S1 Minister for Justice Equality and Law Reform v Olsson [2011] IESC 1 (13 January 2011)

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URL: http://www.bailii.org/ie/cases/IESC/2011/S1.html
Cite as: [2011] 1 IR 384, [2011] IESC 1, [2011] 2 ILRM 395

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Judgment Title: Minister for Justice Equality and Law Reform v Olsson

Neutral Citation: [2011] IESC 1

Supreme Court Record Number: 54//08

High Court Record Number:

Date of Delivery: 13/01/2011

Court: Supreme Court

Composition of Court: Murray C.J., Fennelly J., Macken J., O'Donnell J., MacMenamin J.

Judgment by: O'Donnell J.

Status of Judgment: Approved

Judgments by
Link to Judgment
O'Donnell J.
Appeal dismissed - affirm High Court Order
Murray C.J., Fennelly J., Macken J., MacMenamin J.

Outcome: Dismiss

S.C. No. 54 of 2008

Murray C.J.
Fennelly J.
Macken J.
O'Donnell J.
MacMenamin J.





Judgment delivered by O’Donnell J. on the 13th day of January, 2011

The appellant is a citizen of Sweden. His arrest was sought by that country pursuant to a European Arrest Warrant (“EAW”) issued on the 19th December, 2006 for the purposes of prosecution in respect of four offences of robbery and arson alleged to have occurred on the 20th and 21st of October, 2005. The warrant was endorsed for execution on the 19th December, 2006 and executed on the 5th July, 2007. The appellant raised a number of challenges to the warrant and also issued separate plenary proceedings seeking declarations that the provisions of legal assistance under the Attorney General’s Scheme (“the Scheme”) were in breach of Council Framework Decision 2002/584/J.H.A. of 13 June, 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. L 190/1 18.7.2002 (“the Framework Decision”), the European Convention on Human Rights and/or the Irish Constitution. All issues were heard together by the High Court in the European arrest warrant “EAW” proceedings. In MJELR v. Ollson [2008] IEHC 37, (Unreported, High Court, Peart J., 20th February, 2008) the High Court rejected the appellant’s contentions , and directed that he be surrendered to Sweden in accordance with the provisions of the European Arrest Warrant Act 2003 (“the Act of 2003” or “the Act”), as amended. Against that judgment and order the appellant has now appealed to this Court.

On the hearing of the appeal the appellant sought leave to introduce further evidence being:

      (1) a report of the United Nations High Commissioner on Human Rights dated the 16th July, 2008;

      (2) a translation of a Swedish newspaper said to have been published “in November/December 2008” purporting to contain comments by a Swedish prosecutor on the substance of the case, and the EAW proceedings; and

      (3) correspondence between the appellant’s Irish solicitors and the gardaí and, more pertinently, correspondence between the solicitors and members of the Swedish police force.

The Court, having heard submissions, refused to admit the United Nations report and the translation of the newspaper, considering that they did not amount to evidence which could have a material bearing on the outcome of the appeal. While considering that there was an issue as to the admissibility of the correspondence, the Court nevertheless permitted the material to be opened de bene esse. The appeal then proceeded on its merits.

Although the proceedings, including the plenary proceedings and the interlocutory proceedings in the High Court, had together generated voluminous documentation raising a significant range of issues, the appellant through his counsel, Mr. Derek Kenneally S.C., acknowledged that in essence the appeal could be reduced to two issues: first, the question of the legal assistance available to the appellant; and second, whether the Court should refuse to surrender the appellant on the grounds that it was alleged that a decision had not been made to charge him with, and try him for, the offence as stated in the warrant (Under the EAW procedure surrender of a requested person may be sought for the purposes of either conducting a criminal prosecution or the execution of a custodial sentence or detention order). This narrowing of the potential issues in the case was welcome, but it should also be said, was both realistic and proper.

Legal Aid
On a first and indeed subsequent reading of the papers in this matter, it might have appeared that the substantial part of the appellant’s case was the contention that the legal fees available under the Scheme were so inadequate and so different from what could be obtained on taxation of costs, that the Scheme amounted to a failure to secure to the requested person the legal assistance to which it was asserted he was entitled. However, Mr. Kenneally S.C. disavowed any intention to advance such a case, or to make any argument which was in any way dependent on the level of remuneration available under the Scheme. Again, it should be said that this approach was both proper and prudent: any claim dependent on an assertion that another level of fees might have been attainable by taxation of costs would have been almost certainly doomed to failure and in any event, would also have had the appearance of an uncomfortable element of special pleading. Indeed, and in fairness to the lawyers appearing on behalf of the appellant, it should be said that they had expressly refused to seek certification under the Scheme, considering that it would be somehow inappropriate to criticise the adequacy of the Scheme, while at the same time seeking to benefit from it. Accordingly the point argued in this appeal is limited to the contention that the provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is requested pursuant to a European arrest warrant.

