The Minister for Justice and Law Reform -v- Strzelecki [2015] IESC 15 (26 February 2015)

Judgment


Title:	The Minister for Justice and Law Reform -v- Strzelecki
Neutral Citation:	[2015] IESC 15
Supreme Court Record Number:	470/13
High Court Record Number:	2011 74 EXT
Date of Delivery:	26/02/2015
Court:	Supreme Court
Composition of Court:	Denham C.J., Murray J., Hardiman J., O'Donnell Donal J., Dunne J.
Judgment by:	Denham C.J.
Status:	Approved


Judgments by	Link to Judgment	Result	Concurring
Denham C.J.	Link	Other (see notes)	Murray J., Hardiman J., O'Donnell Donal J., Dunne J.

Notes on Memo: Allow and Remit to the High Court

___________________________________________________________________________

THE SUPREME COURT

Appeal No. 470/13

Denham C.J.
Murray J.
Hardiman J.
O’Donnell J.
Dunne J.

Between/

The Minister for Justice and Law Reform

Applicant/Respondent

and

Sylwester Jozef Strzelecki

Respondent/Appellant

Judgment delivered on the 26th day of February, 2015 by Denham C.J.

1. In this appeal the Court is asked, as a preliminary issue, whether objections under s. 37 of the European Arrest Warrant Act, 2003, as amended, hereinafter referred to as “the Act of 2003, as amended”, on human or fundamental rights issues, may be raised when a person has been surrendered previously under a European arrest warrant and the requesting state subsequently seeks consent to prosecute the surrendered person for offences additional to those the subject of the European arrest warrant on which he was surrendered.

2. This is an appeal by Sylwester Jozef Strzelecki, the respondent/appellant, referred to as “the appellant”, from the decision of the High Court (Edwards J.) delivered on the 31st October, 2013, when the High Court refused to consider objections raised by the appellant pursuant to Part III, and specifically s. 37 of the Act of 2003, as amended, prior to making an order, pursuant to s. 22(7) of the Act of 2003, as amended, consenting to the further prosecution of the appellant in respect of two offences outlined in the request for further prosecution issued by the Republic of Poland, dated the 27th December, 2012.

The High Court
3. The Republic of Poland hereinafter referred to as “Poland”, issued a European arrest warrant for the appellant on the 25th May, 2010, seeking his surrender for prosecution for seven drug trafficking offences. On the 2nd July, 2012, after a hearing, the High Court made an order pursuant to s. 16 of the Act of 2003, as amended, surrendering the appellant to Poland. A short time after the order the appellant was transferred to Poland. The High Court was informed that the appellant was remanded in custody awaiting trial in Poland.

4. The High Court received a request, dated the 27th December, 2012, from Poland seeking consent for the prosecution of the appellant in respect of two further drug trafficking type offences that were not on the original European arrest warrant.

Preliminary issue
5. A preliminary issue was raised in the High Court as to the correct interpretation of s. 22(8) of the Act of 2003, as amended. This is the sole issue before the Court.

6. In the High Court the Minister for Justice and Law Reform, referred to as “the Minister”, submitted, inter alia, that a correct interpretation of s. 22(8) of the Act of 2003, as amended, does not invoke s. 37 of the Act of 2003, as amended, or human or fundamental rights based objections, relying on the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, or the Constitution of Ireland. The Minister contended that on a correct interpretation of s. 22(8) of the Act of 2003, as amended, such issues are not justiciable by the Court in considering whether or not to grant its consent to the prosecution of the appellant in the issuing state for further offences to those which had been the subject of the surrender order.

7. Counsel for the appellant objected to the granting of the consent, inter alia based on the provisions of Part 3 of the Act of 2003, as amended, i.e. s. 37, including human or fundamental rights issues, relying on the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, and the Constitution of Ireland. Also, the appellant invoked Article 13 of the European Convention on Human Rights, submitting that the appellant has a right thereunder to seek an effective remedy at the first available opportunity, i.e. before the High Court in Ireland at the s. 22 hearing.

High Court judgment
8. Having stated the submissions of the parties, the learned High Court judge held:-

“The Court in fact finds itself in agreement with counsel for the [Minister] who submitted that her interpretation of s. 22(8) is entirely consistent with the terms of Article 27(4) of the Framework Decision, Article 27(4) refers specifically to Article 3 and 4, respectively, of the Framework Decision which are, as counsel for the [Minister] has correctly stated, concerned with mandatory grounds for non execution and optional grounds for non execution. Neither of those provisions is concerned with fundamental rights.

