989] 11 E.H.R.R. 439

(“Soering”), which although an Art.3 case must equally apply to Art.5 cases. Accordingly, I am satisfied that in reality this is solely an

Art.8 case.

40. The respondent avers in his Affidavit evidence, to a number of matters by virtue of which, he asserts an interference with his

Art.8 family rights. Let me assume, without at this stage further comment, that what is alleged is sufficient “to engage” with the

rights which are mentioned. Consequently, the jurisprudence from the European Court of Human Rights (“ECtHR” or the “Strasbourg

Court”) will be most pertinent. In this regard, the general practice of following the consistent jurisprudence of that Court, save for

special reason, should be noted; as should s.2 of the European Convention on Human Rights Act 2003, to the effect that, when

interpreting and applying any rule of law the courts, subject to domestic interpretive rules, must do so in a Convention compliant

manner. Section 4 of the same Act further provides that, when applying a Convention principle, due regard must be had to the

judgments of the ECtHR.

Article 8 of the Convention:

41. Article 8 reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests of national security, public safety or the economic

wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the

protection of the rights and freedoms of others.”

42. The case law from the ECtHR on the provisions of this article, speaking only in the context of extradition/surrender, suggest that

an examination of circumstances should be conducted by reference to a number of questions, which in their phraseology may

somewhat change, but in their substance will not. These can be stated as:

(i) is or will there be an interference, in this instance via surrender, by a public authority with the exercise of the

respondent’s right to respect for his family life?

(ii) if so, is that interference in accordance with law?

(iii) if so, does that interference have the consequences of potentially engaging with Art.8 rights?

(iv) if so, is such interference necessary in a democratic society, i.e. does it fulfil a pressing social need, such as in this

case the prevention of disorder or crime and/or for the protection of the rights and freedoms of others?

(v) if so, is such an interference a proportionate response to the legitimate public aim sought to be pursued?

One of many cases where these factors were considered is Buckley v. UK [1996] 23 E.H.R.R. 101. See also the comments of Baroness

Hale in the Supreme Court decision in HH v. Deputy Prosecutor of Italian Republic, Genoa and Ors. [2012] 3 W.L.R 90 at para.30

incorporating this sequential approach into UK domestic law.

43. In practice, little if any real difference exists between what Heaney ordained and what the Strasbourg jurisprudence shows. That

the measure in question should have a high level of importance and that the outcome of its individual application should have no

greater impact than what is necessary to achieve its underlying objective, are evidently inherent in both, as is the relationship

between “means” and “aims”. Whilst frequently the phrase “a fair balance” is used as between individual and community interests

(Dickson v. United Kingdom (2008) 46 E.H.R.R. 41 (“Dickson”), Iosub Cara v. Romania (2008) 47 E.H.R.R. 35) such has no meaning

different to that which is stated. Subject therefore to the margin of appreciation, which does not affect how these principles are

stated, there is a very close similarity between both.

44. Furthermore, very much the same formulation is used in the United Kingdom. The judgments in R.(On the Application of Razgar) v.

Secretary of State for the Home Department [2004] 2 A.C. 368 (“Razgar”), an immigration case where removal was resisted on Art.8

grounds, and in Huang v. Secretary of State for the Home Department [2007] 2 A.C. 167 (“Huang”), a similar case but with the

important distinction next mentioned, closely reflect such description. Lord Bingham suggested in Razgar at para.17 that the following

should be asked:

“(1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect

for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as

potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is

such interference necessary in a democratic society in the interests of national security, public safety…? (5) If so, is such

interference proportionate to the legitimate public end sought to be achieved?”

Again Lord Bingham in Huang, adopted the definition put forward by the Privy Council in De Freitas v. Permanent Secretary of Ministry

of Agriculture, Fisheries, Lands and Housing [1999] 1 A.C. 69, which described proportionality as asking;

“(i) [whether] the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures

designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or

freedom are no more than is necessary to accomplish the objective”. (para.19)

To remove any doubt about the correctness of this formulation, Lord Bingham also highlighted the requirement of assessing overall

balance (para.19). Although Razgar was a “foreign case”, thus attracting different public interest considerations from Huang which

was a “domestic case” (para.47 infra) nonetheless, the structure of assessment in both is similar. Consequently, it can be readily

accepted that the general test is well established.

45. It will be most unusual to find any challenge mounted in respect of matters referred to at questions nos.(i) and (ii) set out at

para.42 above and perhaps also at (iii), although it should be noted that an impugned measure cannot simply have caused trivial or

inconsequential harm: “to engage” Art.8 rights a minimum level of severity must be established (Costello-Roberts v. UK [1995] 19

E.H.R.R. 112). However, if problems should arise under this heading the trial court should have no difficulty in resolving them.

Essentially therefore, if the proposed surrender order can be said to interfere with an individual’s private or family life, the resulting

controversy will almost always centre on questions (iv) and (v) which, although stated separately, are frequently fused together for

their combined or unitary consideration. In essence, the question will be whether the surrender, in the name of the objective which it

pursues, can be justified when its causative effects on the person’s rights are stood against it? In any given circumstance, will the

interference be proportionate to the legitimate aim advanced in support of it?

46. In this judgment I have used the phrase “to engage” on a number of occasions when referring to the Art.8 claim. I believe that

such is both appropriate and accurate. By its use I mean to convey that the evidence adduced in that regard, has met the minimum

level of severity, as the law requires, which justifies the court in proceeding with an inquiry so as to determine whether the asserted

right has been infringed. It is not to suggest that there has been a breach which calls for justification: it is not even to suggest that

there has been a prima facie breach. It simply means that the individual in question has met the evidential threshold which entitles

him to advance the argument.

47. Before looking at a number of matters which influence the application of the above test, it would be worthwhile to be a little more

specific in identifying what is and what is not under consideration. Firstly, as previously stated, the respondent’s assertion of family

rights are those which he enjoys in this State, not those which he previously enjoyed or is anxious at some future time to once again

enjoy, in Poland. This is an important point as the application of Art.8 differs substantially as between both situations. To apply a

phrase borrowed from Lord Bingham in the joined cases of R(Ullah) v. Special Adjudicator, Do v. Immigration Appeal Tribunal [2004] 2

A.C. 323 (para.9) and the related case of Razgar, the instant case is therefore a “domestic case” as distinct from a “foreign case”.

Secondly, this case is not one involving deportation or expulsion. Again, an obvious point but important to make nonetheless, the

reason being is that the motivation driving the community’s interest in surrender, as distinct from (i) deportation or (ii) expulsion, is

different; therefore the factors will differ. As these are critical in any balancing process, this distinction must be noted. Thirdly, Art.8

of the Convention is a qualified or conditional provision, quite unlike Art.3 in respect of which, if engaged, the prohibition against

torture and other forms of inhuman and degrading treatment, is absolute.

48. The question therefore is whether the curtailment of the respondent’s family rights, in particular by the making of a surrender

order, is justified by society’s interest, in a general sense, in the national prevention of crime and disorder and in a specific sense, in

being a party to an international instrument, implemented by the EAW process, to further such end. No other matter, formal, technical

or otherwise, arises. The High Court wishes to know if its proportionality approach to resolving that issue is appropriate in this

jurisdiction. That is the decisive question which is at the heart of the reference appeal.

49. Lest it should be thought that my earlier comments about the certified question were somewhat pedantic, could I explain a little

further. If I was to respond to the question as posed, in its literal meaning, the answer which I give, in particular to the second part

of the question is, unequivocally yes. The operation of a statutory provision(s) is under review. It is under review because of its

impact on family rights. In a case so defined where fundamental rights are involved, either under the Constitution or the Convention,

a proportionality test is a fundamental tenet in the assessment of the challenge in that regard. This has been the situation for some

time (para.31 supra) and I would be quite surprised if any dissention should now arise in that regard. Therefore, to solely rest one’s

decision on this answer would be uninformative. Viewing the judgment as a whole and looking at the background context, the real

point as I understand it, is not one seeking confirmation of Heaney or of the existing Strasbourg jurisprudence, but rather, is whether

the circumstances permit of a more expansive and inclusive approach than the historical test envisages. If such should exist, at least

in the form discussed in G.P.S. v. C or indeed even otherwise, it would apply at the level of principle to all EAWs, irrespective of

whether fundamental rights were or were not engaged. As a result, every s.16 decision, for its validity, would have to meet such an

overarching, far-reaching and stand-alone test. Is this the law?