The appellant’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended. The proper approach to the interpretation of these provisions was clearly set out in the judgment of the Supreme Court delivered by Murray C.J. in Minister for Justice Equality and Law Reform v. Altaravicius [2006] 3 IR 148, at p. 155:-

      “Although the framework decision cannot, in terms of community law, have direct effect (Article 34.2(b) of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a significant number of its provisions, such effect and made it directly applicable within the State. This is achieved, inter alia, by s.10 of the Act of 2003 which provides that where a European arrest warrant has been duly issued in respect of a person “that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state”. The Act of 2003 does not confine itself to including the framework decision in a schedule for reference purposes. There are other provisions of the Act of 2003 which require the Courts to interpret and apply the framework decision directly but it is sufficient for present purposes to note that s.10 means that in deciding on an application for surrender pursuant to the terms of the Act of 2003 the court must apply both the provisions of the Act and the framework decision. …”
Article 11.2 of the Framework Decision provides that a requested person has a “right to be assisted by a legal counsel … in accordance with the national law of the executing Member State”.

The Framework Decision therefore imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise. It merely provides for a right of representation; and then only in accordance with the national law of the executing member state. That right, and more, has unequivocally been vindicated in the present case. The appellant argues, however, that the Act of 2003 imposes a more extensive obligation. The appellant points to s.13(4) of the Act of 2003 which provides inter alia:-

      “A person arrested under a European arrest warrant shall, upon his or her arrest, be informed of his or her right to –

        (b) obtain, or be provided with, professional legal advice and representation, and

        (c) where appropriate, obtain, or be provided with, the services of an interpreter.”

In essence, therefore, the appellant contends that s.13(4) recognises a right to be provided with professional legal advice and representation.

Section 13(4) is limited in its own terms. Insomuch as the subsection imposes any obligation, it is as to the provision of information on arrest. The information required to be provided assumes the existence of a right to be provided with a lawyer and, if appropriate, an interpreter. No other provision of the Act however confers, or even refers to, a right to be provided with either a lawyer or an interpreter, and as was made clear in Minister for Justice, Equality and Law Reform v. Altravicius, the Framework Decision cannot be the source of any such right. There was, therefore, much debate in the parties’ written submissions as to the source of any such right, and whether it was statutory or constitutional in origin or derived in some way from the European Convention on Human Rights. It is, however, not necessary to resolve that matter for the purposes of this appeal. The respondent on this appeal did not seek to argue that the reference in s.13(4) was an error, and/or that there was no right to be provided with legal assistance. In those circumstances, this appeal has proceeded upon the same assumption as that made by s.13(4), namely, that there is a right to have legal assistance provided in appropriate cases. That being so, the precise derivation of any such right is not relevant to the resolution of the issue in this case: the only question is whether what was unambiguously made available and offered to the appellant (that is legal assistance under the Scheme) was the provision of legal assistance as of right, there being no suggestion that s.13(4) was not otherwise complied with, in that the appellant was, it appears, informed of the ability to obtain legal assistance under the Scheme.

The appellant’s point in this respect is narrow, but not necessarily any less effective for that. The Scheme is derived from the assurances given to the Supreme Court in open court, on behalf of the Attorney General, in the case of in Application of Woods [1970] I.R. 154. Since that time the Scheme has always operated by the making of a recommendation by the court which the Attorney General almost always follows, although he or she is not obliged to do so. The appellant relies in this regard on the most recent iteration of the Scheme dated the 1st of May, 2000. Clause 8 of that document provides:-

      “The Scheme is an administrative, non-statutory arrangement whereby payments are made out of the Vote of the Office of the Chief State Solicitor in respect of certain legal costs in the types of litigation referred to in paragraph 1 of the Scheme in which, for the most part, the State is a party (although the State need not be a party to proceedings which are eligible for the Attorney General’s Scheme). The Attorney General is not bound by the recommendation of the Court.”
The appellant contends quite simply that the Scheme here provides that the Attorney General retains a discretion and that therefore, the Scheme cannot amount to the provision of legal aid as a right: instead it is provided ex gratia and as a matter of benevolence. Put less dramatically, it is suggested that the appellant cannot enforce by action any claim to legal aid under the Scheme, and accordingly it cannot be said to be provided as of right.

