About this case:

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Delivering the judgment of the five-judge Court, Chief Justice Frank Clarke said that the issue raised by a man whose surrender had been ordered by the High Court was a novel matter of European law which had to be considered by the CJEU.

Background

Mr Thomas Joseph O’ Connor was the subject of a request from the UK for his surrender on foot of a European arrest warrant.

In the High Court in 2017, Justice Donnelly affirmed an order for Mr O’Connor’s surrender.

In his application to the Supreme Court, Mr O’Connor 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 to this Court is met.

Chief Justice Clarke explained that as the UK gave notification under Article 50 of the Treaty on European Union, thereby leaving the EU; Mr. O’ Connor, as a EU citizen, would be surrendered to another jurisdiction and possibly be detained beyond the time when the UK is a member of the EU.

As such, it was argued that the rights which Mr O’Connor might otherwise enjoy as a EU citizen, having been surrendered to another EU jurisdiction on foot of the European arrest warrant regime, will no longer be capable of enforcement by him as matters of European law.

Mr O’Connor argued that his surrender was no longer legally permissible.

Stateable question

Chief Justice Clarke said that the Supreme Court could not conclude that the question which Mr O’Connor raised was unstateable.

It could not safely be determined whether the Court of Justice would consider that the underlying substratum of the European arrest warrant regime was removed by Brexit, in circumstances where a person whose surrender is sought may be at risk that the full rights which that person might enjoy would not be guaranteed after the UK’s departure.

In addition, the Supreme Court “could not conclude that the CJEU might not itself determine that the question of whether surrender can properly be directed at this stage might be dependent on an analysis of the circumstances of the case…”.

In particular, if the principal argument advanced on behalf of Mr. O’Connor were to find favour with the CJEU, it would follow that his appeal would have to be allowed, for that point clearly arises in these proceedings and if correct would lead to the conclusion that he could not be surrendered to the UK at this stage.

CILFIT Threshold

Considering Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health (Case 283/81) ECR 3415, which established the obligation on a court of final appeal of a member state to refer an issue to the CJEU; Justice Clarke said that the low threshold established had to be “faithfully applied by the courts which are governed by it”.

As such, the Supreme Court had to concluded that there was a novel issue of European law arising.

Justice Clarke added that “…the fact that the point is novel and relies on very general principles of European law does not mean that it is unstateable or fails to meet the CILFIT requirement. The point is not, therefore, acte clair”.

Reference to CJEU

Considering all of the foregoing, the Supreme Court drafted the following possible question for determination by the CJEU:

“Having regard to:-

(1) (a) The giving by the United Kingdom of notice under Article 50 of the TEU;

(b) The uncertainty as to the arrangements which will be put in place between the European Union and the United Kingdom to govern relations after the departure of the United Kingdom; and

(c) The consequential uncertainty as to the extent to which Mr. O’Connor would, in practice, be able to enjoy rights under the Treaties, the Charter or relevant legislation, should he be surrendered to the United Kingdom and remain incarcerated after the departure of the United Kingdom.

Is a requested state required to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be permitted, either

(i) in all cases?

(ii) having regard to the particular circumstances of the case? or

(iii) in no cases?

(2) If the answer to Q. 2 is that set out at (ii) what are the criteria or considerations which a court in the requested member state must assess to determine whether surrender is required?

(3) In the context of Q. 2, can the Court of a requested member state postpone the finalisation of a request for surrender to await greater clarity about the relevant legal regime which is to be put in place after the withdrawal of the relevant requesting member state from the Union?”