Competing Interests: Public/Individual:

50. Before addressing such interests, it may be of value, even a decade later, to say something about the method of approach

involved in such assessment and how the relevant factors should be considered. At the outset it should be noted that when the court

comes to consider the proportionality element of its assessment (if that should arise), it is not engaged in the traditional or historical

exercise of deciding a lis between the parties: this because, there is no question of the extraditee having to discharge any onus of

proof in a legal sense, although of course he does carry an evidential burden, so as to engage with the asserted rights in the first

instance. What the court must seek to do is to strike a fair balance between the competing interests at issue, namely, the right of

the affected person, as assessed through his personal circumstances on the one hand and the interests of the community on the

other. The former, which relate to the severity and consequences of the alleged interference, are almost always exclusively personal,

whilst the latter, are always exclusively public. Both will call for a careful assessment, being fact specific, at the surrender stage. The

importance of the individual in this exercise however, can justifiably be emphasised as his or her circumstances are liable to great

variation whereas those of the State much less. There cannot therefore be any substitute for a detailed appraisal of the personal and

family circumstances of the person in question and of the likely impact which a surrender order may have on their continuing

existence; for it must never be overlooked that rights of prime significance are at issue. Those circumstances must be explored, if

necessary by detailed analysis, for in each case the assessment process is fact specific.

51. It can be said, rightly, that this approach suffers from a sense of generality. Therefore, if a predetermined test could be devised,

being one capable of resolving the issue, I would see merit in this as greater certainty would ensue. However, without unbalancing

the very exercise demanded, it would be a high risk challenge to construct a formula which would be as responsive as the task

demands. Given what is involved, namely an interference with a right correctly and for good reason described as fundamental, the

enjoyment of which is highly personal to the individual and his circumstances, the evaluative approach in my view, is the preferred

one. As was said in EB (Kosovo) v. Secretary of State for the Home Department [2009] 1 A.C. 1159 (“Kosovo”), there is no “hard-

edged or bright-line” rule, fit for purpose in this regard (para.12). Therefore, I am satisfied that such an approach at least for now

cannot be avoided.

52. A further word is this context: in conducting such an appraisal, some have suggested that an incremental approach is to be

preferred (Baroness Hale in HH) as in this way there is little scope for the wrong question or series of questions to be raised: which of

course if asked are more likely to lead to the wrong answer. Others (Lord Mance in HH) have questioned any rigid line of enquiry, as

an individual answer to any given question may distort the ultimate or overall conclusion, which of course would be self-defeating. For

my part, provided all of the relevant circumstances are addressed and some element of cross reference is made, so as to test the

positioning and weight of each factor and the soundness of the ultimate conclusion, I would not have a preference for one approach

over the other. The presenting circumstances of each case, as assessed by the judge, will determine the lead in to this enquiry and

will also dictate the level of consciousness of the overall review. Subject to that however, the essential point to emphasise is the

fluid and composite quality of the exercise, with factors being adjusted, if necessary, to reflect its ongoing and perhaps changing

nature.

Public Interest: How it is Measured:

53. There is no general duty in international law by which a state can be compelled to extradite from its territory a person within it.

Such a requirement stems from obligations freely undertaken, either through bilateral or multilateral treaties or as in this case, by

membership of a collective structure, under which mutual rights and obligations are created. In this context there is without pause or

thought, a high level public interest in the implementation of the EAW process. It is of vital concern to every citizen, his fellow citizen

and the society of which they are a part, that public order is maintained, the most vital element of which is the prevention and

detection of crime and where committed, a state’s ability to respond. It is therefore essential for the orderly running of a democratic

society, which at a key level includes, the protection of fundamental rights, freedoms and security for all and for their property, that

fugitives should be brought to trial for serious offences, that those convicted should serve their sentences, that no sanctuary of

immunity should exist for such persons and that the public, not only nationally but also internationally, is aware of the state’s

commitment to honour its obligations in this regard. The existence, maintenance and support of a process based on international

reciprocity which implements these principles, is therefore of fundamental value to society. It follows accordingly that these matters,

in the evaluative process under discussion, must be properly recognised and duly rated in the assessment required.

54. Inherent within the balancing exercise of which I speak, is the attachment of weight and the assignment of importance to

identified factors which the court is permitted to consider. How is this to be done? Norris, although an “extradition case” involving a

Category 2 territory and therefore outside the Framework Decision, can nonetheless be considered as relevant as the statutory

provision in question, the issues raised and the manner of their disposition, apply equally to a surrender request made by a Category 1

country (English Extradition Act 2003). Norris was wanted by the State of Pennsylvania to stand trial on one anti-trust charge and

three charges of obstructing the course of justice. His ground of resistance to the order sought, being that of interest to us, was

based on his Art.8 rights, which included his ill health and a mutual dependency on each other which he and his wife enjoyed over

very many years. To correctly position the standing of the community in the extradition process Lord Philips, whilst rejecting the

existence of any absolute rule that interference with family rights will always be justified, nonetheless was prepared to apply a

“categorical assumption” (para.49) about the importance of extradition which in his view “weighs very heavily indeed” (para.51) in any

contested application. Only if “some quite exceptionally compelling feature, or combination of features” (para.56) were present, would

interference with such rights be otherwise than proportionate. It was therefore quite accurate to say that only when the

consequences of such disruption are “exceptionally serious” (para.56) will Art.8 rights outweigh the importance of extradition. Whilst

some differences in approach and perhaps phraseology can be noted in the other judgments as delivered, all of their Lordships agreed

in general with Lord Philips and were supportive of his view. For example Lord Hope (para.91) said that the public interest is one to

which “powerful consideration” should be given and is one which carries “great weight” in any grading of its importance. Lord Hope

also suggested that the public interest is, “a constant factor” and should be so recognised (para.91). Lord Mance (para.105) likewise

said such interest was a “powerful one”. Others used similar expressions. Although invited to do so, the United Kingdom Supreme

Court in HH declined to modify Norris.

55. The situation in the United Kingdom therefore, is that the public interest in extradition proceedings is a weighty and thoughtful

one and as a result, it is only in the rarest of cases that an asserted interference with family rights will outweigh such interest. It may

also be said to be a “constant factor” in any such proceedings.

56. For a number of reasons I would be inclined to approach this issue in a somewhat less rigid and less prescriptive manner. Firstly, I

agree that by virtue of the matters identified the public interest is a “constant” one, but only at the horizontal level. I accept that

such interest is invariable in the sense that it is a permanent feature of such cases, but not that its value is incapable of change. The

interest, whilst ever present, will vary on the vertical scale, depending on the seriousness of the given crime(s). It could hardly be

doubted but that the graver the crime, the greater the interest. Petty shoplifting is not the same as a gallery theft or vault raid.

However, whilst the opposite effect, namely “the lesser the crime the lesser the interest” may not follow in corresponding proportion,

nevertheless, even that reducing interest also has a “constant” to it, in the sense described. Consequently, where on the spectrum

the subject offence may sit, is an aspect of each case which must also be explored as part of the process. In addition, other matters

such as delay may become relevant. Secondly, to adopt an approach based on assumptions, either set at a prima facie level or

indeed even expressed more tentatively than that, may have the unintended effect of curtailing the fullness of the exercise required

and of routinely disadvantaging a respondent. Thirdly, to suggest that the public interest in extradition is “systematically” served by

the making of a surrender order (para.26 supra) is close to suggesting a foreclosure on the issue, a view I cannot agree with. I

therefore do not favour any fixed or specific attribution being assigned to the importance of public interest in this context. Every case

on both sides of the assessment will have its individual set of values and must be so viewed.

57. Having said that however and whilst fully respecting the autonomy of the exercise which I mention, it can also confidently be said

that, given the centrality of the role which an efficient and functioning surrender system plays in the preservation of society in which

fundamental rights are protected, the public interest in such a process, will almost always attract a rating at the higher end of

importance provided, the evaluative process is properly conducted. Such a positioning of course may require adjustment in either

direction so as to reflect material factors in any given case, but even allowing for this, the “generality” of the point made in my view

remains valid.

Individual’s Interest: How it is Valued:

58. The other interest, competing with that last described, stems from the rights attaching to the individual, as such, and in this case

to his involvement with others as part of a family group. It is an exercise in obviousness to state that any extradition process is most

likely to result in arrest, probably or at least possibly in detention, and on a successful application, in one’s forced expulsion from the

State. Therefore, such consequences, apart from degree, are unavoidable, being those which are inherent in the regime itself and

without which the process could not be implemented. Article 5 of the Convention, which confers on every person a right to liberty and

security of person, makes specific provision for a number of exceptions to such right, which includes that stated at 1(f), namely, “the

lawful arrest or detention of a person … against whom action is being taken with a view to deportation or extradition.” The Art.8

qualification of the rights respected in para.1 of that Article, includes a reference to the “…prevention of disorder or crime…” and “…

the protection of the rights and freedoms of others.” (article 8(2)). Both of those rights and several others, together with their

exercise, are therefore conditional. Consequently, the Convention itself recognises the necessity for intervention with the exercise of

such rights in certain situations, including extradition. Accordingly, it would seem to follow that factors which, as a matter of

inevitability directly result from all extradition orders, cannot attract great value. Certainly, it would be exceedingly difficult to

establish that such factors, in and of themselves and by their existence alone, could constitute a disproportionate interference with

for example, family rights and thereby outweigh the public interest in extradition. If such was the case, the public interest would

routinely be nullified. Consequently, reliance on matters which could be said to typically flow from arrest, detention or surrender,

without more, will little avail the affected person.