It must be apparent that there are a number of significant difficulties with this argument. First, it is an assertion of theoretical form over actual substance. In this case the appellant was repeatedly invited to apply for the Scheme and assured that it would be made available to him. Second, the appellant has at all stages of his involvement with the Irish courts system been represented by experienced and able lawyers. The rules of conduct of the legal profession in Ireland, and indeed the law of tort, do not distinguish between the standards required of lawyers paid on a commercial basis, under a legal aid scheme, on a “no foal no fee” basis, or where they are providing services pro bono. The source of payment is not relevant to the nature of the representation afforded to the individual. The fact is that the appellant here received exactly the substance of what the assumed right requires: legal representation encompassing in this case, representation by senior counsel, junior counsel and a solicitor ; and if necessary, it would be paid for by the State. At the hearing therefore, there was some debate as to whether in such circumstances the appellant had locus standi to raise any challenge to the Scheme. If the issue was compliance with the Framework Decision, then I would think the appellant does lack locus standi and indeed merit, since he had manifestly obtained representation in accordance with national law. Insomuch however as he contends that he has not received such representation as of right, he does have locus standi to make that challenge. Even then, it is difficult to see how the appellant, or anyone else in this position, is in any way affected as a matter of reality by the outcome of this case. Indeed even in the hypothetical case where the court refused to make a recommendation at the close of a case, or the Attorney General subsequently refused to follow the recommendation (and because of the stance taken by the appellant’s lawyers that point could never arise in this case in fact), the requested person would still have received representation. The parties with a grievance in any such situation would be the legal representatives and not the client. The issue for the appellant is almost an academic one ; and I would have had no hesitation in holding that the Court would be entitled to refuse to grant any declaratory relief in the plenary proceedings in the exercise of its discretion on the grounds that the declaration, if granted, would be of no substantial benefit to the appellant.

Insomuch as the appellant advanced this point in answer to the EAW proceedings, however, then it might be said that the rules relating to declaratory relief did not apply, and that he was entitled to argue that there was non-compliance with the Act, since compliance with the Act (and the Framework Decision) is a precondition to return pursuant to section 10. But this argument faces two further difficulties. First, there has been full compliance with the Act. As already observed, section 13(4) only requires the provision of information in relation to the requested person’s entitlement to have legal assistance provided for him, and this was done. Second, there is a subtle but significant shift in the manner in which the appellant makes his case. Section 13(4) does not refer to the provision of legal aid “as of right”: rather it provides for information being provided to a requested person as to his right to have legal representation and if necessary have it provided for him. It can be said that there is virtually no right which is unqualified: the Act of 2003 does not require that there be an unqualified right to legal aid ; and all that is required is that the requested person be informed of the nature and extent of the right accorded to him. To take one example, it is now accepted that the criminal legal aid scheme itself is not the mere provision of a statutory entitlement but the provision of a constitutional right. In Carmody v Minister for Justice Equality and Law Reform [2009] IESC 71 (Unreported, Supreme Court, 23rd October, 2009) Murray C.J. observed, at p. 19:- “One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely vindicating that right.” But that scheme is subject to criteria; most notably in relation to the means of the appellant, and the gravity of the offence with which the person is charged. It could not be suggested, however, that the fact that legal aid is subject to such delimitations means that, where it is actually provided it is not provided as of right . Nor, can it be said that if informed of the limitation on the scheme, a person has not been informed of his or her right to be provided with legal representation, even if such person does not come within the provisions of that scheme. Again taking the example of the Criminal Legal Aid Scheme; the right to be represented, and if unable to pay for representation to have such representation provided, is really an aspect of the right to a trial in due course of law guaranteed by Article 38.1, and the administration of justice required under Article 34.1. A trial on a serious charge without such legal assistance would fall short of those constitutional standards. See State (Healy) v Donoghue [1976] IR 325. The Constitution focuses on the fairness of the trial, not on the precise manner in which any representation is made available. At the same time there are aspects of the Attorney General’s Scheme, which can be said to be rights in the sense of a claim which is legally enforceable. Thus I take it that an applicant has an entitlement to apply for the benefit of the Scheme, and has a further entitlement to have such application considered by the Court and the Attorney General. The practical effect of s. 13(4) in this case is that once the applicant was informed of the circumstances in which he was entitled to benefit from the Attorney General’s Scheme and the limitations on that Scheme, then I consider that he had been informed of his right to have legal assistance provided for him . There was compliance with the section . However, it is not necessary to resolve that issue definitively, because the matter is in my view, put beyond doubt by the evidence and submissions made in this case.