It is certainly true that recital 12 to the Framework Decision emphasises that it respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. However, confining the grounds for possibly refusing a request for further prosecution to an objection to the mandatory grounds for non execution and the optional grounds for non execution contemplated in Articles 3 and 4 of the Framework Decision is not to disrespect fundamental rights or to fail to observe the principles recognised by Article 6 TEU. It is entirely reasonable that the Framework Decision should contemplate that fundamental rights guaranteed under the ECHR and, indeed, under the Charter of Fundamental Rights of the European Union, to a person in the position of the [appellant], i.e., a person who has already been surrendered and is no longer in the territory of the executing state, are enforceable rights to be invoked before the courts of the issuing state. The issuing state is a signatory to, and has ratified, the ECHR, and as a member of the EU is of course also bound to recognise and apply the Charter. This is not a situation in which there are no remedies available to a person in the position of the [appellant] in the place where he now is. Moreover, in this Court's belief, it is his entitlement under Article 13 ECHR, but also his obligation, to seek an effective remedy in respect of those concerning his fundamental rights of which he complains before the courts of the issuing state, rather than before this Court which is much less well equipped to adjudicate upon whether there is substance or otherwise to what he contends may happen to him.

It is an entirely different situation where the person concerned is still present in the executing state awaiting surrender. Insofar as persons facing possible surrender by this state are concerned, our domestic legislation has gone beyond what is expressly required by the Framework Decision and has provided in s. 37 of the Act of 2003 for an objection to surrender (the word ‘surrender’ requires emphasis) on either Convention or constitutional grounds. Moreover, it is certainly the case that the courts in this and other jurisdictions have exhibited a readiness to intervene, and in an appropriate case to refuse surrender on fundamental rights grounds, where there is a legally justifiable basis for doing so. In our case that basis is provided by s. 37 of the Act of 2003. However, even where our courts might potentially be entitled to intervene and refuse surrender they will not necessarily do so if the remedy being sought ought to be more appropriately pursued before the courts of the issuing state. A good example of this from our own jurisdiction is Minister for Justice Equality and Law Reform v Stapleton [2008] 1 I.R. 699.

I do not therefore consider that there is any basis for believing that a literal interpretation of s. 22(8) of the Act of 2008 would fail to reflect the intention of the Oireachtas. I am satisfied that the literal meaning of the provision is clear and unambiguous and that there are no grounds for believing that the Oireachtas intended other than that it should mean what it says.

In the circumstances I determine this preliminary issue in favour of the [Minister].”

9. In other words, the appellant had wished to argue that there was a real risk of his fundamental rights being violated if consent was given by the High Court. As a preliminary issue the High Court found that the appellant could not argue the point, that he could not rely on a submitted breach of fundamental rights as a bar to consent to further prosecution pursuant to s. 22(7) of the Act of 2003, as amended. The learned High Court judge then dealt with the request for consent, without considering issues of fundamental rights, held that he applied a literal meaning to s. 22(8) of the Act of 2003, as amended, and made an order granting consent to further prosecution of the appellant in Poland.

Notice of Appeal
10. The appellant filed a notice of appeal setting out three grounds, as follows:-

(i) The learned trial judge erred in law and/or principle in finding as a preliminary issue or otherwise that s. 37 of the Act of 2003, as amended, was of no application when considering a request for further prosecution pursuant to s. 22(7) of the Act of 2003, as amended.

(ii) The learned trial judge erred in law and/or principle in finding that that a person in the circumstances of the appellant could not raise human rights considerations as a bar to consent to further prosecution pursuant to s. 22(7) of the Act of 2003, as amended.

(iii) The learned trial judge erred in law and/or principle in giving consent to further prosecution pursuant to s. 22(7) of the Act of 2003, as amended, in respect of two offences outlined in request for further prosecution issued by Poland dated the 27th December, 2013.

Issues
11. The issues as identified by the appellant on this appeal are:-

(i) Whether the appellant, when there has been a request for further prosecution pursuant to s. 22(7) of the Act of 2003, as amended, can rely on breaches of fundamental rights as a bar to such consent being given.

(ii) Whether the High Court was correct in deciding that the words “the offence” as used in s. 22(8) of the Act of 2003, as amended, has the effect of excluding s. 37 of the Act of 2003, as amended, and confining the “importation” of Part 3 of the Act of 2003, as amended, to s. 38, 39, 41, 42, 43 and 44 of that Act.