59. What is likely to be of far more significance are the injurious effects and harmful consequences which the public action would

have for that individual and others properly identified with him. A generality of pleading is likely to carry little weight in this regard.

What the court will search for and explore is the real and personal extent of the repercussions which the act complained of, will have

for the persons affected.

60. In an endeavour to address this quite complex interplay of interests, certain English cases have suggested that before an

interference with family rights can defeat an application for surrender, the intended extraditee must meet a “high threshold”, establish

“exceptional circumstances”, or identify “striking and unusual features”, peculiar to him. Lord Bingham in Huang pointed out that

“exceptionality” is not a legal test (para.20). I respectfully agree and add only that the same point holds good in most areas of law.

In any event, the standard set by Art.8 is not one of exceptionality but one of proportionality. In addition, any approach so driven

has the clear but erroneous implication that there may be a responsibility on the affected person to establish such matters,

presumably to the probable level, which as previously pointed out (para.50 supra), is not the case. To suggest or to imply that a

fruitless search for “unusual facts or circumstances” concludes the matter, must I think, be incorrect. If such were so, then a great

number of Art.8 cases would have no merit to evaluate or purpose in evaluating. A quick survey of some of the case law involving

family rights, will show that the underlying facts relied upon will closely parallel those of many other families or family units, whether in

an Art.8 situation or otherwise. Children live with their mother, who frequently may be a single parent: children and mother may rely

on a husband, partner or the father as the sole breadwinner; a disabled parent may be totally dependent on a family carer; none of

these examples, of which there are many others could hardly be described as unusual or as uncommon experiences of life, in this or in

any time, or in this or in any Member State. And yet a severance or disruption of any one such relationship could have devastating

consequences for those affected. Accordingly, if the balancing approach be correct, such an exercise clearly disfavours the creation

of any rigid or specified yardstick against which an Art.8 infringement should be measured.

61. Notwithstanding what I have just stated however, it is important to note that the Strasbourg Court as well as the Commission,

have also looked at this issue and in many cases have used the language of “exceptionality” or that closely reminiscent of it, in the

present context (Dickson). In Soering (para.2), the court, on the Art.6 complaint, did not exclude the possibility that an issue might

“exceptionally” arise where extradition could be refused if the risk of a flagrant denial of a fair trial could be established: the

Commission in Launder (Launder v. United Kingdom [1997] E.C.H.R. 106), at para.3, when finding an alleged Art.8 violation as

manifestly ill-founded said that “it is only in exceptional circumstances” that extradition of a person on a serious offence would be

held “to be an unjustified or disproportionate interference” with his Art.8 rights. It should be noted that Soering’s assertion related to

what may occur in the requesting state if returned, as did Launder. However, despite that point of distinction, it is clear that

howsoever described or approached a successful reliance on Art.8 will not be easy. Indeed, I have not been able to identify a single

case from the Strasbourg Court in which it was said that extradition would be an interference with Art.8 rights, which were enjoyed in

the requested State. That in itself is a powerful reflection of the positioning of the public interest in this process.

62. The importance of the observation last made is also very evident from the case of Minister for Justice, Equality and Law Reform

v. Gheorghe [2009] I.E.S.C. 76 where the respondent sought to oppose his surrender inter alia on Art.8 grounds. The High Court

rejected this submission “in limine” as did the Supreme Court: Fennelly J. at para. 48 said,

“It is a regrettable but inescapable incident of extradition in general and, as in this case, surrender pursuant to the

system of the European arrest warrant, that persons sought for prosecution in another state will very often suffer

disruption of their personal and family life … No authority has been produced to support the proposition that surrender is

to be refused where a person will, as a consequence, suffer disruption, even severe disruption of family relationships.”

The disposal of that argument in such a manner clearly reflects in explicit detail the difficulty which a respondent meets on any Art.8

defence.

63. In summary, where resistance is offered by virtue of a Convention or Constitution right, the court must conduct a fact-specific

enquiry into all relevant matters so that a fair balance can be struck between the rights of the public and those of the person in

question. Such an exercise is not governed by any predetermined approach or by pre-set formula: it is for the trial judge to decide

how to proceed. Once all of the circumstances are properly considered, the end result should accurately reflect the exercise. As part

of the process, each of the competing interests must be measured. If appropriately conducted, the interests of the public,

underpinned as they are by weighty considerations such as freedom and security, will virtually always merit a value of significance

whereas those attaching to an individual will be more variable. The greater the impact to the person, the greater the weight.

Consequences, inherent in the process itself, without more, will attract a much lesser value than consequences with real and

substantial effect on the individual.

The High Court as EJA:

64. It is clear from what is above stated that Irish law is familiar with the principle of proportionality and what that entails. Equally so

with regards to the jurisprudence of the ECtHR in this respect. I therefore have no difficulty in accepting that in the assessment of

his Art.8 rights, the respondent is entitled to make use of this concept. In accordance with established case law, both the decision

complained of and the basis of its challenge, comfortably fall within its parameters. As was stated in Dundon “Persons cannot be

surrendered compulsorily from one Member State to another except in accordance with an open and transparent judicial procedure

which guarantees respect for fundamental human rights” (Fennelly J. at p.546). Consequently, the High Court, where it has to engage

with Convention rights such as those conferred by Art.8, is fully entitled to apply this principle. There is nothing contentious about

this conclusion. As will be shown, many of the factors suggested as being relevant in this regard, are in fact so.

65. However, there remains controversy as to whether the executing court may consider a number of other matters, such as the cost

and “other burdens” involved in executing the EAW and the likely sentence which an affected person, on conviction, might receive.

These were factors which the High Court in this case had noted in its decision. The reference by the trial judge to the likely

sentence, inherently involved some assessment by him of where on the seriousness spectrum the subject offence should fall. The

purpose of this was quite unrelated to the qualifying condition of minimum gravity, in respect of which he saw no role for the de

minimus rule. Rather, when viewed with another passage of his judgment (-that trivial and petty offences were never intended for

inclusion-: para.23 supra), it must be regarded as reflecting unease about the use of this process where the offence is considered

less than serious. However, given that once within the overall scheme the specification of an offence to ground the EAW is a matter

for the issuing authority and that the financial and administrative burden of executing the EAW appears to rest at the

executive/political level, it must be asked what role, if any, does the High Court have in either regard?

66. It is to be greatly doubted that such factors purely as a matter of domestic law, have any relevance in the context applying.

Certainly no authority has been cited in this regard. In all of the relevant case law, the factors of materiality in conducting a

proportionality test have all been specific to the person or to his individual circumstances. Matters correctly described as external to

either, are not considered. Therefore, it cannot be accepted that this approach has any general foundation in Irish law.

67. If the respondent’s submissions in support of the learned judge on this aspect of the case are correct, it would follow that at the

execution stage, all matters, including but not limited to those above mentioned, would be open for consideration. In deference to

mutual respect however, it is said that the High Court would not look behind the issuance of the EAW, but nonetheless as part of its

s.16 jurisdiction could still review all circumstances, existing then or thereafter, in its evaluation of proportionality. If that proposition

was accepted, which in itself is difficult to contemplate, the doctrine as heretofore known and applied, would, have to be redescribed

as including something akin to a “freestanding” test, such that every requested person could seek to resist a surrender order by

canvassing a most wide-ranging review of virtually all and every circumstance. In addition, of course where applicable the principle of

proportionality, as conventionally understood, could also be utilised in Constitution and Convention challenges. The question thus is

whether such a far reaching extension of the principle is either permitted or justified.

68. The Minister’s response is short and decisive: he rejects the existence of any such proposition and dismisses it as having no

foundation in law.

69. It seems clear that this submission, which might never have surfaced but for the existence of significant disquiet about the

“nature” of some offences, is addressed to the creation of some method by which offences of a minor or petty nature should not

trouble a requested State, it being forcibly argued that the use of the EAW for such offences is an abuse of a core value of the

Framework Decision. It is said that if a proportionality test is not applied or applied affectively at the issuance stage, then as a

corrective measure, a version “two type” test should be applied at the execution stage. If adopted, such would give rise to the

establishment of what has been loosely called “a triviality bar”, which could operate as a further ground for refusal. This immediately

raises two questions: firstly, is there a problem of a generalised nature in this regard and secondly, if there is, what is the legal basis

upon which any response can be given, either by reference to domestic or European legislation or case law such as G.P.S. v. C, or

otherwise.

