S24 Minister for Justice & Equality v Ostrowski [2013] IESC 24 (15 May 2013)

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Cite as: [2013] IESC 24

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Judgment Title: Minister for Justice & Equality v Ostrowski

Neutral Citation: [2013] IESC 24

Supreme Court Record Number: 97/2012

High Court Record Number: 2010 161 EXT

Date of Delivery: 15/05/2013

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., O'Donnell J., McKechnie J., MacMenamin J.

Judgment by: McKechnie J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Denham C.J.
Appeal allowed - set aside High Court Order
Murray J., O'Donnell J., McKechnie J., MacMenamin J.
McKechnie J.
MacMenamin J.

Outcome: Allow And Set Aside

Appeal No. 097/2012

Denham C.J.
Murray J.
O’Donnell J.
McKechnie J.
MacMenamin J.
[High Court Record No. 2010 161 EXT.]
In the Matter of the European Arrest Warrant Act 2003 as Amended
Minister for Justice and Equality

Jaroslaw Ostrowski


Judgment delivered on the 15th day of May, 2013, by Denham C.J.

Certified Question
1. On the 29th February, 2012, the High Court certified the following question for the consideration of this Court:-

      “Is the issue of proportionality a matter solely for consideration by the issuing judicial authority when deciding whether to issue a European Arrest Warrant [hereinafter “EAW”], or is the High Court in Ireland entitled to consider proportionality at a point in time when it is considering whether to surrender a respondent on foot of an [EAW]?”
2. The Minister for Justice and Equality, the applicant/appellant is referred to as “the appellant”, and Jaroslaw Ostrowski, the respondent/respondent, is referred to as “the respondent”.

3. The chronology of events is as follows:-

• In 2004 the respondent, his parents, brother and sister moved to Ireland. The respondent has lived here since then.

• On the 11th May, 2006, the alleged date of the offence, the respondent was visiting Poland on holidays. He lived at 9 St. John’s Court, Brennan’s Row, Limerick at that time.

• On the 27th November, 2006, the domestic order which underlies the EAW was issued by the District Court in Jelenia Góra.

• On the 7th January, 2009, the first EAW was issued by the District Court in Jelenia Góra.

• On the 22nd April, 2009, the first EAW was endorsed by the High Court.

• On the 19th October, 2009, the respondent was arrested and detained overnight in Henry Street, Garda Station on foot of the said EAW.

• On the 20th October, 2009, the respondent was brought before the High Court and admitted to bail.

• On the 26th January, 2010, additional information was received from the District Court in Jelenia Góra, which confirmed errors in the first EAW, and that they were corrected by a ruling on the 29th January, 2010.

• On the 19th March, 2010, the High Court (Peart J.) delivered judgment and refused to surrender the respondent.

• On the 15th April, 2010 the second EAW was issued by the District Court in Jelenia Góra.

• On the 27th April, 2010, additional information was received from the District Court in Jelenia Góra containing a photograph and fingerprints of the respondent.

• On the 28th April, 2010, the second EAW was endorsed by the High Court.

• On the 4th July, 2011, the respondent was arrested on foot of the second EAW by arrangement at the Criminal Courts of Justice, Dublin.

• On the 8th December, 2011, the s. 16 hearing on the second EAW was heard and judgment was reserved.

• On the 8th February, 2012, the High Court (Edwards J.) delivered judgment, refusing to surrender the respondent.

• On the 14th February, 2012, the appellant indicated a wish to appeal.

• On the 29th February, 2012, the point of law was certified by the High Court.

• On the 11th October, 2012, the Supreme Court heard the appeal.

The High Court Judgment
4. The learned High Court judge held:-

      “The Court has carefully considered all of the circumstances of the case urged upon it by counsel for the respondent. Having done so, I have concluded that exceptionally, and in the particular circumstances of this case, it would not be a proportionate measure to surrender Mr. Ostrowski to Poland on foot of the second European arrest warrant in this case. In arriving at this conclusion the Court has been influenced by the following considerations.”
5. The High Court then referred to several matters, including the following: the High Court considered it inherently unlikely that the respondent would receive a custodial sentence if returned; the respondent would suffer further deprivation of his liberty if surrendered, if only while waiting on remand to be brought before a court in Poland; the respondent’s prospects of getting bail were reduced; the Polish authorities could have written to the respondent and informed him that the matter was not going to be dropped, and he could have been invited to return voluntarily. The High Court stated that it was inappropriate and not helpful to speculate on steps that might have been open to the Polish authorities, but that the respondent was not told of the second EAW, nor given the option of returning voluntarily before the second EAW was issued. The High Court referred to the delay between the endorsement by the High Court in April 2010, and the respondent’s arrest in July, 2011, which led to a false sense of security, and then increased stress and anxiety for the respondent. The High Court also took account of the burden to the respondent and his family of having, in the event of his surrender, to be repatriated to Poland in custody. The High Court held that to surrender the respondent would disrupt in a significant way his family life, and while interference in family life is only to be expected when a person faces a deprivation of liberty, it is usually a proportionate measure and not a breach of a respondent’s right to respect for his family life, but the learned High Court judge held:-
      “However, this case has unusual features, and is arguably in a different category, in as much as the Court accepts that [the respondent] is unlikely to receive a custodial sentence if returned to Poland, and also that he is not a fugitive in the usual sense of that term.”
The High Court referred to the burden of expense of his family accompanying him to Poland, and of the further expense on this State and in the issuing state. The High Court took into account also the prosecution interests of the issuing state.

