Decision due on Brexit arrest warrants; EU’s top court will rule today on extradition to UK after March, 2019

By Seán McCárthaigh

The EU’s top court will this week signal if its member countries will be able to operate extradition proceedings with the UK as normal after Brexit.

Tomorrow, the Court of Justice of the European Union (CJEU) will issue a legal opinion on a challenge brought by a suspected murderer and rapist against his extradition to the UK from Ireland.

The case was referred to the CJEU by the High Court, which has asked the Luxembourg-based court what impact, if any, the UK’s intention to leave the EU will have on the operation of the system of European arrest warrants.

Brexit has raised uncertainty over the legal process for extradition that will be put in place after the UK’s withdrawal.

The High Court has requested the CJEU to fast track the case, because of the urgency of the proceedings, given the UK’s planned exit from EU membership in March, 2019.

The ruling is a test case that will have widespread implications for the future operation of extradition proceedings between the UK and the 27 EU member states.

Several other individuals, who are the subject of a European arrest warrant by British and Northern Irish authorities, including former INLA leader Declan Duffy, have also cited Brexit as a reason to challenge their extradition from the Republic.

The High Court has asked the CJEU if an EU member state is required by EU law to decline to surrender a person who is the subject of a European arrest warrant to the UK, in all, some, or no cases.

It has also asked if a court that has been asked to approve an extradition should postpone the decision until there is greater clarity over the post-Brexit legal regime for the operation of European arrest warrants.

The case refers to a challenge brought by an unnamed individual against his extradition to face charges of murder, arson, and rape, on foot of two European arrest warrants issued by the UK in early 2016.

The man was arrested and has been held in custody since February 3, 2016, following receipt of the warrants by the Irish authorities.

He is contesting the extradition proceedings, claiming concerns that he will face potentially inhuman and degrading treatment, if surrendered to the UK.

Specifically, he is claiming he will be imprisoned in a country that is no longer a member state of the EU, as the result of an order made under EU law.

As a consequence, his lawyers have argued that he may not be guaranteed certain fundaments rights, as well as rights relating to the deduction of periods of detention in other EU countries.

They also claim that he would not have access to the CJEU post-Brexit, if there was any dispute about such matters.

When the case came before the High Court, lawyers for the Minister of Justice, Charlie Flanagan, claimed the law must be considered as it is today, and not as it might be in the future, after the UK’s withdrawal from the EU.

They argued there were no specific or implied measures to prevent his extradition from going ahead now.

However, the High Court said it could not rule out the possibility that he might have an implied right, deriving from his status as an EU citizen, not to be extradited in circumstances where there was a question over his ability to avail of right conferred on him by EU legislation.

The CJEU is expected to set out what criteria should be used in deciding, if at all, that it would be permissible to refuse a requested extradition to the UK.