The Published Data:

70. The High Court commenced its decision by stating that, not only has an IJA a discretion to apply a proportionality test but that at

both a political and legal level there was a “obligation to do so”. As the political level is the domain of those engaged in public life in

that way, any objective derived from such a direction is not one upon which rights or obligations can be found. That is not to say

however that activity at EU level is irrelevant to this issue. On the contrary it is quite pertinent: therefore a brief reference to the

information available on the working of the Framework Decision over the past number of years will be instructive.

71. Art.34 of the Framework Decision required both the European Council and the European Commission to conduct a review of the

operational efficiency of its provisions, as seen from its functional implementation by and between Member States. Both institutions

have done so on a number of occasions, covering different periods, since the introduction of the system in January 2004. Statistics

have been compiled, reports created and submitted, and a revised handbook on how to issue an EAW, has been published. A number

of problems have been identified with its workings: those relevant to the present discussion directly touch on the disparity of

approach between issuing States, particularly having regard to the nature of the offence in respect of which a request is made.

72. It can hardly be doubted but that in principle, the system was designed to further the prosecution of the more serious and

damaging type of crime and with the custodial enforcement of resulting convictions. One can I feel, confidently say that the

systematic use of the warrant to capture, what by common definition can be described as “petty” or “trivial offences”, was never

intended. However, such is now common practice and has given rise to concerns at the highest level. The solution which has been

suggested is the uniform application of a proportionality test at the issuing stage.

73. From the source references given, the following information has come to light:

(i) there is a belief that the Framework Decision does not include any obligation of proportionality, at either the point of

issue or execution, nor does it include any ground for non-recognition in relation to it;

(ii) as a result, offences, although technically within Art.2, but which of themselves in a given situation are not serious

enough to justify the imposition of execution on a requested State, are routinely the subject matter of an EAW;

(iii) confidence in the system has been undermined by the consistent use of the process for this purpose: very often

offences of a most “minor nature” are involved, examples of which include:

- detention of 0.45 grams of cannabis,

- detention of 1.5 grams of marijuana,

- detention of 0.15 grams of heroin,

- detention of 3 ecstasy tablets,

- theft of 2 car tyres,

- theft of a piglet,

- driving a motor vehicle where the excess alcohol level was minimal (0.81 mg/l).

(iv) there is common agreement amongst Member States at executive level that, a proportionality check is necessary so

as to eliminate offences which could not justify the measures of cooperation which the execution of an EAW impose.

Factors which should be considered in such a check, include the seriousness of the offence, the length of the sentence,

the existence of an alternative approach and the carrying out of a cost-benefit analysis regarding the execution of the

warrant.

(v) in the revised handbook published by the Commission, these changes are reflected; if implemented, the same should

have the desired corrective effect.

(vi) the Commission, in a report for the Parliament and the Council dated the 11th April 2011, warned that if the existing

situation should continue, the same may “…lead to a situation in which the executing judicial authorities…feel inclined to

apply a proportionality test, thus introducing a ground for refusal that is not in conformity with the Council Framework

Decision or with the principle of mutual recognition on which the measure is based.” (see p.8) and finally,

(vii) the statistics available cover the period from 2005 to 2009 and show that Poland has issued by far the greater

number of warrants with almost three and a half thousand being authorised in 2007, and over 4,800 in each of the

succeeding years.

The sources referred to include, the Presidency of European Council, the Working Party on Cooperation in Criminal Matters, 9th July,

2007: Conclusions of the General Secretariat of the Council to Delegations, 17th December, 2010 and the Report from the Commission

to the European Parliament and the Council, 11th April, 2011.

74. The practice above described, has also been observed and commented upon at judicial level, an example of which is the remark

by Maurice Kay L.J., during an adjournment hearing, in Zak v. Regional Court Bydgoszcz (Poland) [2008] E.W.H.C. 470 that, whilst he

had seen EAWs issued for less than serious offences, he had never “seen one quite as low down the calendar” as this, referring to the

alleged theft of a mobile phone (see also para.87 infra).

75. Before responding to the legal submission made in this regard and irrespective of the conclusion which I reach, I wish to add my

voice to this debate. The aims, objectives and pursuits of the Framework Decision, at least in large measure and to a great extent,

are not in controversy. The recitals and articles thereof make this clear. As does the underlying basis and the foundation upon which

that basis rests. Mutual recognition and the broader concept of mutual trust, are inextricably wedged to the objectives of the

Directive. Mutuality of respect to such objectives is therefore essential.

76. It is clear, admitting of little controversy, that the spirit of the Framework Decision is being stood down: not on isolated occasions

or in a haphazard way or even randomly without reason. What has happened is that some Member States have utilised the process to

seek the return of individuals who are suspected of having transgressed criminal law, in some very minor way. Even making generous

allowance for the variety and diversity of individual legal systems and for differences relating to social, political, religious and cultural

norms within each and where such norms may sit in the hierarchy of the particular society, nonetheless, at least at the level of

principle, each Member State who bought into the scheme did so appreciating its core objectives, and in so doing committed

themselves to further them, even if individual and isolated cases had to be sacrificed. To offer the principle of compulsory prosecution

as a justification for such action, if that is the case, is to fail to appreciate the fact that unlike purely domestic crime, which is of

concern only to the host State, the issuance of an EAW imposes obligations and responsibilities on another sovereign State.

Therefore, such an act has much wider implications than the former and accordingly requires a more critical assessment in the first

place. As Lord Phillips said in Assange “It does not necessarily follow that an offence that justifies the issue of a domestic warrant of

arrest will justify the issue of an EAW” (para.90). No Member State is entitled to, and as a matter of prudence should not, stretch the

operation of the Framework Decision to a point, even if technically within its terms, where mutuality of respect and confidence is

compromised. If this should repeatedly occur, in a manner recognised by other Member States or those entities at EU level involved in

its operation, it is not difficult to foresee that consequences will follow.

77. Whilst I recognise that what may be of concern at the collective level of all Member States (“higher level concern”), may be much

subdued at individual state level, nonetheless it should not be assumed that a Member State which is frequently called upon to deal

with very minor offences, will continue to do so without searching its own legislation for means of legitimately rejecting such requests.

Such a step would be undesirable but understandable even where the State is otherwise fully committed to the Framework Decision.

It can readily be avoided. In a word the principles of the Framework Decision must be respected: the successful operation of the

system, which is so critical to the prevention of crime, the bringing to justice of those suspected of crime, and the incarceration of

convicts to serve their imposed sentence, is so vital to the citizens of all Member States, individually and collectively, that the

mutuality of which I speak, must be visibly adhered to. Any regression from such must therefore be avoided.

78. As I have stated there is available an immediate solution to the difficulty. It is I believe fully accepted that the Framework

Decision allows for the application of a proportionality test at the issue stage. Art. 2.1 states “A European Arrest Warrant may be

issued …” [emphasis added]. This affords the basis for such approach. If adopted and applied in a uniform way, this long-running and

serious issue could be resolved.

Legal Basis:

79. The case G.P.S. v. C, which is offered as a basis to sustain the submission under review (para.25 supra paras.65 and 67 supra)

was not extensively discussed by the learned judge: he simply indicated his agreement that the matters which the German court took

into account (para.25 supra) were appropriate for his proportionality assessment. If the factor relating to “cost and burden” on the

executing judicial authority was not included, further consideration of that court’s ruling, at least at the level of principle, might not

have been indicated, as the other matters noted are undoubtedly relevant: this by reason of their attachment to the Convention right

as asserted. But it was, and was so adopted by the learned judge in the High Court. Therefore, the case undoubtedly has a

significance in that particular respect. However, to view its relevance only by this approach may be to treat the case too narrowly.

What is of much more interest, is the manner by which the Higher Regional Court in Stuttgart arrived at its decision: by this I mean

not procedurally, but substantively. It appears that it invoked a wide-ranging form of proportionality as part of its surrender

jurisdiction, considering amongst other matters, the above mentioned “cost and burden” factor. Therefore, further reference to this

case is well justified so as to assess the wider legal basis upon which the court rested its judgment.

80. The facts of the case are not individually relevant, save to note that the return of Mr C to Spain was sought in respect of an

offence relating to the sale and supply of cocaine, which, regardless of quantity, carried a sentence range of between three and nine

years. In the particular case, the Spanish prosecutor sought a four year sentence. The quantity involved however was very small,

being 0.199 grams.