6. The High Court concluded:-

      “Nevertheless, having weighed all of the relevant circumstances in the balance, and having afforded each circumstance its appropriate weight, I have not been satisfied overall that it would be a proportionate measure to order the surrender of the respondent on foot of the European arrest warrant presently before me. I have concluded rather that in the particular circumstances of the respondent’s case it would represent a disproportionate interference with his fundamental rights, and particularly his right to liberty, his right to enjoy physical and mental health, and his right to respect for family life, to surrender him at this time.


      The Court upholds the specific objection based upon proportionality, and will refuse to make an order for the respondent’s surrender under s. 16 of the 2003 Act.”

7. The High Court then heard the application for a certificate to appeal to this Court on a point of law of exceptional public importance, and granted the application; the certificate granted being in the terms set out in the first paragraph of this judgment.


Framework Decision
8. On the 13th June, 2002, the Council of the European Union adopted a Framework Decision on the European arrest warrant and surrender procedures between Member States, referred to as “the Framework Decision”.

9. The EAW was defined in Article 1 as being a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

10. The obligation to execute was stated in Article 1.2 as follows:-

      “Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision”.
Thus, this scheme envisages mandatory execution of the EAW, in accordance with the Framework Decision.

11. Article 3 sets out grounds for mandatory non-execution of an EAW. Such grounds do not arise in this case.

12. Article 4 relates to grounds for optional non-execution of the EAW, which do not arise in this case either.

13. The European Arrest Warrant Act, 2003 is an act to give effect to the Framework Decision. It was amended by the Criminal Justice (Terrorist Offences) Act 2005 and the Criminal Justice (Miscellaneous Provisions) Act 2009 at the time of the High Court hearing in this case. The European Arrest Warrant Act, 2003, as amended by those Acts is referred to as “the Act of 2003”. A further amendment under the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 became law on the 24th July, 2012. Section 10 of the Act of 2003 provides:-

      “Where a judicial authority in an issuing state issues a European arrest warrant in respect of a person—

      (a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates,

      (b) who is the subject of proceedings in that state for an offence to which the European arrest warrant relates,

      (c) who has been convicted of, but not yet sentenced in respect of, an offence in that State to which the European arrest warrant relates, or

      (d) on whom a sentence of imprisonment or detention has been imposed in that State in respect of an 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.]

14. The provisions of the statute set out the requirements for an EAW. In this case there is no issue arising on the form of the EAW or on the procedure adopted.

15. Under s. 16 of the Act of 2003, the circumstances under which the High Court may direct the surrender of a person on an EAW are stated, with certain provisos. Relevant to this case is s. 16(2)(d), which states that the High Court may make an order directing the person’s surrender provided that:-

      “The surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).”
16. Part 3 of the Act of 2003 sets out the prohibitions on surrender. Thus, s. 37 states:
        “(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)


The Convention referred to in s. 37 of the Act of 2003 is the European Convention for the Protection of Human Rights and Fundamental Freedoms.

17. Under the EAW the respondent is sought by way of a decision of the District Court in Jelenia Góra for trial on one offence. That offence is described as that on the 11th May, 2006, in Wroclaw, acting in violation of the law, he was in possession of psychotropic agents in the form of marijuana – 0.72 grams of the net weight being an offence under Art. 62 §1 of the Drugs Abuse Prevention Act issued on the 29th July, 2005. In indicating the length of sentence, it is stated that the upper limit of imprisonment for the offence is three years.

The Decision
18. No issue arises in this case on the form of the EAW.

The Issue
19. The issue before the Court is that set out in the certified question, being whether proportionality is a matter solely for consideration by the issuing judicial authority when deciding whether to issue an EAW, or whether the High Court is entitled to consider proportionality when it is considering whether to surrender a respondent on foot of an EAW.

Issuing Judicial Authority
20. The certified question makes the assumption that an issuing judicial authority when deciding whether to issue an EAW considers proportionality. That is a matter for an issuing state and does not arise for consideration in this case. From experience I would not assume that in every member state an issuing judicial authority considers whether it is proportionate to issue an EAW. However, that is a matter for another forum.

21. The Framework Decision and the national Acts implementing that decision, in this case the Act of 2003, introduced a new form of surrender between member states. It was to be a simpler and faster form of extradition based on mutual trust and respect between judicial authorities of the member states.

Executive decided and Oireachtas legislated
22. The Framework Decision, a form of legislative measure, was adopted by the Council of the European Union, and all Member States have an obligation to implement the decision in national law so as to achieve the results specified by the Decision. The Oireachtas did this by means of the Act of 2003, as subsequently amended.

23. It is the responsibility of the Courts to implement and apply the Act of 2003. The Court is required to surrender a person sought to be surrendered under the Act of 2003 as long as the provisions of that Act are complied with, which includes the provisions in s. 37 that the surrender is not incompatible with the State’s obligations under the Convention or in contravention of the Constitution.

24. In this case the High Court clearly considered the offence trivial. It has arisen in other cases that an EAW process has been used by an issuing State to request the surrender of a person for a trivial offence.

25. However, once an offence is a corresponding offence, and the potential sentence meets the requirements of the Act of 2003, the question of whether or not the offence is trivial is not a matter for the High Court.

26. The Framework Decision and the Act of 2003 establish the permitted scope of an EAW. Article 2 of the Framework Decision sets out the punishable offences for which an EAW may be issued. This is reflected in the Act of 2003. This identifies the offences which may be surrendered in the new extradition system established by the member states.

27. The Framework Decision might, at least to some degree, be said to have addressed a proportionality question in this context in providing for what has been called the minimum gravity test with regard to offences which fall within the ambit of the Decision. This is reflected in s.38(1)(a)(i) of the Act of 2003, the effect of which is that a person may only be surrendered on foot of an EAW for the purposes of being prosecuted if the offence for which surrender is sought is subject to a maximum sentence of at least 12 months . All other offences which attract a maximum sentence of less than that amount may not be made the subject of a European Arrest Warrant.