(iii) Do the words “Part 3” of the Act of 2003, as amended, as used in s. 22(8) mean only some sections of Part 3 and not all of Part 3?

12. The Minister identified the three central claims of the appellant as:-

(i) Having regard to the provisions of s. 2 of the Act of 2003, as amended, s. 22(8) of the Act of 2003, as amended, must be read insofar as possible in a manner compatible with the State’s obligations under the European Convention on Human Rights.

(ii) It is possible to interpret s. 22(8) of the Act of 2003, as amended, as requiring the High Court to refuse to grant consent to further prosecution where that would involve the requesting state, Poland, infringing any of the provisions of the European Convention on Human Rights.

(iii) Articles 3 and 13 of the European Convention on Human Rights are engaged by a decision to grant consent under s. 22 of the Act of 2003, as amended.

13. The Minister submitted, inter alia, that:-

(i) Section 22(7) and (8) of the Act of 2003, as amended, must be interpreted insofar as possible in the manner that conforms with the provisions of the Framework Decision, if that interpretation is inconsistent with Irish domestic law, including the European Convention on Human Rights Act, 2003, then European Union law, takes precedence.

(ii) Irrespective of the foregoing, it is not possible within the meaning of s. 2 of the European Convention on Human Rights Act, 2003, to interpret s. 22(8) of the Act of 2003, as amended, as requiring the High Court to refuse to grant consent to further prosecution where that would involve the requesting state, Poland, infringing any of the provisions of the European Convention on Human Rights. In this regard, it was submitted, the appellant has confused the wording of s. 3 of the U.K. Human Rights Act, 1988, with the very different wording and scope of s. 2 of the European Convention on Human Rights Act, 2003.

(iii) In any event, having regard to the provisions of Article 1 of the European Convention on Human Rights, none of the Articles of the Convention are engaged by a decision to grant consent under s. 22(7) and (8) of the Act of 2003, as amended.

Statutory Law
14. Sections 22(7) and (8) of the Act of 2003, as amended, provide:-

(7) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to -

(a) proceedings being brought against the person in the issuing state for an offence,

(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or

(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state in that behalf.

(8) The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under this Act.

15. Section 2 of the European Convention on Human Rights Act, 2003, states:-

“(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.

(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”

The Framework Decision
16. The Council Framework Decision of 13 June, 2002, on the European arrest warrant and the surrender procedures between member states, is referred to as “the Framework Decision”.

17. Recital 12 of the Framework Decision provides:-

“This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.”

18. Article 1(3) of the Framework Decision states:-

“This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.”

Treaty on European Union
19. Article 6 of the Treaty on European Union provides:-

“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”

20. The European Commission requested an opinion pursuant to Article 218(11) of the Treaty on the Functioning of the European Union, “the TFEU”, on the 4th July, 2013, of the Court of Justice of the European Union, as to whether the draft agreement providing for the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, “the ECHR”, was compatible with the Treaties.

21. The Court of Justice of the European Union delivered its opinion on the 18th December, 2014, Case C-2/13, stating that the agreement on the accession of the European Union to the ECHR is not compatible with Article 6(2) of the Treaty on European Union, “the TEU”, or with Protocol (No. 8) relating to Article 6(2) of the TEU on the accession of the Union to the ECHR.

European Convention on Human Rights, “the ECHR”
22. Member states have obligations in relation to the ECHR.

23. Article 1 of the ECHR provides:-

“Obligations to respect Human Rights.

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention.”

24. Section 1 of the ECHR, referring to rights and freedoms, includes a provision for a right to life, prohibition of torture, prohibition of slavery and forced labour, right to labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy and prohibition of discrimination.

Decision
25. The Framework Decision, and subsequently the European arrest warrant introduced in member states, were commenced to implement the principle of mutual recognition of judicial decisions and the mutual enforcement of arrest warrants amongst member states. It was to replace the system of extradition which had operated between member states.

26. The European arrest warrant was introduced to enable a more efficient surrender of persons amongst member states. It introduced a process operating between the judicial authority of one member state to another, with mutual respect for decisions. As recital 5 of the Framework Decision states:-

“…Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.”

27. However, the Framework Decision respects fundamental rights. Recital 12 has been set out previously in this judgment.