81. The court considered the Spanish request by differentiating between the “execution” itself, of the EAW and the domestic arrest

(“extradition arrest”) of the individual, which of course preceded the formal surrender hearing which I suspect is akin to the s.16

process in this jurisdiction. Art.73 of the relevant German legislation, “IRG”, prohibits the extradition of any person to a Member State

if such would infringe fundamental rights or be inconsistent with fundamental legal principles as enshrined in Art.6 TEU. It matters not

whether one applies the provisions of that article, in their form pre or post-Lisbon as either way, the principle of proportionality “of

criminal offences and penalties”, forms part of the constitutional traditions common to Member States.

82. That principle is now expressly articulated in Art.49(3) of the Charter of Fundamental Rights and reads “[t]he severity of penalties

must not be disproportionate to the criminal offence.” This provision was applied by the court, in accordance with Art.51(1) of the

Charter, by holding that when invoking its domestic legislation in this area it was in effect implementing Union law, and therefore

access to the Charter was permitted. This conclusion was not affected by the date of its coming into force (1st December, 2009),

even when considered against the earlier date of the EAW. Consequently, the execution of any EAW had to satisfy the Charter, by

respecting in this case the proportionality requirement as mentioned.

83. In the field of treaty based extradition, German jurisprudence permits an individual’s return even if the demanded sentence could

be described as “very severe”, or even “too severe”: the impermissible threshold being one of “intolerable severity”. Case law dictated

a consideration of all relevant facts in this regard. The exercise conducted by the court included an assessment of the quantity of

the drug, its possession for supply as distinct from personal consumption, the poor criminal record of the affected person who could

be considered a recidivist, and the absence of any mitigating factors such as, police cooperation. In addition, it had regard to the

general Spanish practice of deporting non-citizens in lieu of serving any imposed sentence of under 6 years, to the intended adoption

by that country of mitigating measures to reflect cases involving only small quantities of drugs and to the safeguarding principle of

“speciality”, in the event of Spain wishing to prosecute the person for other offences. Its conclusion was that Mr C did not fall foul of

that test.

84. The court then considered the extradition arrest and began by invoking Art.12, first sentence of the Framework Decision, which

declares that “When a person is arrested on the basis of a[n] [EAW] the [EJA] shall take a decision on whether the requested person

should remain in detention, in accordance with the law of the executing Member State.” This means that such decision, even if made

in furtherance of an EAW, remained a sovereign act, being unaffected by the Framework Decision. Therefore any such arrest must be

in full conformity, not simply with the implementing statutory provisions, but also with German constitutional norms which include the

principle of proportionality. Given the supremacy of its source within the national legal order, this principle applied even though the

underlying statutory provision is silent in this regard. Therefore, a proportionality test of the “extradition arrest” order was also

necessary.

85. That the overall process involves two distinct steps is of some importance, as the court was anxious to emphasise, when it said

that:

“the proportionality check of a German extradition arrest warrant must not be confused with a proportionality check of

the underlying European arrest warrant itself. Many experts hold that, due to the principle of mutual recognition, it is not

possible for the executing Member State to check the proportionality of an EAW. However, it must be noted that the

Council of the European Union assesses the problem of disproportional EAWs to be a ‘priority’”. (emphasis added)

It quoted the Final Report on the Fourth Round of Mutual Evaluations prepared by the Council on the 28th of May 2009 in support of

the emphasised quote.

86. In its actual assessment of the second step the court identified by name the matters referred to by the learned judge in the

instant appeal (para.25 supra). In addition, as Mr C was in custody at that time in relation to another matter, the added burden of

being subject to an extradition arrest was not major, nor did the court consider the offence as a petty one. It therefore concluded

that this domestic arrest likewise was not disproportionate to his right to liberty.

87. That last remark about the nature of the offence was clearly case specific: however, the court also had some general comments

on this topic, pointing out that, where the offence is “petty” and the demanded sanction severe, the issue of an EAW can be

disproportionate not only as a burden on the affected person but also for the executing State. Recourse to the multiple use of the

process for such type offences, have “long been” noticed by both the prosecution service and the court. Indeed the court has

previously refused to extradite a person who had sold 0.05 grams of heroine-cocaine-mixture, where the requesting state sought a

ten year sentence and also has dismissed an application for an extradition arrest, where a two year sentence was sought for simple

possession of 1.435 grams of methamphetamine in respect of a person without criminal record. It therefore seems clear that the

essence of the problem has been noted and that in the past individuals, on whatever precise basis, have not been extradited where a

relevant circumstance has been the marginal nature of the specified offence.

88. It thus appears from the decision as a whole that, the court implied an “overall proportionality test” in arriving at its decision

despite the fact that neither the Framework Decision nor the relevant German legislation made provision for this.

89. Although evidently impressive and clearly significant, I hesitate to adopt the decision in G.P.S. v. C for a number of reasons: (i)

the source of the information used in this discussion is a review article entitled “Case Comment: Proportionality and the European

Arrest Warrant”, Crim.L.R., 2010, 6, 474-482 by Vogel and Spencer and not the judgment itself, which, despite all efforts, could not

be procured; (ii) it is clear that domestic law, including constitutional law, featured prominently in the decision but it is not possible to

decipher its full or true significance; in any event such is a matter for that jurisdiction only; (iii) it would appear that under German

law, surrender can be refused if the disparity between the crime and the demanded sentence is disproportionate. As the above

discussion discloses, a comprehensive court review is required in such a context. No case in this jurisdiction has been identified as

giving rise to such a comparable rule or practice; (iv) the subject of the assessment was the relationship between a specific crime

and the demanded sanction, not an issue, in any defined sense, in the instant case. Further, the type of detailed information utilised

by the court in its assessment is entirely absent from this case; (v) it is not possible to say what weight was ascribed to any given

factor including the nature of the offence: it does however appear that triviality as a bar in its own right was not clearly defined; (vi)

the interplay between the provisions of Art. 49 of the Charter and the equivalent domestic rules remain unclear, as is the extent of

the court’s ultimate reliance on the Charter; (vii) no submission was made regarding the novelty of approach in differentiating

between what the court called “extradition arrest” on the one hand and “execution” of the EAW on the other; (viii) the observations

made by the court which are relied upon in the instant case were undoubtedly obiter and although the court did note with approval

previous decisions reflecting those observations, nonetheless such decisions likewise were not available. Accordingly, I am not

disposed to rely upon that judgment in the present case.

90. A further word however is required regarding the potential use of EU law as a foundation for the court’s approach as well as its

reliance on domestic law. It is submitted that the sort of proportionality test above described is now recognised as constituting a

general principle of Union law and therefore should be applied to the instant case. Proceeding on that assumption for a moment,

without so deciding, it must be noted that no authority has been cited for the proposition that domestic legislation (2003 Act) must

be interpreted in accordance with the whole corpus of that law and not purely by reference to the underlying measure, in this

instance the Framework Decision, which it gives effect to. In the absence of such authority I am not prepared to expressly hold that

such a proportionality test stands outside, or exists separate to or should be applied independently of, the measure in question. It

seems to me that the correct application of such a principle is by reference to the provisions of the Framework Decision.

Conforming Interpretation:

91. What now must be considered is whether the 2003 Act, as properly construed, can be read as permitting the type of

proportionality test as above advocated. In applying purely domestic interpretative rules it would appear not. From the analysis above

supplied, in particular by reference to ss.10 and 16 of the Act, the warrant, if otherwise valid, must be enforced unless the court is

prohibited from so doing by virtue of some statutory bar. Where such is engaged and if a point of contest involves the application of a

proportionality test, such test is that provided for by Heaney and/or the Strasbourg Court, neither of which encompasses the type of

free-standing approach as is argued for on this issue. Furthermore, several cases, including Koncis support this conclusion. Therefore,

viewed purely in accordance with normal rules of construction, the 2003 Act does not so allow.

92. It is common case that the Framework Decision does not have direct effect but is binding as to the results to be achieved. As a

result, each Member State was obliged to enact domestic legislation, so as to give effect to the objectives sought to be pursued by

the Decision. In all there are therefore 27 Member States involved, each of whom has enacted, what in their sovereign opinion, is the

most appropriate means to give effect to Decision. In this jurisdiction the legislature has passed the 2003 Act. It is by the provisions

of that Act that this State operates the EAW regime. As earlier mentioned, the Framework Decision is only part of Irish law in the way

permitted by that Act and not otherwise.

93. This point is made for the obvious reason that, as a requested State, the courts of this jurisdiction cannot be expected to be

familiar with the implementing law internal to other Member States. Of course the same conversely applies to all other States.

