About this case:

• Judgment:
  External link

Preliminary Ruling Procedure

In the High Court, Justice Donnelly initially considered eight cases on “the Brexit issue”, in relation to which the Supreme Court made a request for a preliminary ruling from the CJEU under Article 267 TFEU in O’Connor. In O’Connor, the Supreme Court requested that the case be heard in an expedited manner in accordance with Article 105 of the Rules of Procedure.

Justice Donnelly explained that, considering Article 267(4), there was no mandate imposed upon the CJEU to act without delay in O’Connor because he is not in custody (Samet Ardic (Case C-571/17 PPU) considered).

The eight cases before Justice Donnelly were made on the basis that they were custody cases, and would likely be dealt with as part of the Urgent Preliminary Ruling Procedure of the CJEU. Only seven of the cases involved people in custody solely on UK European Arrest Warrants but whose cases were adjourned pending the decision of the Supreme Court on the Brexit issue (to be made after the CJEU delivers its ruling) – as such, one of the respondents, who in fact was in custody serving a sentence, was not considered by the court.

Notably, evidence presented in literature which made reference to CJEU reports made it clear that accelerated procedures “resulted in much earlier hearings and that depending on which figure is relied upon, the expedited procedure takes either twice or three times as long as the urgent procedure”.

RO’s Case

Justice Donnelly said that it was unnecessary to send more than one case forward, and decided that it was appropriate to refer the case of RO. Justice Donnelly explained that the other cases were all prosecution only cases, whereas RO had been heard “virtually to finality”.

Justice Donnelly said that there was only an “outstanding matter of making a decision on Article 3” – i.e. the claim that the conditions under which RO would be held in Northern Ireland would constitute inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights and Article 4 of the Charter of Fundamental Rights of the European Union. Justice Donnelly was satisfied that “full and final consideration of that issue could only be given when the issue of Brexit is resolved”.

Inviting counsel to make submissions for the referral to be made, Justice Donnelly noted that the charges alleged RO were “of the gravest seriousness”, but that he also had “an entitlement to innocence”.

Request to Avail of the Urgent Preliminary Ruling Procedure

Following the delivery of the foregoing judgment, Justice Donnelly delivered her judgment with the substantive text of the Request for Preliminary Ruling on the RO case. Justice Donnelly explained that, notwithstanding the existing preliminary reference from the Supreme Court in O’Connor, the High Court decided to refer “essentially the same questions in this case”

Justice Donnelly requested that the CJEU consider determining RO’s case pursuant to the urgent preliminary ruling procedure set out in Article 107 of the Rules of Procedure of the Court of Justice.

In support of the request to avail of the urgent preliminary ruling procedure, the High Court relied on para 4 of Article 267 TFEU which refers to the obligation to “act with the minimum of delay” in respect of a person in custody who is the subject matter of a preliminary reference.

Justice Donnelly added that the “use of the ordinary, or even the expedited, preliminary reference procedure would significantly add to the period” that RO would spend in custody, also noting other persons remanded in custody on EAW and those whose sentences may expire before the Brexit issue is resolved and therefore be remanded in custody awaiting this.

As the EAW proceedings may not be concluded for some time, Justice Donnelly said that it was highly desirable that the urgent procedure be permitted in this case – especially where RO is in custody “solely on these EAWs, which were issued for the purpose of conducting a criminal prosecution and in respect of which he has a presumption of innocence”.

Considering all of the above, Justice Donnelly proposed to refer the following questions:

Having regard to:

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 the respondent 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,

1. Is a requested Member State required by European Union Law to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be required under the national law of the Member State,

(i) In all cases?

(ii) In some cases, having regard to the particular circumstances of the case?

(iii) In no cases?

2. If the answer to Q.1 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 prohibited?

3. In the context of Question 2 is the court of the requested Member State required to postpone the final decision on the execution of the European arrest warrant 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

(i) In all cases?

(ii) In some cases, having regard to the particular circumstances of the case?

(iii) In no cases?

4. If the answer to Question 3 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 it is required to postpone the final decision on the execution of the European arrest warrant?