28. Part 3 of the Act of 2003, as amended, provides grounds for prohibition on surrender. Section 37 states:-

“37.—(1) A person shall not be surrendered under this Act if—

(a) his or her surrender would be incompatible with the State's obligations under—

(i) the Convention, or

(ii) the Protocols to the Convention,

(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38 (1)(b) applies),

(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or

(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less favourably than a person who—

(I) is not his or her sex, race, religion, nationality or ethnic origin,

(II) does not hold the same political opinions as him or her,

(III) speaks a different language than he or she does, or

(IV) does not have the same sexual orientation as he or she does,

(iii) were the person to be surrendered to the issuing state—

(I) he or she would be sentenced to death, or a death sentence imposed on him or her would be carried out, or

(II) he or she would be tortured or subjected to other inhuman or degrading treatment.”

29. Section 37 states clearly a policy of the Oireachtas to protect fundamental rights and freedoms, as provided.

30. The learned trial judge laid stress on the word “surrender” in his judgment. Having referred to the fact that the appellant has already been surrendered to Poland, the learned trial judge stated:-

“It is an entirely different situation where the person concerned is still present in the executing state awaiting surrender. Insofar as persons facing possible surrender by this state are concerned, our domestic legislation has gone beyond what is expressly required by the Framework Decision and has provided in s. 37 of the Act of 2003 for an objection to surrender (the word “surrender” requires emphasis) on either Convention or constitutional grounds. Moreover, it is certainly the case that the courts in this and other jurisdictions have exhibited a readiness to intervene, and in an appropriate case to refuse surrender on fundamental rights grounds, where there is a legally justifiable basis for doing so. In our case that basis is provided by s. 37 of the Act of 2003. However, even where our courts might potentially be entitled to intervene and refuse surrender they will not necessarily do so if the remedy being sought ought to be more appropriately pursued before the courts of the issuing state. A good example of this from our own jurisdiction is

Minister for Justice Equality and Law Reform v Stapleton

[2008]1 I.R. 699.”

31. Of course, the appellant here has been surrendered already on foot of a European arrest warrant. However, I am not satisfied that the provisions of the Act of 2003, as amended, in relation to fundamental rights, and in light of the Framework Decision, do not apply in the High Court on a request from a requesting state for consent to prosecute a person, who has already been surrendered, for further offences. The appellant has already been surrendered to Poland for the offences stated on the European arrest warrant. However, in essence, Poland is now seeking consent to his being prosecuted on two further offences, i.e. that his surrender now cover these extra offences. The word “surrender” covers his transfer to another state for prosecution on the offences set out in the European arrest warrant. However, in essence, the request for consent to prosecute him on two further offences is a request that his surrender also applies to the two additional offences set out in the request for consent by Poland.

32. Indeed, this analysis is consistent with s. 22(8) of the Act of 2003, as amended, which provides, as set out earlier in the judgment, that the High Court shall not give its consent under s. 22(7) if the offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under the Act of 2003 as amended.

33. Part 3 of the Act of 2003, as amended, and as set out earlier in this judgment, includes s. 37 which sets out grounds for which a person shall not be surrendered, such as grounds incompatible with the ECHR, and on human rights grounds.

34. The learned trial judge was satisfied that he was not disrespecting human rights in refusing to permit the appellant raise the issue of s. 37 and human rights when the issue of the consent request from Poland came before the High Court. He stated:-

“It is certainly true that recital 12 to the Framework Decision emphasises that it respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. However, confining the grounds for possibly refusing a request for further prosecution to an objection to the mandatory grounds for non execution and the optional grounds for non execution contemplated in Articles 3 and 4 of the Framework Decision is not to disrespect fundamental rights or to fail to observe the principles recognised by Article 6 TEU. It is entirely reasonable that the Framework Decision should contemplate that fundamental rights guaranteed under the ECHR and, indeed, under the Charter of Fundamental Rights of the European Union, to a person in the position of the respondent, i.e., a person who has already been surrendered and is no longer in the territory of the executing state, are enforceable rights to be invoked before the courts of the issuing state. The issuing state is a signatory to, and has ratified, the ECHR, and as a member of the EU is of course also bound to recognise and apply the Charter. This is not a situation in which there are no remedies available to a person in the position of the respondent in the place where he now is. Moreover, in this Court's belief, it is his entitlement under Article 13 ECHR, but also his obligation, to seek an effective remedy in respect of those concerning his fundamental rights of which he complains before the courts of the issuing state, rather than before this Court which is much less well equipped to adjudicate upon whether there is substance or otherwise to what he contends may happen to him.”