28. The EAW in this case meets the requirements as to the scope of a warrant and the potential punishment provided for in the Act of 2003. No issue arose on these legal requirements.

29. The High Court has no role to look at possible sentences which might be awarded in an issuing State when a person is surrendered and to consider whether such a sentence is proportionate. It might also be observed that it would be virtually impossible in the vast majority of cases for the High Court or any national court to ascertain the likely sentence to be imposed by a court in the requesting state in all the circumstances of a particular case even if, in a minority of cases, that might be thought possible.

30. Once an EAW meets the minimum gravity test for an offence set out in the Framework Decision and the Act of 2003, it is not for the High Court to create and apply a proportionality test to a potential sentence.

31. The matter of member states issuing EAWs for trivial offences is a matter which may be addressed. However, it cannot be addressed by the courts exercising a proportionality test. It is an issue which should be addressed in another forum.

32. The EAW arises in a system of surrender which has been established between member states of the EU. It is a system which benefits the member states. As was said in Recital (5) and (6) to the Framework Decision:-

      “The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. 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.

      The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation.”

      [Emphasis added.]

33. Section 37 of the Act of 2003 provides that a person shall not be surrendered if his surrender would be incompatible with the Convention.

34. The respondent submitted that surrender would cause a disproportionate interference with his rights under s. 37 of the Act of 2003. Reference was made to rights of liberty, security and family.

35. His family circumstances are that the respondent, his parents and brother and sister, moved to Ireland in 2004. They made a collective decision to stay in Ireland. All of the respondent’s immediate family are now in the Limerick area. Ireland has become the respondent’s home and he wishes to stay here long term. He is close to his family, he has no family members left in Poland.

36. However, as Fennelly J. stated in Minister for Justice, Equality and Law Reform v. Gheorghe [2009] IESC 76 (Judgment of Fennelly J. of the 18th November, 2009) at pp. 48:-

      “It is a regrettable but inescapable incident of extradition in general and, as in this case, surrender pursuant to the system of the [EAW], that persons sought for prosecution in another state will very often suffer disruption of their personal and family life. Some states have historically refused to extradite their own nationals, but that is a special case. The Framework Decision expressly provides that, in Article 1, that it does 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.’ No authority has been produced to support the proposition that surrender is to be refused where a person will, as a consequence, suffered disruption, even severe disruption of family relationships.”
37. In almost all cases of surrender, family rights, Article 8 rights, are affected. However, it is only in an exceptional case that Article 8 rights would outweigh the requirement to surrender. This is not such an exceptional case. Thus, there is no foundation upon which to find for the respondent on this ground. Therefore, the general principle of proportionality does not arise in these circumstances.

38. Even if the principle of proportionality might arise in some circumstances, even if it could be a factor in a case, there is no basis in the principle of proportionality upon which to refuse to surrender the respondent in this case.

39. Thus, I would allow the appeal and order that the respondent may be surrendered on the EAW, for the reasons stated in answer to the certified question.
Judgment of Mr Justice William M. McKechnie delivered on the 15th day of May, 2013

1. This appeal raises a point of law on the workings of the surrender provisions of the European Arrest Warrant Act 2003, as amended, and of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedure between Member States (2002/584/JHA), which Decision, the Act was designed to give effect to. In this judgment the Act, together with the amendments introduced in 2005 and 2009, but not those introduced in 2012, which due to their date of enactment are not applicable, are referred to as the “2003 Act” or “the Act”, unless otherwise stated. The EU measure is simply referred as the “Framework Decision” or “the Decision” which for the purposes of this case, remains unaffected by the several amendments subsequently made.

2. The circumstances under which a party may appeal to this Court from a decision of the High Court made under subs.(1) or (2) of s.16 of the 2003 Act, are severely circumscribed in that, as a statutory precondition, the trial judge must be satisfied that the order or decision in question gives rise to a point of law of exceptional public importance and that it is desirable in the public interest to have it determined by the Supreme Court (s.16(11) of the Act). Evidently, it is a jurisdiction which by its terms will apply infrequently but when occasioned, the issues are likely to be significant. Accordingly, in framing the intended question, care must be taken to ensure that, as reasonably interpreted, the question accurately reflects the true concern of the trial judge, having regard to the context of the issue falling for his or her determination. Whilst this Court undoubtedly has the power to recast what is being asked and may do so if it is necessary to reflect any key point, nonetheless, this facility should not be regarded as a substitute for fully engaging with the issue in the first instance, particularly as the trial judge will have first hand experience of the underlying difficulty.

3. In this case, the question certified reads as follows:

      “Is the issue of proportionality a matter solely for consideration by the issuing judicial authority when deciding whether to issue an European Arrest Warrant hereinafter (“EAW”) or is the High Court in Ireland entitled to consider proportionality at a point in time when it is considering whether to surrender a respondent on foot of an EAW?”
4. It seems clear from the submissions that some controversy arose in the High Court about which issue(s) should be certified and by which form of wording. According to the respondent’s submission, the Minister for Justice and Equality (“the Minister” or “the Appellant”) described in open court what was certified as a “trick question”, and is now seeking to disregard it by addressing his appeal submission to a different formulation of words with a different meaning; which can be summarised as asking:
      (a) whether the High Court on a surrender application, “is obliged and/or entitled to consider whether a decision to surrender would be proportionate in all the circumstances of the case?” [emphasis added];

      (b) whether the 2003 Act and the Framework Decision entitle and/or oblige the High Court when conducting such an exercise, to consider the likely sentence which the affected person may receive on conviction for the offence in question; and

      (c) whether the High Court was correct, in fact and in law, in concluding that, having regard to the nature of the offence, the delay involved and his family circumstances, the respondent’s rights under Art.8 of the European Convention on Human Rights (“the Convention”) would be violated if his surrender was ordered.