In these proceedings an affidavit was sworn by Mr. Jevon Alcock, a solicitor in the Chief State Solicitor’s Office instructed in this case on behalf of the Attorney General. At paragraph 10 of that affidavit he states:-

      I say and believe and I am so informed that while the Attorney General’s Scheme is described as an ex gratia scheme and reference is made to a residual discretion, in all European Arrest Warrant cases, which are a special case by reason of the Act of 2003, that discretion is exercised in only one way. The person who is the subject of the European Arrest Warrant and who obtains the benefit of a court recommendation for payment pursuant to the Attorney General’s Scheme is consequently not dependent upon the goodwill or cooperation of the Attorney General for the payment of fees as suggested ….” [Emphasis added]
It is noteworthy that this statement was repeated both in the written and oral submissions made to this Court. It was not challenged.

In my view, this sworn statement, together with the assurances repeated to this Court, when taken with the provisions of the Scheme itself, amply satisfy any requirement implicit in section 13(4). Since in EAW cases, there is no residual discretion on the part of the Attorney General, the provision of legal services in such cases cannot properly be described as merely a matter of benevolence or discretion. On the contrary, where such services are provided pursuant to the Scheme as so expressed, then such services are in my view properly described as being provided as of right. Accordingly, I would reject this aspect of the appeal.

The second point raised by the appellant is also of general importance. The evidence in this case makes it clear that the appellant will not be prosecuted with the offences set out in the European arrest warrant until the Swedish prosecutors have interviewed him. Furthermore, it is common case that the result of that interview may be that the appellant will not be prosecuted at all. In such circumstances the appellant contends that he should not be surrendered pursuant to the warrant relying in this regard on the provisions of s.21(A) of the Act, as amended. That section provides:-

      “21(A) – (1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him for, that offence in the issuing state.

      (2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.”

There has been an exchange of evidence in relation to this matter. Mr. Hans Ostberg, a Swedish lawyer instructed on behalf of the appellant, has sworn an affidavit. There he states that he has contacted the prosecutor, Anne-Christine Maderud. At paragraphs 6 and 7 of his affidavit he states as follows:-
      “6 Arising from that communication I have ascertained that the status of the applicant in Sweden is häktad i sin frånvara which means that the District Court of Gavle has decided the [appellant] is on probable cause suspected of committing serious crimes and the court has decided that the [appellant] should be taken into custody.

      7 From the inquiries that I have made I am satisfied and I believe that the [appellant] is not being sought in the Kingdom of Sweden for the purpose of standing trial. I say that the required decision in that regard has not been made and that the surrender of the [appellant] is sought only for the purposes of continuing criminal investigation and not for the purpose of the [appellant] being charged with or standing trial in respect of any offence but more particularly the offences specified in the EAW.”

It is no criticism of the drafting or swearing of this affidavit to observe that the critical conclusion that the appellant is not being sought “for the purpose of … being charged with” is a conclusion in relation to concepts which are contained in s.21A, and therefore matters of Irish law. Furthermore, this aspect of the affidavit seems to consider the processes of investigation and prosecution as mutually exclusive .

Ms. Maderud has sworn a replying affidavit. Paragraphs 5 and 6 are of particular importance:-

      “5 The next step in the procedure requires the presence of the accused. Under Swedish law the investigation process may be formally concluded when the accused is present. The accused must be presented with the information obtained in the investigation and given the opportunity to reply to same. However no formal charges can be laid until the conclusion of the investigation as the prosecutor is legally incapable of arriving at a final decision to prosecute until they meet the accused and hear his objections and perhaps obtain additional evidence. This is an essential part of the process and is designed to protect an accused person’s rights. While there is an intention to prosecute on the basis of the available evidence the requested person has at all material times been abroad and has not been available to be interviewed and the procedure cannot be finalised in his absence. The [appellant’s] surrender is therefore sought for the purposes of conducting a criminal prosecution in respect of the above serious offences, although by Swedish law any final decision to prosecute can only be taken if the above procedure is followed and the [appellant’s] right protected. I understand that the system which operates in Sweden is analogous to that which operates in many other countries, for example, Finland, Denmark, Germany, the Netherlands, Spain, Estonia and Austria. Furthermore, Swedish law does not permit trial in absentia.

