Supreme Court dismisses appeal holding courts cannot review foreign court warrant validity under Irish law.

THE SUPREME COURT

344/08

Murray C.J.

Fennelly J.

Finnegan J.

IN THE MATTER OF THE EUROPEAN ARREST WARRANT

ACT 2003

BETWEEN

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT/RESPONDENT

AND

MICHÉAL Ó FALLÚIN OTHERWISE MICHAEL FALLON

RESPONDENT/APPELLANT

JUDGMENT of Murray C.J. delivered on the 19th day of May 2010

I have read the judgment of Mr. Justice Finnegan. I agree with that judgment and the order he proposes, except that I

wish to make some additional observations concerning s. 10 of the Act of 2003, as amended by s. 71 of the Criminal

Justice (Terrorist Offences) Act 2005, and its reference to the circumstance where a judicial authority in an issuing state

“duly issues a European Arrest Warrant”.

Where it is established that a judicial authority within the meaning of the Act of 2003 has in fact issued the European

Arrest Warrant in question it seems to me that it should be considered to have been “duly issued” within the meaning of

that section. Neither the Act nor the Framework Decision in my view can be interpreted as permitting, let alone requiring,

the courts of the executing state to embark on what would be in effect a judicial review of the validity of an order of the

court or judicial authority of the requesting state according to the law of that State. I do not consider that there is

anything within the Framework Decision and in particular the Act of 2003 which envisages that our courts would conduct

a judicial inquiry in order to determine whether as a matter of German law, French law, United Kingdom law, Latvian law,

or as the case may be, a European arrest warrant produced and authenticated as having been issued by the relevant

judicial authority is valid. Issues concerning the validity of an order of a court within the meaning of its own national law

invariably fall to be tried and determined by the courts of that country. It would be invidious, to say the least, if the

court of one country were to pass judgment on the validity of an order or act of a court in another country under the

latter’s national law and set it aside as not having the effect which it purports to have on its face. Accordingly I do not

consider that the use of the word “duly” in the Act of 2003 (though now removed by an amendment in the Criminal

Justice (Miscellaneous Provisions) Act 2009) was ever intended to have such a meaning or effect which would require our

courts, in the field of public law to exercise an unprecedented form of jurisdiction.

Of course a state may wish to provide certain safeguards so that the order of a foreign court made in respect of any

individual is not automatically enforceable in every respect in its own country. Where this is done it is achieved, as is

generally the case with regard to the enforcement in this State of judgments or orders of foreign courts, including the

European Arrest Warrant itself, by stipulating in legislation that there are conditions or pre-conditions which must be met

before an order or judgment becomes enforceable under our national law. Compliance with such conditions or pre-

conditions give rise to issues separate and wholly distinct from any issue as to whether the foreign court making the order

or issuing the warrant had jurisdiction to make the order or had validly done so under its own law.

It is not necessary in the present context to examine whether, in enforcing the European Arrest Warrant system, there

might be some exception to this rule in egregious circumstances such as where there was some element of fraud involved

in seeking the issuing of a warrant but even then that would also seem to be an issue to be addressed by the Court of

the State concerned.

On the facts of this case, given that the learned High Court judge had before him a European Arrest Warrant which on its

face contained the information and was in the form required by the Act of 2003 and the Framework Decision, and there

being no dispute that the warrant had actually been issued by an English Court, I do not consider that it was necessary

for him to go behind the warrant so as to examine the evidence of English law and the related issue. In so far as he did do

so I agree with Finnegan J., that he was entitled to come to the conclusion which he did regarding the meaning and

effect of English law and the validity of the warrant issued by the English Court.