About this case:

• Citation:
  [2024] IESC 9
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Marie Baker

Delivering judgment for the Supreme Court, Ms Justice Marie Baker considered that: “Mere evidence of deficiencies is not always efficient to establish the proposition that the requested individual will be subject to inhuman or degrading treatment in the event of surrender…It must involve a specific and precise determination by the requested Court of a substantial and real risk.”

Background

Changes to the legislative regime permitting ‘release on licence’ were made by the Terrorist Offenders (Restriction of Early Release) Act 2020 and Article 20A of the Criminal Justice (Northern Ireland) Order 2008 (as amended), becoming operative in respect of Northern Ireland from 30 April 2021, resulting in those convicted of certain terrorism offences no longer being entitled to automatic release on licence halfway through their sentence, instead having to serve at least two-thirds of their sentence before release on licence is possible and having to secure approval from the Parole Commissioners.

In R v. Morgan [2021] NICA 67, the Court of Appeal found that the retrospective application of the new law amounted to the modification of a penalty already imposed by the trial judge in respect of the appellants in that case, granting a declaration of incompatibility with Article 7 ECHR but refusing to make an order that the amending legislation was invalid or unenforceable due to the interaction of Northern Irish legislation with the ECHR. On appeal, the UK Supreme Court found that there was no retroactive increase in the penalty and that it was only the manner in which sentences were to be executed that had changed.

The High Court

Prior to the delivery of the judgment of the UK Supreme Court, the appellant challenged an order of the High Court surrendering him to Northern Ireland to be charged with terrorism offences pursuant to a warrant issued under a UK-EU Surrender Warrant. The High Court distinguished Morgan on the basis inter alia that those appellants had already been convicted.

Leave to appeal was granted to determine whether it would breach Article 38 of the Constitution for the appellant to be returned to Northern Ireland to face charges arising from events in 2021 where changes in the law governing the remission of his sentence could adversely affect his interests.

The Supreme Court also observed the connection between the constitutional question and that arising under the principles of legality in Article 7 of the European Convention on Human Rights (ECHR) and Article 49 of the Charter of Fundamental Rights of the European Union (CFREU).

The Supreme Court

The Supreme Court noted that the core question on appeal was whether the surrender of the appellant was permissible in light of his arguments on the compatibility of the retrospective application of the amended sentence regime, which included that the change in parole effected by the new rules is severe, unforeseeable and breached his legitimate expectation.

The court noted that “an argument by an individual that his or her rights might be infringed by surrender because of the approach to the adjudication of rights is never sufficient, unless it can be shown that the system of justice in the requesting state is such that that person has no procedural means of arguing for a defence of those fundamental rights, or that the substantive laws of the requesting state do not recognise, enforce or uphold those rights… to refuse surrender on foot of a valid EAW must be seen as wholly exceptional”.

Having conducted an examination of relevant caselaw, Ms Justice Baker determined inter alia that the appellant had not established a breach of his ECHR rights having failed to identify any systemic flaw foreshadowing “a likely and egregious breach of Convention rights were surrender to be ordered”, and that the appellant had the remedy of applying to the European Court of Human Rights if he wished.

In respect of the foreseeability of the legislative change, the judge noted the judgment of the European Court of Human Rights in Kafkaris v. Cyprus (App. No. 21906/04), [2009] 49 E.H.R.R. 35, which determined that the newly adopted Cypriot law lacked sufficient precision to enable the applicant to discern or anticipate the scope of the penalty and its manner of execution.

Recounting the UK Supreme Court’s finding that the legislative change in question was foreseeable as similar changes had already occurred in other contexts and that there was a strong public policy reason for the change, Ms Justice Baker rejected the appellant’s arguments, noting that “no absolute right to remission exists in Irish law, and remission is granted subject to a very wide executive discretion… Release on licence is no more than a privilege, one exercisable by the executive, and is not part of the judicial function…”

Turning to consider the implications of the appellant’s CFREU rights, the judge considered that no judgment has considered the implication of Article 49 on a change in parole or licence provisions impacting the sentence of convicted persons, or of those charged with crimes allegedly committed before such change.

The court opined that whilst the executing state is competent to interpret the CFREU, a reference was required concerning the criteria to be applied by the executing authority in assessing compliance with the principle of legality in respect of criminal penalties, and whether there is a risk that those rights might be breached, in circumstances where the court is satisfied that surrender is not precluded by either the Constitution or the Convention.

Conclusion

Accordingly, the court referred a question to the European Court of Justice asking if, in light of a number of considerations, “…a court against whose decision there is no right of appeal for the purposes of Article 267(3) TFEU, and having regard to Art. 52(3) of the Charter and the obligation of trust and confidence between member states and those obliged to operate surrender to the EAW provisions pursuant to the Trade and Cooperation Agreement, entitled to conclude that the requested person has failed to establish any real risk that his surrender would be a breach of Art. 49(2) of the Charter or is such a court obliged to conduct some further inquiry, and if so, what is the nature and scope of that inquiry?”

Minister for Justice and Equality v. Sean Walsh [2024] IESC 9