The Irish Supreme Court has refused to extradite a company director wanted for fraud in the UK because by the time he finishes his prison sentence the UK will have left the European Union. The judgement revealed that he is one of about 20 people who are in a similar position resisting removal to the UK on identical legal grounds.
The appellant Mr O’Connor was convicted of tax fraud in London in 2007 but then absconded on bail and fled to Ireland. The UK authorities issued a European arrest warrant and he was arrested by the Gardaí. Mr O’Connor is subject of a request from the United Kingdom for his surrender on foot of a European arrest warrant. Mr O’Connor sought leave to appeal his surrender which was delivered in the High Court in, Minister for Justice v. O’Connor [2017] IEHC 518, July 2017. The central issue the asserted on behalf of Mr O’Connor was “the Brexit Point”. It is argued that an issue arises on this potential appeal concerning the effect or potential effect of Brexit on this European arrest warrant proceeding such that the constitutional threshold for leave to appeal is met.
The Supreme Court noted that the legal framework which will apply to relations between the European Union and the United Kingdom after Brexit is unclear. However, the fact that the United Kingdom has given notification under Article 50 of the Treaty on European Union gives rise to a situation where Mr O’Connor, an EU citizen, would be surrendered to a country where the EU charter of fundamental rights might no longer be capable of enforcement. If returned to the UK, the Court noted, he would “continue to be imprisoned in the United Kingdom beyond 29 March 2019, when the United Kingdom will withdraw from the European Union”.
There are two arguments in relation to how Mr O’Connor’s surrender should be determined. The first being that it should be decided on the basis of the law as it is now and that no issue of European law arises. The counter argument being that his European law rights cannot be guaranteed should he be imprisoned in the United Kingdom for a period which would go beyond the date of Brexit. In particular any rights which might accrue to Mr O’Connor under the Charter will not necessarily be capable of enforcement following the UK’s exit from the European Union.
In light of the above the Supreme Court was satisfied that an issue of European law relevant to determining the outcome of these proceedings had arisen. Further that the point is a novel one and not subject to the jurisprudence of the Court of Justice. There had never been a case of a country leaving the European Union before.
Supreme Court declined to extradite him and instead ruled that the case should be referred to the European Court of Justice to resolve the issue. The Supreme Court will hear from submissions from the parties regarding the wording of the questions to be referred to the Court of Justice.
To read the full judgement- click here.
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