      6 …I am at a loss to understand how the [appellant] could reasonably be of the belief that he is not wanted for the purpose of a criminal prosecution. ….Under Swedish law and pursuant to the Framework [Decision] of the 13th June 2002, the Kingdom of Sweden only issues European Arrest Warrants for the purposes of either conducting a criminal prosecution or executing a custodial sentence or detention order. This European Arrest Warrant is issued for the former purpose.”

The appellant also relies on the correspondence between members of the Swedish police force and the appellant’s Irish solicitor, already referred to at the outset of this judgment. As already discussed, there must be considerable doubt as to the admissibility in these proceedings of such statements. In truth, the frank correspondence between the Swedish police and the appellant’s Irish lawyers only illustrates an aspect of this case that is central to the appeal, namely that the Act, and the procedure under it, necessarily relates to a sometimes difficult intersection between different legal systems and cultures. The issue is ultimately however a matter of Irish law, in the light of a situation where the basic facts (as opposed to legal conclusions to be drawn from them) are not in controversy between the parties.

The issue here, however, is not merely one of the evidence before the Court. As is apparent, s.21A(2) contains a presumption that a decision has been made to charge the person and try him or her for the offence. Furthermore, the opening lines of the EAW itself, request that the person mentioned below “be arrested and surrendered for the purposes of conducting a criminal prosecution …” That statement, and the further statements made in Ms. Maderud’s affidavit in relation to the practice of the Kingdom of Sweden, must also be read in the light of recital 10 of the Framework Decision which describes “[t]he mechanism of the European arrest warrant [as being] based on a high level of confidence between Member States”. It is clear, therefore, that cogent evidence is required to raise a genuine issue as to the purpose for which a warrant has been issued and surrender sought. This was emphasised in the judgment of Murray C.J. in Minister for Justice v. McArdle [2005] 4 IR 260, 268:-

      “The European Arrest Warrant Act 2003 gives effect in this jurisdiction to the European Council Framework Decision of the 13th June, 2002, on the European arrest warrant and the surrender procedures between member states. The recitals to that decision make reference to the implementation of “the principle of mutual recognition of criminal proceedings” and in particular recital number 6 which states “the European arrest warrant provided for in this Framework Decision if the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council refer to as the ‘cornerstone’ of judicial cooperation”. Accordingly, it seems to me that where a judicial authority of a Member State issues a European Arrest Warrant and that is accompanied by a certificate referred to in s.11(3) of the Act of 2003, both of which state and certify respectively, that the surrender of the person named in the warrant is sought for the purpose of prosecution and trial, that must be acknowledged as at least prima facie evidence of the purpose for which the request is made. It would, in my view, normally require cogent evidence to the contrary to raise a genuine issue as to the purpose for which the warrant in question has been issued and the surrender sought.”
The Chief Justice also observed, at pp. 266 to267:-
      “The surrender of a person for purpose of prosecution and trying him or her on a criminal offence means that the decision taken by the relevant authority to prosecute and try that person is not contingent on the outcome of further factual investigation. That requirement does not of course preclude the pursuit of any continuing or parallel investigation into the circumstance of the offence. It means that the decision to prosecute is not dependent on such further investigation producing sufficient evidence to justify putting a person on trial.”
In approaching the question of the interpretation of the Act, it is necessary to keep both the nature of the Act and its origins in view. One thing which can be said with assurance is that the Act does not intend that words such as “charge” and “prosecution” should only be understood as meaning a charge or prosecution as in the Irish criminal justice system. The Act establishes a procedure for the reciprocal execution of warrants with legal systems, almost all of which differ in some ways ,even at times significantly, from that of this jurisdiction. If the Act intended that only warrants emanating from a criminal justice procedure which was identical to that of Ireland would be executed here, then the Act would manifestly fail to achieve its object, and indeed that of the Framework Decision. A similar point was made in a slightly different context by Lord Steyn in the United Kingdom House of Lords case of Re Ismail [1999] 1 A.C. 320 at pp. 326 to 327:-
      “Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition [of the word “accused]… It is, however, possible to state in outline the approach to be adopted. The starting point is that “accused” in s.1 of the Act of 1989 is not a term of art. It is a question of fact in each case that the person passes the threshold test of being an “accused” person. Next there is the reality that one is concerned with the contextual meaning of “accused” and statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg v. Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of “accused” in an extradition treaty: Reg v Government of Switzerland [1999] AC 54, 62G. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of the information or the preferring of an indictment …

      It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an “accused” person. All one can say with confidence is that a purposive interpretation of “accused” ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an “accused” person is satisfied.”