5. Whilst entirely rejecting the Minister’s assertion, if such was so stated or even implied, nevertheless I am satisfied that to answer the question as literally drafted would fail to meet the rationale of its certification in the first place. Indeed, the correctness of the assumption inherent in the question, that “proportionality” in some form must be applied by the requesting judicial authority, a premise no doubt based on the views of the learned judge set out at p.23 of his judgment (para.23 infra), is anything but certain. In any event, as this judgment will show, it will be more informative to consider whether, by applying the relevant provisions of the 2003 Act and, insofar as permitted thereby, those articles (including recitals) of the Framework Decision which are material, and having due regard to general principles of law, the High Court, when exercising its s.16 jurisdiction, can or must, by reference to the principle of proportionality:

        (a) assess the Constitution or Convention rights of the affected person, being those asserted on his behalf, if so;

        (b) what matters are relevant to such assessment, in particular can regard be had to:

            (i) the importance of the offence;

            (ii) the likely sentence on conviction;

            (iii) the cost and burden on the requested State in the execution of the warrant, and more generally;

            (iv) those factors which existed at the issuing stage, and

      (2) consider the totality of circumstances existing at both the time of issue and of execution even where no such Constitution or Convention rights are involved.
6. In addition further issues may arise such as: what is the correct approach of the court on a surrender application where a test of proportionality is applicable, how should the public interest in the process be measured, how should individual rights be assessed, what additional factors to those mentioned are relevant and irrelevant, such as, in the instant context, the likelihood of bail being obtained pending trial and any avoidable delays in the process. Finally, the court is asked to say whether the ultimate decision of the High Court is correct in fact and in law.

7. As the individual facts of the case touch little on the issues of principle, I will defer a consideration of these until I have addressed such principles. At this point of the judgment, all that needs to be said is that the respondent, his parents, brother and sister moved to Ireland in 2004 from Poland where he and his family had been born and had previously lived. They have made their new home in this country and intend to reside here indefinitely/permanently. Having returned to Poland for a week’s holiday in May 2006, Mr Ostrowski was stopped by a member of the police and allegedly, was found to have in his possession 0.72 grams of marijuana. He was questioned but not detained. An EAW accusing him of self possession of this drug in that quantity was issued by a judicial authority on the 7th day of January, 2009. That warrant was found to be defective and his discharge was ordered by the High Court following a judgment to that effect on the 19th day of March, 2010. A second EAW relating to the same alleged offence was issued on the 15th day of April, 2010. On the s.16 hearing (paras.18 & 19 infra), the High Court, held inter alia that the respondent’s Art. 8 family rights, as enjoyed in this country, were engaged, and having balanced a number of factors – including the unlikelihood of a custodial sentence being imposed, the difficulties in obtaining bail in Poland and the cost and burden on the State of this foreign process – against the public interest in the respondent’s forced return, refused to make the order as sought. In essence, the learned judge, having considered “all of the circumstances”, applied a “proportionality test” or a “proportionality type test”. From that decision the Minister successfully persuaded the trial judge to invoke the provisions of s.16(11) of the Act and hence this judgment on the resulting question.

Framework Decision:
8. The purpose and objective of the Framework Decision, which can be readily extracted from a consideration of its recitals, in particular Recitals 5, 6, 7, 8, and 10, have been set out in several judgments of both the High Court and this Court, which I gratefully adopt (see In the matter of an inquiry pursuant to Article 40.4.2 of the Constitution of Ireland. S.M.R. v. The Governor of Wheatfield Prison [2010] 1 I.R. 141, paras.5 and 6, Dundon v. The Governor of Cloverhill Prison [2006] 1 I.R. 518, pp.521 to 523 (“Dundon”) and The Minister for Justice, Equality and Law Reform v. Altaravicius [2006] 3 IR 148, pp.153 and 154 (“Altaravicius”)). Therefore, whilst I do not propose to repeat these objectives, nonetheless a few observations are in point:

      (a) the existing formal extradition arrangements and procedures, whether bilateral, multilateral, or existing under Title III of the 1990 Convention implementing the Schengen Agreement of 14 June 1985 on extradition, or otherwise howsoever made, were to be abolished (Recital 11), and in their place was created a system of surrender between judicial authorities of Member States. This system had nothing whatsoever in common with its predecessor save as to result, namely an affected person is returned to the requested country to face prosecution or, following a verdict by plea or decision, to serve the whole or some balance of an imposed sentence. Otherwise, at every level of core importance there is a distinct and marked divergence, new from old.

      (b) the system of “free movement of judicial decisions”, issued by judicial authorities in this area, was one based on implementing the principle of mutual recognition which the European Council has described as the “cornerstone of judicial cooperation” (Recital 6). A high level of conference and respect was the reciprocal essence upon which this system was founded (Recital 10).

9. An excellent and concise overview of the change effected is to be found in the opinion of Advocate General Colomer in Advocaten voor de Wereld VZW v. Leden van de Ministerraad (Case C – 303/05) [2007] ECR I-3633 (“Advocaten voor de Wereld”). At paras.41-43 he said:
      “41. The move from extradition to the European arrest warrant constitutes a complete change of direction. It is clear that both concepts serve the same purpose of surrendering an individual who has been accused or convicted of an offence to the authorities of another State so that he may be prosecuted or serve his sentence there. However, that is where the similarities end.