Consequently, unless one can do so at a level separate to the domestic one, it is neither possible nor desirable to make any

worthwhile observations on how other Member States discharge their duty when acting as EJA. Evidently, the same comments apply

when that judicial authority is acting as the IJA.

94. The Framework Decision was a third pillar measure, first established by the Treaty of Maastricht, 1992, the overall objective of

which was the creation of an area of freedom, security and justice by developing common action in a number of areas; these

included, at a general level, judicial cooperation in criminal matters, and at a specific level, facilitating extradition (Art. 31(a) and (b)).

It was adopted in 2002 under Title VI of the TEU, having as its legal foundation Art. 34(2) of that Treaty. This provision permitted the

European Council, after due compliance with the procedure specified:

“(b) [to] adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States.

Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the

national authorities the choice of form and methods. They shall not entail direct effect”.

95. Under that article, in the areas referred to in the text, Member States were obliged to inform and consult with one another with a

view to coordinating their action. To achieve this there is then set out the range of legal measures or instruments which the EU may

adopt in that regard. These are “common positions”, “framework decisions”, “decisions” and “conventions”. These do not include

directives. Evidently, the method adopted to further cooperation in the extradition field was the Framework Decision. Article 34 has

now been replaced. For the current provisions governing the “Area of Freedom, Security and Justice” see Title V, Chapter 1 TFEU and

in particular Chapter 4 dealing with “Judicial Cooperation in Criminal Matters” (Arts. 82 – 86 TFEU).

96. As can be seen, the form of wording used, closely replicates that used in Art.288 TFEU (formerly Art.249 TEC), to describe the

legal nature of a Directive. However, and despite such similarity, a Framework Decision self-evidently does not have like impact, as it

lacks direct effect, nor does it have like status. Such measure fits into the EU legal order at a level different to that of a Directive.

Therefore, unless by express identification, it is not easy to see how it could attract or be subject to the same principles as a

Directive. This must be the case for if it were otherwise, there would be no distinction between and no purpose in distinguishing both

measures. Therefore, at least at a prima facie level, it is difficult to see how a principle of European law can apply to a Framework

Decision simply because such a principle applies to a Directive. Consequently, it must be doubtful that cases, such as Von Colson und

Kamann v. Land Nordrhein-Westfalen (Case 14/83) [1984] E.C.R. 1891 can, without more, be taken as applying to a Framework

Decision. This has relevance to a point arising out of the Pupino (Case C-105/03) [2005] E.C.R. I-5285, decision, which I shall look at

in a moment.

97. The principle under discussion is one of interpretation: it is, staying at a general level, that national measures introduced to

implement a “Directive” must be considered, in light of the wording, purpose and objective of the Directive, so as to achieve the

results intended by that Directive (Marleasing SA v. La Comercial Internacional de Alimentación SA (Case C-106-89) [1990] E.C.R. I-

4135). The justification for this approach has both a specific reference point, being the wording of Art.288 TFEU and a more general

one based on the principle of loyal cooperation between Member States, expressed in the requirement to take all appropriate

measures “to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the

Community” (Art.10 TEC). There is no such comparable provision in the TEU.

98. In Pupino, the Framework Decision in issue was not the same as in the instant case, but was one with legal characteristics

identical to the subject Decision. In principle, two arguments were addressed by the court. The first to the effect that, as a

Framework Decision was quite distinct from a Directive, the principle of conforming interpretation, which applies to the latter, did not

apply to the former. Secondly, the same conclusion was urged on the basis that, as the Court of Justice on previous occasions had in

part relied upon Art.10 of the TEC as a justification for this rule, it could not do so now given the absence of a comparable provision

in the TEU. The court rejected both arguments.

99. It concluded that the conforming rule also applied to a Framework Decision on the basis of its “binding” character “as to the result

to be achieved”: relying on the particular wording of Art.34(2)(b) TEU in this regard. In addition, the court effectively implied into that

Treaty a provision of “loyal cooperation” very much as if the provisions of Art.10 TEC were expressly replicated in it. Its justification in

this regard was that otherwise, “it would be difficult for the Union to carry out its task effectively”. It therefore confirmed that “the

principle of conforming interpretation is “binding in relation to Framework Decisions” adopted under Title VI of the TEU. Thus, national

courts must interpret national law “so far as possible in the light of the wording and purpose of the Framework Decision in order to

attain the result which it pursues”. Finally it went on to identify the point at which the obligation would be exhausted: any

interpretation which the words could not carry, or went against “the grain” of the text, discharged the principle. Contra legem applies

(para.47 supra).

100. So much however for the decision itself, an interesting question then arises as to the source of the court’s jurisdiction to give a

preliminary ruling arising out of a Framework Decision. Indeed, in its lead in to the above mentioned findings in Pupino, the court dealt

with this very issue.

101. The general power of the Court of Justice to give preliminary rulings is that as now contained in Art.267 TFEU (ex Art.234 TEC:

ex Art.177 TEC). That power is applied, pre-Lisbon, by virtue of Art.46 of the TEU to any measure adopted under the provisions of

Title VI of that Treaty subject to “the conditions provided for by Art.35”, thereof. That article expressly confers on the court,

jurisdiction to give preliminary rulings on the “validity and interpretation” of framework decisions: however, in order to access the

jurisdiction of the court in this regard, a Member State must make the declaration specified in subpara.2. That is the jurisdictional link

between a State and the court. On making the declaration, a Member State by that act, is empowered on the one hand to seek such

a ruling but on the other, as a corollary, undertakes to accept the court’s jurisdiction which evidently includes the binding nature of

the resulting opinion. There are thus two aspects to the situation. Italy has made the declaration and hence, Pupino, as Belgium has

and hence, Advocaten voor de Wereld. If however no such declaration is made what is the position? If it is accepted beyond question

that in such circumstances no preliminary ruling can be sought, which it is, it is difficult to see how at the same time the court’s

opinion could be compulsorily imposed on such a Member State. In the absence therefore of some such process by which this might

result which has not been identified, this can only mean that in the former situation, the court’s ruling must be followed, whereas in

the latter, no such requirement exists. To suggest that a similar result follows even in the absence of a declaration does not appear

correct. For, if it were so, the entire process of submission would be nullified, and Member States, without subscription, would be as

equally entitled and as equally bound as those who did subscribe. Ireland has not made the required declaration. Consequently, I do

not believe that the judgment in Pupino is binding on this court.

102. Nor do I think that this conclusion is disturbed by the remaining provisions of Art.35. Para.4 states that even without the

declaration a Member State may participate in the manner stated, in any case properly before the court. Para.6 gives the court

power to review the legality of framework decisions in actions moved by Member States on grounds of lack of competence, and to

deal with infringements of an essential procedural requirement, infringements of the Treaty or of any rule of law relating to its

application or misuse of powers. Furthermore, under para.7 the court has jurisdiction to rule on any dispute between Member States

regarding the interpretation or application of acts mentioned in Art.34(2) if such dispute cannot be resolved by the Council within a

specified time. This provision is entirely understandable and could have no possible bearing on the point at issue.

103. With regard to the other matters covered, I cannot see how any of these provisions could affect the clear and decisive

structure, as laid down in the Article, by which a Member State signs up for the jurisdiction of the Court of Justice. In particular, I

could not accept that the facility for a non-subscribing Member to make written observations on a case properly before the court,

can affect or interfere with this conclusion. Such a procedural matter could not displace a substantive signing requirement to submit

to jurisdiction. I cannot believe that such can affect the clear and understandable policy of the opt-in/opt-out provisions given the

intergovernmental nature of cooperation between Member States in the context of this Pillar and this Title of the Treaty. I think the

position is put beyond serious issue by reference once again to Article 46 of the TEU which applies the provisions inter alia of the

TEC, concerning the powers of the Court of Justice and the exercise of those powers, to framework decisions, but only subject to

Article 35. Consequently, the conclusion stated is one which I feel is justified.

104. It must be immediately noted that in many previous decisions, this Court has adopted the principles in Pupino in a manner

suggestive of their binding application. Fennelly J. in Dundon so stated and felt that the absence of the Declaration did not matter.

Although Murray C.J. in Altaravicius referred to Pupino, he did not consider it necessary to rely upon Community interpretive tools to

resolve the issue in that case. The learned judge did however apply Pupino in much the same manner as in Dundon in the recent case

of Minister for Justice, Equality and Law Reform v. Tokarski (Unreported, Supreme Court, 6th December, 2012). Notwithstanding

these views however of which of course I deeply respect, I have not been able to identify in any of the reported decisions an

argument addressed to the court on this point. It seems to me that the court on such occasions proceeded as if Pupino was binding

without argument. Having said that however I would not in any way wish to anticipate what views the other members of the court

may have if and when the issue is fully debated.