35. I am satisfied that the learned High Court judge fell into error in excluding the appellant from raising s. 37 of the Act of 2003, as amended, or human rights, before the Court. As already pointed out, s. 22(8) of the Act of 2003, as amended, itself refers to Part 3 of the Act. Further, the word “surrender” is applicable when there is an application for consent from a requesting state to prosecute a person for additional offences to those for which he has already been surrendered: the request is in essence for consent for the surrender to cover the additional offences.

36. I am satisfied that this interpretation conforms with the Framework Decision.

37. I have considered the principle of conforming interpretation previously, for example in Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518 at p. 531.

“In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision. Thus, the national court when applying the national law should do so as far as possible in light of the Council framework decision, to attain the result sought.”

38. The principle has been explained clearly in Minister for Justice, Equality and Law Reform v. Altaravicius [2006] 3 IR 148 at p. 156 by Murray C.J., who stated:-

“When applying and interpreting national provisions giving effect to a Framework Decision the courts ‘must do so as far as possible in this light of the wording and purpose of the Framework Decision in order to attain the result which it pursues’(see

Criminal proceedings against Pupino (Case C-105/03

) [2005] E.C.R. I-05285). The principle of conforming interpretation is limited, as the Court of Justice has pointed out in Pupino and other cases, to the extent that it is possible to give such an interpretation. It does not require a national court to interpret national legislation

contra legem

. If national legislation, having been interpreted as far as possible in conformity with community legislation to which it purports to give effect, but still falls short of what is required by the latter, a national court must, as a general principle, apply that legislation as interpreted although there may be other consequences for a member state which has failed to fully implement a directive or framework decision.”

39. I am satisfied that Irish law does not exclude issues of fundamental rights at any stage of a process under the Act of 2003, as amended. This includes an application for consent subsequent to an initial successful application from a requesting country. I do not consider this is contrary to the Framework Decision.

40. It is open to a person before the Courts under the Act of 2003, as amended, to invoke s. 37, or to make objections on the basis of fundamental rights, relying on the European Convention on Human Rights Act, 2003, or the Constitution. A person is not excluded from raising such concerns in the Courts.

41. Thus, I am satisfied that the learned trial judge erred in principle in finding as a preliminary issue that s. 37 of the Act of 2003, as amended, was of no application when considering a request for further prosecution pursuant to s. 22(7) of the Act of 2003, as amended.

42. However, whereas a person may not be excluded from raising issues of fundamental rights, the jurisprudence as established in case law is applicable. Thus, a court may determine that such issues are to be, or may be, litigated in the requesting state. For example, in Minister for Justice v. Stapleton [2008] 1 IR 669 at p. 692, Fennelly J. delivered a judgment with which the members of the Court agreed, and in which he stated:-

“[76] On the facts of this case, there is available to the respondent a procedure which will enable him, on surrender to the issuing member state to seek a remedy based on the very long period of time which has elapsed since the alleged commission of the offences. Moreover, on the facts of the case, it is demonstrably more efficient and more convenient that those matters be debated before the courts of the country where the respondent is to be tried. The prosecuting and police authorities as well as other witnesses are available to and amenable to the jurisdiction of the courts of that country. Documentary evidence, of the type demanded by the respondent, will be more readily available there. If not, its absence may be more readily explained. There may, in addition, be arguments or points of domestic law, whether based on precedents or otherwise, which the respondent can advantageously argue or rely upon which may not be available to him in this jurisdiction and of which an Irish court might not necessarily be aware. I would echo and adapt the words of Simon Brown L.J. in

Woodcock v. Government of New Zealand

[2003] EWHC 2668 (Admin), [2004] 1 WLR 1979 and say that the English courts ‘will have an altogether clearer picture than we have of precisely what evidence is available and the issues likely to arise …’.”

43. The system of the European arrest warrant is based on a high level of mutual confidence and mutual respect amongst members of the European Union. This informs the approach to the implementation of s. 37 of the Act of 2003, as amended. The fact that the requesting state does not implement the same constitutional principles will not necessarily be a basis to refuse a request.

44. However, a person may not be excluded from raising an issue of fundamental rights before the court.

Conclusion
45. The issue of fundamental rights is not excluded for consideration by the courts on a request for consent for further prosecution of a person who has been surrendered. Thus, the issue may be raised and considered by a court. However, it may be in accordance with our jurisprudence, that such issue is determined by the Court to be a matter for litigation in the requesting state.

46. Consequently, I would allow the appeal on this preliminary issue and remit the matter to the High Court for consideration in accordance with law.

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