      42. In the case of extradition, contact is initiated between two sovereign States, the requester and the requested, each of which acts from an independent position. One State asks for the cooperation of the other State which decides whether to provide that cooperation on a case-by-case basis, having regard to grounds which exceed the purely legal sphere and enter into the scope of international relations, where the principle of opportuneness plays an important role. Accordingly, the intervention of politicians and criteria such as reciprocity and double criminality are justified because they have their origins in different spheres.

      43. The nature of the situation changes when assistance is requested and provided in the context of a supranational, harmonised legal system where, by partially renouncing their sovereignty, States devolve power to independent authorities with law-making powers. That approximation, which falls within the scope of the first pillar of the Union, also operates in the third, intergovernmental, pillar — albeit with a clear Community objective, as was demonstrated in Pupino — by transferring to framework decisions certain aspects of the first pillar and a number of the parameters specific to directives.”

10. Article 1.1 of the Framework Decision describes an EAW as a “judicial decision” issued by a Member State. Article 1.2 is addressed to the executing State, which, by virtue of its provisions, “shall execute” the warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision. Under Art.6 both the issuing judicial authority (“IJA”) and the executing judicial authority (“EJA”) shall be the “judicial authority” designated as such by each Member State to discharge their respective functions. Whilst of no direct relevance to this appeal, the recent decision, by majority, of the United Kingdom Supreme Court on whether a public prosecutor being also an individual party to the prosecution in question could be said to be a “judicial authority” within the meaning of its implementing legislation is of note (Assange v. Swedish Prosecution Authority [2012] 2 WLR 1275, (“Assange”)).

11. Article 2.1, under the heading “Scope of the European arrest warrant” states that an EAW “may be issued” either where the alleged offence carries a minimum of 12 months imprisonment or where a sentence has been given or a detention order has been made, of at least four months duration. Under Art.2.2 the requirement to establish double criminality is stood down in respect of over thirty specified offences which carry a maximum sentence of at least three years. Articles 3 and 4 set out respectively the grounds for mandatory non-execution and optional non-execution. Article 8 outlines the content and form of an EAW which must include evidence of an enforceable judgment, an arrest warrant, or other enforceable judicial decision having the same effect, coming within Articles 1 and 2 and must set out the prescribed scale of penalties for the alleged offence(s) under the law of the issuing State (Art.8.1(c) and (f) respectively).

12. There are of course several other provisions contained within the Decision but such are not required to be set out or otherwise referred to in this judgment.

13. Before moving to the domestic legislation, it should be noted that both Recital (12) and Art.1.3 of the Decision expressly declare that as a measure, it respects (i) fundamental rights and (ii) observes the principles recorded in Art.6 of the Treaty on European Union (“TEU”) and reflected in the Charter of Fundamental Rights (“the Charter” or “CFR”). Under Art.6, post Lisbon, it is noted that the CFR has the same legal value as the treaties, that the EU shall “accede” to the Convention and that fundamental rights, resulting from the constitutional traditions common to Member States, shall constitute general principles of EU law.

The 2003 Act – A Brief Overview:
14. As explained more fully later in this judgment, the Framework Decision is binding upon Member States “as to the result to be achieved but shall leave to the national authorities the choice of form and methods. [It] shall not entail direct effect” (ex Art. 34(2) TEU provisionally carried over by article 9, Protocol No.36 on Transitional Provisions annexed to the Treaties). As is therefore evident, without having direct effect, Member States must pass measures to implement the Decision in their individual jurisdictions. That has been done in this State by the enactment of the 2003 Act.

15. The Act, at least with regard to certain of its provisions, according to Fennelly J. in Dundon “presents unusual features of interpretation” (p.545), whilst Murray C.J. in Altaravicus, when specifically referring to s.10 but also when clearly having in mind other provisions, described its interplay with the Decision as “… to say the least, an idiosyncratic method of legislating and likely to create ambiguity” (p.155). The Oireachtas has responded, at least to some extent, by the enactment of the 2012 Act, but such, for reasons previously given, has no application to this case. Therefore the difficulties, as identified, continue to exist.

16. Section 2 of the 2003 Act defines an EAW as “a warrant, order or decision of a judicial authority of a Member State”. A “judicial authority” is defined as a person, including a judge or magistrate, designated as such to perform similar functions to those carried out by a court in this State when issuing an EAW. An “issuing judicial authority” is a judicial authority in the issuing State and an “executing judicial authority” is, by virtue of s.9, the High Court.

17. Section 10 of the Act provides that where the High Court, as EJA, has satisfied itself of certain matters the requested person “…shall, subject to and in accordance with the provisions of this Act, be arrested and surrendered to the issuing State.” This is an important provision as is s.13 which governs the endorsement of the warrant for execution. Section 11, which deals with the form of the warrant, s.12 with its transmission, s.14 with the power in certain circumstances to arrest a person without such a warrant, and s.15 which deals with whether the arrested person consents to his surrender, are all highly important provisions in the overall scheme of the surrender system, but are not directly in point for this case.

18. Section 16 is however. Its relevant portions provide as follows:

      “16 – (1) Where a person does not consent to his or her surrender to the issuing State the High Court may, … make an order directing that the person be surrendered … provided that –

      (a) the High Court is satisfied that the person before it is the person in respect of whom the [EAW] was issued,

      (b) the [EAW], … has been endorsed in accordance with section 13 for execution of the warrant,

      (c) …

      (d) the High Court is not required, under section 21A, 22, 23, or 24 (inserted by 4 sections 79, 80, 81, and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and

      (e) the surrender of the person is not prohibited by Part 3.”

The remaining subsections of that section are not in issue save for noting subs.(11) as previously mentioned. Section 18 under which a person’s surrender can be deferred on humanitarian grounds is not in issue either.