105. The decision in Pupino pre-dated Lisbon which since 2009 is now in force and therefore the above conclusion must also be

viewed in light of that Treaty. Title V of the TFEU is headed “Area of Freedom, Security and Justice”, with Chapter 4 dealing with

“Judicial Cooperation In Criminal Matters” and Chapter 5 referring to “Police Cooperation”. Some of the provisions contained in Title VI

of the TEU have been carried forward with modifications and others have been replaced. A detailed review of the provisions of Title V

is not required. Both Ireland and the United Kingdom have executed a protocol, No.21, in respect thereof. As a result, no provision of,

measure adopted, or international agreement concluded under Title V shall be directly binding on this State, nor shall the same form

part of Union law for the purposes of applying to this State. Moreover, any interpretive decisions by the Court of Justice arising out of

such provisions or measures are equally inapplicable (Art.2 of the Protocol). This situation also applies to any measure taken under its

provisions which amend an existing measure to which Ireland is already a signature (Art.4(a)). As can therefore be seen, Title V of

Part Three and any act or measure taken thereunder is inapplicable to this jurisdiction under the provisions of Protocol 21.

106. The transitional provisions, of the TFEU are contained, inter alia in Protocol No.36. In the field of police and judicial cooperation

in criminal matters the relevant provisions are those of Art.9 and Art.10. The combined affect of these provisions means that,

measures previously adopted in this area shall remain until repealed, annulled or amended, and in that regard the powers of the Court

of Justice, under Title VI of the TEU, shall remain the same, where they have been accepted and logically where they have not, under

Art.35(2) of that Treaty. Finally, in this context, these measures shall cease to have affect 5 years after the entry into force of the

Treaty of Lisbon.

107. Notwithstanding this discussion on the effects of the decision in Pupino, I would nonetheless be satisfied to adopt an approach

of conforming interpretation to the 2003 Act inter alia on the basis that in common law there exists a presumption that when enacting

such domestic legislation the Oireachtas intends to do so in a manner compliant with its international obligations. In such

circumstances it is to be presumed that the measure in question gave effect to these obligations. In addition it is also arguable that it

may be a general rule of EU law. Whichever, having noted the value and importance of such a rule, I intend to apply it. The question

therefore is whether, with the aid of this interpretive approach, there can be implied into the provisions of the 2003 Act, in particular

those referable to a surrender hearing, an overall requirement on the High Court to apply a proportionality test of the scope and

breadth as above mentioned. In my view, it is not possible to so do. This conclusion results from the express wording of Art.1.2 of the

Decision, which applies in furtherance of the mutuality principles which are the very foundation of the instrument itself, together with

the express provisions of the Act in the context of execution, which make it clear that unless the mandatory or optional barriers to

extradition (Arts.3 and 4; Part 3 of the 2003 Act) can be availed of, the High Court must, if satisfied as to formal matters, make the

order as requested. As previously stated, it does not have a residual power of refusal. This is unlike the requesting state which does

have a discretion in the issuance of a warrant (Art.2.1). Therefore in my view there is no legal basis to sustain this principle

submission in support of the High Court’s views on this issue.

Factors in Consideration:

108. As previously stated, the learned trial judge considered several factors as part of his proportionality assessment. Such matters,

by reference to the respondent, included, stress, anxiety, separation from family, friends and locality. All of these are wholly

unobjectionable and indeed, by virtue of the exercise required of the High Court, must be taken into account. In addition however, a

number of other points were also looked at and were further canvassed in the submissions. Before briefly touching upon the most

salient of these, could I make two observations. Firstly, it should be noted that the following discussion is entirely unrelated to the

question of weight. At a general level it can be said that, provided an evidential foundation underpinning a matter of relevance is

established, particular to the asserted right and its alleged violation, there is no reason in principle why such should be excluded from

consideration. In fact the contrary is the position. Secondly it is worth repeating that the mere highlighting of such matters, even

those which meet the relevancy test, will almost certainly be of little value to a respondent, unless, by reference to such matters, he

can point to some effect or consequence for him. Abstract identification simpliciter, will remain just that.

Question of Delay:

109. May I illustrate the latter point by reference to the question of delay. Delay from one person’s point of view may have little or no

impact on Art.8 rights. Another person may reasonably draw encouragement from official inactivity over a passage of time particularly

over a prolonged period without justifiable reason. Such a person may legitimately establish closer personal and social ties such as

formalising a relationship or taking steps to integrate his community position. Another person for example may reasonably anchor his

roots by engaging in a profession or business or by acquiring property. The longer the situation remains dormant the more impact the

encouragement may have. There can therefore exist in this regard quite a distinction between both individuals (Lord Bingham:

Kosovo: paras.13-16). Even if the period of time or delay is precisely the same, what distinguishes both is to be found in the

consequences. Therefore an assertion, without more, will have minimal if any value whereas with significance and consequences it

may have much.

110. There are a number of other factors which require some comment. These are, immediate family, “minimum gravity”, seriousness

of offence, alternative options, and the “cost and effect” burden on the executing State.

Immediate Family:

111. No authority is required to support the undoubted fact that a material matter is the impact which separation from family might

have on the respondent. The trial judge however also took into account the impact which the interference could possibly have on

others, who together with the respondent, constitute the unit in respect of which the Art.8 rights are enjoyed. I think he was entitled

to do so. Many cases on the immigration side confirm that where members of the family cannot reasonably be expected to join the

excluded person, in the third country, their rights are likewise engaged. Evidently, even if such persons did, in an EAW context, they

could not continue enjoying the exercise of their existing rights, if incarceration followed. In any event in most situations it would not

be practical or reasonable to expect family members to follow. One way or the other, I believe that in principle, their rights under

Art.8 are also engaged.

Minimum Gravity/De Minimus:

112. Peart J., in his judgment on the 19th March, 2010, when dealing with the first EAW involving Mr Ostrowski, left aside the

argument that surrender could be refused if the alleged offence was such, that the de minimus rule, or a principle akin to it, could

apply. The same suggestion was rejected by the trial judge in this case who nonetheless concluded that, the imposition of a custodial

sentence upon conviction, was inherently unlikely. “Some weight” could be given to this matter which should therefore be taken “into

account”, as part of the overall “circumstances of the case”.

113. It is important to note the structure of the 2003 Act and where the qualifying condition of “minimum gravity” fits into it. The Act

insofar as it involves the High Court as executing judicial authority, sets out a number of conditions which must be satisfied before

any consideration becomes necessary, of either the mandatory or optional prohibitions, on making a surrender order. This is subject to

one exception which I will mention in a moment. Section 10 is a general provision in this regard in that, where subparas.(a), (b), (c),

and (d) of subs.(1), have been addressed, the requested person shall “subject to and in accordance with the provisions of this Act

and the Framework Decision” be arrested and surrendered to the issuing state. Another important provision is section 13, which

provides for the endorsement of the warrant for execution by the High Court, once satisfied that the provisions of the Act have been

complied with.

114. Many matters of significance must therefore be satisfied by reference to these statutory requirements. I mention some only:

(1) the form of the EAW shall, where practicable, replicate that set out in the Annex to the Framework Decision;

(2) the content of such EAW must (i) specify the offence in question together with a description of its nature and its

classification under the laws of the issuing State, (ii) include information that there exists in that State a conviction,

sentence, or detention order which is immediately enforceable, or that a domestic warrant or similar order (the

antecedent order), in respect of the offences and the offender or suspected offender has issued, and (iii) set out the

circumstances in which the offence was committed with a description of that person’s involvement, the penalties available

either before conviction or post conviction but whilst awaiting sentence, or if applicable, the period yet to be served

(s.11); and

(3) the required documents and any undertaking necessary to accompany such documents, as referred to in s.12, must

be transmitted to and deemed acceptable by this State.

115. The High Court on a s.16 hearing, may consider making a surrender order on being satisfied as to certain matters, including the

fact that the warrant has been endorsed for execution under section 13 of the Act. Another matter, amongst the several so

prescribed, relates to the offence: has correspondence been established (if required) and depending on whether it is an Art.2(1) or

Art.2(2) offence, what is the minimum sentence available in the issuing State. Accordingly as can be seen, all of these requirements

will have been addressed, at some point in the process overall, before any consideration is necessary regarding the statutory bars to

surrender.