The origins of the Act of 2003 are also important. The Act is the mechanism by which this State performs its obligation to ensure that the objectives of the Framework Decision, are achieved. As was pointed out by Fennelly J. in Dundon v. Governor of Cloverhill Prison [2006] 1 I.R. 518 at 544:-
      “[t]he Act of 2003 as a whole … should be interpreted “as far as possible in the light of the wording of the Framework Decision in order to attain the result which it pursues”.”
Taking this approach to the interpretation of s.21(A), the relevant provision of the Framework Decision is that contained in the opening words of article 1(1). This provides that a European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender to another member state of:-
      “The… requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” [Emphasis added]
It is also noteworthy that s.10 of the European Arrest Warrant Act 2003 (as substituted by s.71 of the Criminal Justice (Terrorist Offences) Act 2005 (“the Act of 2005”) and as amended by s. 6 of the Criminal Justice (Miscellaneous Provisions) Act 2009), provides that where a judicial authority in an issuing state issues a European Arrest Warrant in respect of a person “against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates … that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state”. (Emphasis added)

Thus, the concept of the “decision” in s.21A should be understood in the light of the “intention” referred to in s.10 of the Act and the “purpose” referred to in article 1 of the Framework Decision.

When s.21A speaks of “a decision” it does not describe such decision as final or irrevocable, nor can it be so interpreted in the light of the Framework Decision. The fact that a further decision might be made eventually not to proceed, would not therefore mean that the statute had not been complied with, once the relevant intention to do so existed at the time the warrant was issued. The Act does not require any particular formality as to the decision; in fact, s.21 focuses on ( and requires proof of ) the absence of one. The issuing state does not have to demonstrate a decision. A court is only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that person. This would be so where there is no intention to try the requested person on the charges at the time the warrant is issued. In such circumstances, the warrant could not be for the purposes of conducting a criminal prosecution.

The requirement of the relevant decision, intention or purpose can best be understood by identifying what is intended to be insufficient for the issuance and execution of a European arrest warrant. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s.10 of the Act of 2003) Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of section 21A. As the Chief Justice pointed out in Minister for Justice v. McArdle, that result is not altered by the fact that there may be a continuing investigation, or indeed that such investigation will be assisted by the return of the requested person.

It would be entirely within the Framework Decision and the Act if, after further investigation, the prosecution authorities decided not to prosecute because, for example, they had become convinced of the requested person’s innocence. There would still have been an “intention” to prosecute, and a decision to do so at the time the warrant was issued and executed. Accordingly the warrant would have been issued for the purposes of conducting a criminal prosecution. What is impermissible is that a decision to prosecute should be dependent on such further investigation producing sufficient evidence to put a person on trial. In such a situation there is in truth no present “decision” to prosecute, and no present “intention” to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. In such a case any warrant could not be said to be for the purposes of conducting a criminal prosecution: instead it could only properly be described as a warrant for the purposes of conducting a criminal investigation. In such circumstances, a court would be satisfied under s.21A that no decision had been made to charge or try the requested person.

It is noteworthy, that on the evidence in this case, the position in relation to the appellant is not by any means unusual in the Swedish system, and indeed represents the norm in a number of European countries. It would be a surprising result if either the Framework Decision or the Act of 2003 were to be interpreted so as to prevent the execution of the European arrest warrant in respect of such countries and where (as here) the requesting authority had in the terms of the warrant, and in sworn evidence in the case, stated that the warrant was issued for the purposes of conducting a criminal prosecution. The High Court was entirely correct to conclude that there was here a clear, intention to bring proceedings within the meaning of s10, and that the warrant could be said to be for the purposes of conducting a criminal prosecution within the meaning of the Framework Decision and that the only thing which stood in the way of commencement of such prosecution was the requirement of presence of the accused and the interview where he could respond to the investigation. In short the intention of the Swedish prosecution authority to bring the appellant before the Swedish Court for the purpose of being charged is but a step in the prosecution process. For the reasons set out above the High Court was correct to conclude that the respondent was not being sought only to be questioned as part of the investigation and that there was a decision to charge the appellant within the meaning of the Act. Certainly even without the presumption contained in s.21A(2), the section requires clear proof. Once a Court finds the European arrest warrant to be in order (and therefore on its face a request made for the purpose of prosecution or trial), then before a Court can refuse to surrender a person requested under such a warrant, it must be satisfied by cogent evidence to the contrary that a decision has not been made to charge the particular person with, and try him or her for, the offence. This has not been established. I would dismiss the appeal.

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