19. It will immediately be evident that the statutory power given to the High Court as to what order it might make at the conclusion of a s.16 hearing, even if satisfied as to both the affirmative and negative conditions set out in the various sub-paragraphs, lacks any direction of an imperative nature. Words such as “shall”, “must”, or “will”, normally associated with some type of prescriptive requirement, are not used. Rather, the phrase is that the High Court “may” make the order for surrender “…provided that…”. Precisely what this means may at first appear unclear. However, when looked at in light of the wording of Art.1.2 (para.10 supra) and s.10 of the Act (para.16 supra), it is clear that such does not confer any residual or overriding power to refuse an order when otherwise, a surrender is indicated. As Denham J. stated in The Minister for Justice, Equality and Law Reform, v. Koncis [2011] IESC 37 (“Koncis”) at para.38, “The Courts are not given a general discretionary power to refuse surrender.” Therefore, one may proceed on the basis, as argued, that unless there is to be found within the Act, the Framework Decision, or general principles of Irish or EU law, a justifiable reason for refusing surrender, the same should be ordered once the relevant statutory terms and conditions of the Act have been complied with.

20. The respondent is unquestionably the subject matter of the EAW in question, albeit a second one, and it is accepted that such warrant has been transmitted and legally endorsed by the High Court in accordance with s.13 of the Act. No challenge is mounted purely on the basis of the warrant being re-issued, nor could it, in light of the Supreme Court’s decision in Koncis. In addition, it is not suggested that the prohibitory requirements of ss.21A, 22, 23, or 24 of the Act are in play. The point of engagement therefore, although not of contest in a strictly adversarial meaning, is centred on the provisions of Part 3 of the 2003 Act.

21. The issue which arises under Part 3 is confined to the provisions of s.37 of the Act; indeed, simply a part of that provision. Thereunder, a person like the respondent, who otherwise should be surrendered, will not be so 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 …”.

Consequently, if rights appropriate to the respondent as such, including the circumstances of his positioning, are engaged, being those found in the Constitution or the Convention, and if his surrender would contravene the relevant constitutional provision or be incompatible with the State’s obligations under the Convention (abbreviated to “Convention rights”), he must be released. Put simply, if that act of surrender would violate his fundamental or personal rights under either legal order, he must be discharged. The principle of proportionality is central to this assessment.


- The High Court Judgment:
22. The basis upon which the respondent was discharged from the EAW process rested on the views of the learned trial judge regarding proportionality, in particular his view of what that concept was, what it entailed, where and at what point or points in the process it should apply and finally, what conclusions should correctly follow from its application. This was the only matter of substance in the case for if the respondent could not prevent his surrender in this regard, the High Court would unquestionably have made the order as requested. As in that Court, this issue dominated the appeal and is therefore central to this judgment.

23. At the outset, the trial judge was satisfied that proportionality arose for consideration as a matter of obligation at two distinct points in the process which he pointed out should not be conflated. Firstly, when an EAW was being issued and secondly, when the High Court as the EJA was conducting a s.16 hearing. The basis for such requirement in his view rested at both the political and legal level. The EAW process was never intended to deal with “trivial or petty” offences: to do so would be to act contrary to the spirit of the Framework Decision. At the legal level, proportionality is a fundamental part of the whole “corpus of EU” law which, by reference to this particular measure, is expressly reflected in Recital 7 of the Decision (p. 23/24 of the judgment), which states that in accordance with the principle of proportionality, the Decision does not go beyond what is necessary in order to achieve its objective.

24. However, in respecting the twin pillars of mutual trust and cooperation between Member States on the one hand and of judicial cooperation and mutual recognition of judicial decisions on the other, it was necessary for the executing judicial authority to presume that when issuing an EAW, its requesting counterpart had in fact applied such a test. Accordingly, although the presumption was rebuttable, the same should not be put in issue as to do so would be contrary to the spirit of the Framework Decision. Having so stated however, it is also implicit in the judgment that any shortcomings in this regard could be reviewed, at least to some degree, as part of the High Court’s function at the execution stage, for at that point the court could consider as relevant: (i) those matters taken into account by the issuing authority and (ii) any matters arising since then, being those referable to the fundamental rights of the respondent.

25. Before identifying in greater detail the factors which the High Court had regard to, two matters of some importance should be noted. The first relates to the decision in General Public Prosecution Services v. C 1 Ausl. (24) 1246/2010 (OLG Stuttgart) (G.P.S. v. C) which was a ruling of the Higher Regional Court in Stuttgart, on issues arising out of an EAW where Germany was the executing authority. The learned judge noted that the court had regard to the individual’s “right to liberty and safety; the cost and effort of a formal extradition proceeding including extradition arrest; the significance of the charge; the severity of the possible penalty” [emphasis added] (see para.89 infra for source of case report). He expressed agreement with this approach save for one point where he substituted the following formulation for that as emphasised, namely “…the cost and burden to those concerned of effecting a surrender in the particular case” (p.26 of the judgment). The second matter to mention is that whilst the High Court rejected, as a refusal ground, any application of the de minimis rule or anything akin to it (a submission made by reference to the alleged “triviality” of the offence), and whilst agreeing that it should not speculate on sentence, nonetheless, went on to say, by reference to the individual circumstances of the particular offence, that “some weight” should be given to the “inherent unlikelihood” of the respondent receiving a custodial sentence. Therefore, it seems likely that both matters played, at least some part, in the court’s assessment.

