Court of Appeal: Swedish system of pre-trial detention does not violate accused’s human rights

About this case:

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The man accused of rape in Sweden was unsuccessful in challenging his surrender in the High Court, however the judge stated that its decision involved a point of law of exceptional public importance that had to be answered by the Court of Appeal.

Background

Under a European arrest warrant dated December 2014, Sweden sought the rendition of an Irish man, WB, for the purpose of prosecuting him for the offence of rape.

Having been arrested in Ireland on foot of the said warrant, WB opposed in the High Court the making of a surrender order with respect to him on the grounds, inter alia, that his surrender would place him at real risk of an egregious breach of his fundamental rights.

It was specifically contended that in the circumstances of his case his surrender was prohibited by s. 37 of the European Arrest Warrant Act 2003, and more particularly by s. 37(1)(a) and (b) of that Act, because Sweden does not have a bail system that leans against pre-trial incarceration unless it is absolutely necessary.

WB contended that under Swedish law there is, in the case of serious offences, effectively a presumption in favour of pre-trial detention, rather than the reverse, and it was apprehended as a matter of very high likelihood that, if surrendered, WB would be placed in pre-trial detention immediately upon his return, notwithstanding his presumption of innocence and the absence of evidence tending to suggest that he was either a flight risk or likely to interfere with witnesses.

In the High Court, Ms Justice Donnelly did not uphold WB’s objections to his surrender and made an order pursuant to s. 16(1) of the European Arrest Warrant Act 2003 directing that WB be surrendered to such person as was duly authorised to receive him on behalf of the Kingdom of Sweden.

By a further order, pursuant to s. 16(11) of the European Arrest Warrant Act 2003, the High Court certified that its decision, and order to surrender WB, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal:

“Does the Swedish system of pre-trial release which requires that where there is probable cause that a person is suspected of a serious crime that he or she will remain in custody unless it is obvious that this is not necessary and where Swedish law requires a weighing up of the detriment to the suspect and other interest as against detention amount to such an egregious violation of human rights that the surrender ought to be refused as a result?“

Court of Appeal

Echoing remarks in Minister for Justice Equality and Law Reform v. Brennan 3 IR 732, Justice Edwards opined that “the mere fact that Swedish law attaches different weight to the considerations in question, and in that regard is perhaps even radically different to Irish law, does not automatically mean that their system is fundamentally defective and that a refusal of surrender is required to protect WB’s rights”.

Justice Edwards added that it was “not without significance that the law in Ireland on pre-trial detention has not remained static and that it has been changed significantly since O’Callaghan’s case, admittedly by constitutional referendum, and that bail may now be denied even in this jurisdiction on other grounds including the risk of the commission of other serious offences”.

Citing Nottinghamshire County Council v. B and Others I.E.S.C. 48 (unreported, Supreme Court, 15th December, 2011), Justice Edwards said that it was difficult in the circumstances for WB to tenably contend that the Swedish system departs “so markedly from the scheme and order envisaged by the Constitution” as to require refusal of surrender.

Justice Edwards stated that WB’s contention that the Swedish system de-facto involves a presumption against liberty was, at first glance, potentially his strongest point – however, Justice Edwards agreed with the High Court that “the reality is more nuanced and that in truth there is no such presumption”.

Although an accused in Sweden is required to produce very cogent and compelling evidence in order to persuade a Court that detention is unnecessary; that is not the same thing as saying that the necessity for detention is presumed to be obvious.

Justice Edwards was satisfied that in Sweden there is no presumption of necessity for detention, in the sense of an inference recognised by law which stands until the contrary is proved. Evidence of risk is still required to be adduced by the applicant for a pre-trial detention order in every case and the court is obliged to conduct a weighing of the competing interests.

The High Court judge was therefore right in characterising the Swedish rule as operating to place a high evidential burden on a person who is reasonably suspected of a serious offence and who desires to be allowed to remain at liberty, and in the circumstances, the High Court judge was also correct in dismissing the case based on s.37(1)(b) of the European Arrest Warrant Act 2003.

Answering the question referred to the Court of Appeal by the High Court in the negative; Justice Edwards ruled that the Swedish system of pre-trial incarceration does not amount to such an egregious violation of human rights that surrender under a European arrest warrant ought to be refused as a result.