116. All such requirements including that last mentioned, have been laid down by statute in conjunction with and to reflect the

Framework Decision. A critical feature of that Decision is the provision which determines the type of offence in respect of which an

EAW may issue and thus may be executed. For whatever reasons, each Member State and all collectively, have agreed that such

should be determined by reference to Art.2 of the Decision. Disregarding the double criminality point, it is clear that a critical yard

stick is the maximum sentence available in the issuing State for the offence the subject matter of the warrant. It may be that any

one of several alternative criteria could have been used in this regard, and if the drafts and the “Travaux Preparatoires” were

consulted, I am sure that such would be verified, but as a matter of both fact and law, the ultimate preference was for that as

contained in Art.2. Therefore, once the threshold specified has been met, that conclusively determines the issue of “minimum

gravity”. At such point, the assessment of this requirement is at an end. If not satisfied, the warrant will be outside the scope of

Art.2, and s.38 of the 2003 Act which reflects it, and the affected person must be discharged. If on the other hand due compliance

has been established, then that condition does not fall for any further consideration during a s.16 hearing.

117. The prohibitions which I refer to (para.113 supra) are those contained in Part 3 of the 2003 Act, ss.37-46 inclusive. As can be

seen, all, subject to one exception, are referable, in varying degrees, to the offence or the offender in question. For example, a

person shall not be surrendered if he is pardoned or otherwise immune from prosecution (s.39), or where he has or might be

prosecuted in this State (s.42), or where, by reason of age, he cannot be prosecuted (s.43). For these provisions to have any

applicability, they must be individualised to the subject person. Accordingly, in the absence of such application, there will be general

requirement to consider these matters. Indeed, precisely the same applies to the provisions of s.37, which the respondent has

invoked in the instant case.

118. The one exception however, is that contained in s.38. That section reads:

“38 - (1) Subject to subsection (2) a person shall not be surrendered to an issuing state under this Act in respect of an

offence unless –

(a) the offence corresponds to an offence under the law of the State, and—

(i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not

less than 12 months, or

(ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the

offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term

of imprisonment,

or

(b) the offence is an offence to which paragraph 2 of Art. 2 of the Framework Decision applies and under the law of the

issuing state the offence is punishable by imprisonment for a maximum period of not less than three years.”

This must be read in conjunction with s.11 of the 2003 Act which refers to the form and content of the EAW, as required by that

section and by Art.2 of the Framework Decision.

119. As can therefore be seen, an EAW may issue firstly, in respect of corresponding offences (acts) where the issuing State has

prescribed a custodial sentence or a detention order for a maximum period of at least 12 months or where a sentence of at least four

months has been imposed and secondly, for those offences specified by description in Art.2.2 of the Framework Decision in respect of

which the issuing State has prescribed a custodial sentence or detention order for a maximum period of at least three years. In

respect of the offences last mentioned the normal requirement of establishing double criminality has been waved. As part of its

obligation to examine the documentation relied upon and given the centrality of the point, the High Court must consider, as a matter

of routine, whether the offence specified is one within the scope of an EAW as set out in Art.2. Therefore, even though such a

requirement is contained in Part 3 of the Act, in reality and as a matter of practice, it will always be considered, in the same way and

as part of the same exercise as the other matters above mentioned or referred to.

120. By reference to s.11 of the 2003 Act, the EAW issued in this case is in accordance with the Annex to the Framework Decision.

At para.(e) the single offence in respect of which surrender is sought merits this description “on the 11th May, 2006 in Wroclaw

acting in violation of the law, he was in possession of psychotropic agents in the form of marijuana – 0.725 grams of the net weight”.

Immediately following appears the legal classification of the offence, the statutory provision offended and the maximum penalty, being

one of up to 3 years in prison: therefore the offence ex facie clearly comes within the scope of qualifying offences. Having satisfied

itself as to this requirement, and others depending on circumstances, the court then, but only then, looks at the particular grounds

which prohibit the making of a surrender order. Those mentioned in the Framework Decision (Arts.3 and 4) are all, as I have said,

reflected in primary legislation (part 3 of the 2003 Act). To engage with such rights an affected must raise them. In this case, the

respondent has raised s.37 of the 2003 Act. That issue must of course be determined but at such point minimum gravity will have

been established. Further reference to it is neither required nor permitted.

Seriousness of Offence:

121. This point last discussed is of course quite distinct from the issue of the “seriousness” of a qualifying offence, which in my view

is a relevant matter on a s.16 hearing. As pointed out earlier (para.56) the type or nature of the offence, or more accurately its

seriousness, may be an ingredient in the assessment of the community’s interest in the extradition process. Evidently therefore it

follows that at the level of principle it may feature in the balancing exercise which the High Court judge is called upon to conduct on a

s.16 hearing. At paras.50-63 above, I have set out how such should be measured; as stated, the graver the crime, the graver the

interest. However even in respect of offences which the executing state may consider unimportant or minor, the community will

always have an interest in upholding the process. Consequently, the designation of offences, even as trivial, will not normally

outweigh that interest. If however there are other matters which a respondent can point to, such as for example delay, the same

may give rise to an inference that the public interest in pursuing one’s extradition is at the lower scale. Where however such other

factors are present, either in themselves or cumulatively, the same must be assessed like all other matters, by the High Court.

Likely Sentence:

122. The appellant submits that the trial judge was incorrect, as a matter of law, in speculating what likely sentence the respondent

may receive on conviction if that be the case. The response on behalf of Mr Ostrowski is that such a matter played a minimal part

only in the judge’s deliberations.

123. It appears from the judgment, when dealing with the de minimus submission, that the learned judge was quite emphatic about

his view of the offence: he said “… this Court would not wish the message to go out that it considers possession of prohibited drugs

to be a minor, petty or trivial matter, even if the quantity is small and it was only for personal consumption. It is not be so regarded”.

In my opinion, as the seriousness of an offence is a relevant matter, the learned judge was perfectly entitled to make this

observation. However, it is quite a different point to consider what likely sentence may be imposed on the returned person. Subject

to G.P.S. v. C¸ where such consideration was permitted under domestic law and where there was an evidential basis for the court’s

consideration of that point, it seems to me that such is clearly not permitted under the 2003 Act. In addition to respecting mutual

trust, cooperation, and confidence and disregarding any question of minimum gravity, that issue in my view becomes purely a matter

of law for the courts of the requesting jurisdiction. If it was otherwise it would in effect mean the executing authority second

guessing the conclusion of a process which most likely, at both a substantive and procedural level, it could know little about, whereas

the domestic court would be acutely familiar with it. Whilst the surrounding circumstances of the subject offence in this case seems

straightforward, nonetheless, many EAWs are issued in respect of multiple offences with complex and at times grave circumstances

surrounding their commission. The EAW itself is not designed to provide for such information and whilst s.20 of the 2003 Act is a

potential source of information in that regard, its provisions are not intended to satisfy this use. Aggravating and mitigating

circumstances are largely unknown as would be any impact on the victim.

124. In addition however, at least at the level of principle, there is a fundamental difficulty about speculating on likely sentence as

distinct from having a view on “severity of offence”. As we know, in this jurisdiction, sentences within the entire available range have

been passed on individuals convicted of the most serious crimes, including those against person and property. If therefore, one

followed the logic of this approach, all individuals, notwithstanding being charged with the gravest of offences, could urge that

because of their personal situation and the particular circumstances in which the crime was committed, their likely sentence would be

at the lowest end of the scale. That simply cannot be the case.. Therefore, at both the level of principle and at a practical level, I do

not accept that such is a valid consideration.

Alternative Means:

125. The failure of the Polish authorities to forewarn by letter the respondent of its intention to issue a second EAW, or to invite his

voluntary surrender to face the subject charge were also matters considered by the judge. Whilst in principle one can say that such

may possibly be relevant factors, it is difficult to conceive of a situation, compatible with the functioning essentials of the EAW

process, save in the most improbable circumstances, where the failure of the requesting authority to adopt either suggestion could

have any value.

Application of the above to this Case:

126. By reference to the summary of the background outlined at para.7 supra, it seems to me that the facts in this case do not

demonstrate the likely existence of harmful consequences, peculiar to the respondent, which are of such significance as to outweigh

the public interest in ordering his return. The matters identified by him are all comfortable within the expected consequences which

might flow from and which are inherent to the operation of the process itself. He is not a person dependent on others in any legally

meaningful sense, and likewise others are not so dependent on him. There are no children or other family members who will, again in

such a sense, suffer because of his return. Whilst the delay in the execution of the 2nd EAW is a relevant factor, that in itself

however, is not sufficient to tip the scales in his favour. I should add however that undue delay in execution, without explanation as

in this case, is a matter that should be kept under review.

127. Overall however, I would therefore conclude in saying that a s.16 order should issue.

128. Finally, I would answer the re-phrased certified question by stating that when the High Court, as executing judicial authority, is

called upon to apply the principle of proportionality it should do so in accordance with the Heaney jurisprudence having due regard to

the Strasbourg case law where appropriate. I would further state that matters such as the likely sentence which the affected person

might receive on conviction and the cost and burden on the State in executing the EAW, are not appropriate for consideration.