26. In further specifying factors to which regard may be had, the judge referred to the interest of the issuing State on the public or community side, although surprisingly, no express reference is made to the interests or obligations of this State. He did however mention, in this context, the case of Norris v. Government of the United States of America (No. 2) [2010] A.C. 487 (“Norris”) and the decision in HH and Anor. v. Deputy Prosecutor of Italian Republic, Genoa and Ors. [2011] EWHC 1145 (“HH”), for the purposes of acknowledging, as he had done so in previous decisions, the views of Lord Phillips in Norris to the effect that the public interest in extradition weighs heavily (para.51) and those of Laws L.J. in HH that the “‘public interest in extradition is systematically served by the extradition’s being carried into effect, subject to the proper procedures.” (para.63).

27. From the respondent’s perspective the following were highlighted:

      (1) loss of liberty, aggravated by the probable difficulty in obtaining the equivalent of bail in Poland as Mr Ostrowski no longer has a residential address in that country;

      (2) separation from and disruption of family, who have established roots in this country, increased by the possible hardship on some one or more of them who may travel to Poland with him; and

      (3) the delay of 15 months in the execution of the second warrant, which has had the causative effect of lulling him into a false sense of security, of increasing his stress and anxiety, and of creating uncertainty about his future.

28. Alternative measures open to the Polish authorities, such as seeking the respondent’s voluntary surrender, or trying him in his absence, were also canvassed as possibly having influence on his side of the assessment. Whilst accepting that it would be inappropriate to speculate about such matters and that more fundamentally, it would be disrespectful to the Framework Decision to inquire if such in fact had been considered, nonetheless, the court felt that the absence of any forewarning prior to the issue of the second EAW and also the failure to seek his voluntary return, were material matters in its s.16 decision.

29. In concluding, the court, having considered “all of the circumstances”, and having noted that the case had “unusual features and is arguably in a different category” than others, found that “exceptionally”, but by reason of the presenting circumstances, surrender would not be a proportionate measure. It therefore declined to make the order which the Minister had requested.

- General Principles:
30. It is submitted on behalf of the Minister that this is the first case in which, by reference to the principle of proportionality, a surrender order has been refused on grounds which include those not heretofore associated with or related to either a Constitution or Convention right. It is further said that such has involved the application of a widespread and far-reaching form of proportionality which is not recognised within the legal principles underpinning this process. The respondent disagrees with this proposition and in support of the trial judge submits that, the approach adopted was fully in conformity with the provisions of the 2003 Act, the Framework Decision and with general principles of EU law. In addition he says that the same has now been endorsed by a court of a fellow Member State in G.P.S. v. C and should be followed.

31. Heaney v. Ireland [1994] 3 I.R. 593 (“Heaney”) decided in 1993 is recognised as being the first case which, in an established way, adopted the principle of proportionality into this jurisdiction, although Barron J. was clearly conscious of the relative balance between decision, effects and purpose, in Hand v. Dublin Corporation [1989] I.R. 26. A challenge to primary legislation, imposing a restriction on the exercise of a constitutionally protected right (to silence) was at issue. Since then, the past 20 years have seen the doctrine, without any essential change to its substance, applied to interferences by various means with rights having different dimensions in our legal system. Provisions of primary legislation affecting fundamental constitutional rights (Murphy v. I.R.T.C. [1999] 1 I.R. 12 and North West Health Board v. H.W. [2001] 3 IR 622), constitutional rights other than those that are so regarded, for example, property rights and Convention rights, have all been challenged in this way (Rock v. Ireland [1997] 3 I.R. 484 and In re The Matrimonial Home Bill, 1993 [1994] 1 I.R. 305). Measures of a secondary nature (Maher v. Minister for Agriculture [2001] 2 IR 139), as well as challenges to administrative decisions (after an “initial wobble”. See Hogan and Morgan, Administrative Law in Ireland, 4th edn, para.15.130.) by way of judicial review (Warnock v. Revenue Commissioners [1986] I.L.R.M. 37 and Gallagher v. The Director of the Central Mental Hospital and Ors (No. 2) [1996] 3 IR 10) and by way of an appeal (Balkin Tours Ltd v. Minister for Communications [1988] I.L.R.M. 101) have all readily attracted the concept. Administrative schemes have likewise been evaluated in the same way (Rafferty & Anor v. Minister for Agriculture and Food and Rural Development & Ors [2008] IEHC 344). In essence, its presence is now clearly discernable in a multitude of circumstances as described in the case law. It is therefore, at the level of principle, recognised as being fully embodied in Irish law and is an established rule of domestic jurisprudence.

32. It is worthy of note that a core objective which motivated its creation was the establishment of a criteria, whose structure and use is more rational and more objectively verifiable than the more subjective concept of reasonableness, by which a measured balance could be had and retained between the public benefit of a given decision and the harmful effects of that decision on the affected individual. Proportion is key in such regard.

33. The test in a sense is both permissive and restrictive. Action by a variety of bodies on behalf of the public is of course both an inherent and an indispensable feature of modern society. When such impacts on fundamental rights however, a principle value of democracy (freedom) is diminished. It is essentially as important to the citizen that such diminution is as minimal as possible, as it is to have the measure activated in the first instance. Means, at judicial level, are required to evaluate and to achieve this balance. One measure and one of increasing importance in this armoury is, as I have said, proportionality.

34. Although it is self-evident from the context under discussion, that the doctrine of which I speak is essentially one which operates in the public law domain, as a judicial tool to assess the lawfulness, of measures adopted by or decisions or actions taken on behalf of the legislative or executive branch which impact upon the exercise of rights otherwise enjoyed, nonetheless, the distinction between proportionality having that meaning and any other should be noted, such as where the term can be substituted with descriptive expressions such as “appropriate”, “suitable”, “befitting” or the like. See Lynch v. The Minister for Justice, Equality and Law Reform and Ors., (“Lynch”) and Whelan v. Minister for Justice, Equality and Law Reform and Ors. both reported at [2010] IESC 34. It may well be that it also has other meanings with even greater (or lesser) breadth than the last analysis implies. It now has several specific positions in EU law, one of which is Art.49(3) of the Charter (para.82 infra). Whilst some concern may be had regarding its possible inappropriate or excessive use or indeed its outright misapplication, whether by virtue of subject matter, circumstance or otherwise, nonetheless, it is quite a valuable assessment method and should be so treated. Furthermore, there is a powerful value in its name, identity and recognition which adds to its intrinsic impact, and therefore, even where readily interchangeable with other expressions, I would be quite slow in dropping its nomenclature. Whilst such may lack the impressive ancestry of the epithet “natural” in the phrase “natural justice”, nonetheless it has a particular signification, and thus its widespread use should be maintained. Provided its meaning is properly understood in a given context, any misunderstanding can be avoided.

35. Heaney described what the notion of proportionality intended, its essential features, and the purpose of its utility. At p.607 of the report, Costello J. gave the following description:

      “The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-

        (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

        (b) impair the right as little as possible, and

        (c) be such that their effects on rights are proportional to the objective: Chaulk v. R. [1990] 3 S.C.R. 1303 at pages 1335 and 1336.”

Although Heaney was appealed to the Supreme Court, the judgment of Costello J. remains the cited source whenever these principles are discussed.

36. Although there is always a danger in attempting to summarise a principle, which is better known and much understood by its complete text, nonetheless, without such, judgments would run infinitely. Therefore, may I say that the principle examines the objectives (and their legitimacy) of a given decision and the impact on the rights which it affects, and measures the correlation between both. If the result, having correctly valued the competing interests, lacks balance, the measure may be condemned. At a more formal level it can be said that this assessment review, involves the following four elements: legitimate objective, rational connection, minimal impairment, and overall balance (Brady, “Proportionality, Defence and Fundamental Rights in Irish Administrative Law: The Aftermath of Meadows” 2010 1 D.U.L.J 136-171). When correctly applied, the justification for the conclusion preferred, should be both evident and transparent.

37. Finally in this context, it should be noted that the court was not asked by either party to consider or engage with the recent important decision of Meadows v. Minister for Justice, Equality and Law Reform and Ors. [2010] 2 IR 701. Therefore further comment in this regard is not required.

Particularising the Complaint:
38. As above stated (paras.20 & 21), the assertion advanced on behalf of the respondent is that his surrender is prohibited by s.37 of the 2003 Act in that, such an order would be an unjust and disproportionate interference, with rights enjoyed or capable of being enjoyed by him, in this jurisdiction under the Constitution and the Convention. Whilst there is a reference to EU law, such has not been expanded upon. Without specifying any individual article of either the Constitution or the Convention, the right to liberty, the right to physical and mental health, and the right to respect for family life are mentioned. Apart from a general assertion of “increased stress” and some non specific “uncertainty” about his future, the respondent has wholly failed to particularise, or offer evidential support, regarding his health. In respect of his liberty, he is obviously correct in saying that such has, or will be, curtailed. In this jurisdiction he was arrested and detained for a period of hours before being conditionally released which of course must still be recognised as constituting a deprivation of liberty, despite the un-restricted nature of the terms imposed. In addition, if a surrender order is made he may, or will, be further detained but clearly only for the shortest period necessary to give effect thereto. Consequently, in this particular case the extent of the interference with such right is, at a practical level, the most minimal possible to respond to the EAW, and at a legal level is, entirely justified by virtue of the public interest in such process; a conclusion also fully supported by the express provisions of Art.5(1) of the Convention. Therefore, subject to the following point, the essential basis of his resistance is not one grounded in the Constitution but one referable to an alleged violation of Art.8, in respect of family rights.

39. There is a reference in the High Court to the difficulty which the respondent may possibly encounter in obtaining bail, pre-trial, if surrendered, because of having no residential address in the jurisdiction of the issuing State. It is not quite clear what influence that observation had on the ultimate decision. If any, it must be presumed to have been included in the balancing assessment of the respondent’s circumstances for the purposes of Art.8. Its only other possible use might be in the context of some suggestion that if returned, his Art.5 rights may be infringed. If that was the intention, which I very much doubt, it would have to be rejected. There are several reasons for this. Firstly, there is no suggestion that the bail laws in Poland, in and of themselves, and in respect of which no details have been supplied, are such as to engage Art.5. Secondly, it is not claimed that within such laws the respondent would be treated any differently to others in a similar situation. Thirdly, such a proposition, if sustainable, would have the effect of entirely nullifying the operation of the EAW process in respect of a great number of people who would not, in the ordinary course of events, be likely ever to have had, or to have retained, a residential address in the jurisdiction of an issuing State. Finally, even to assert an arguable case in this regard, it would be necessary to evidentially establish that by virtue of such laws there is a present and existing substantial risk that liberty would be flagrantly denied. This test was applied in Soering v. United Kingdom [1989] 11 E.H.R.R. 439 (“Soering”), which although an Art.3 case must equally apply to Art.5 cases. Accordingly, I am satisfied that in reality this is solely an Art.8 case.

40. The respondent avers in his Affidavit evidence, to a number of matters by virtue of which, he asserts an interference with his Art.8 family rights. Let me assume, without at this stage further comment, that what is alleged is sufficient “to engage” with the rights which are mentioned. Consequently, the jurisprudence from the European Court of Human Rights (“ECtHR” or the “Strasbourg Court”) will be most pertinent. In this regard, the general practice of following the consistent jurisprudence of that Court, save for special reason, should be noted; as should s.2 of the European Convention on Human Rights Act 2003, to the effect that, when interpreting and applying any rule of law the courts, subject to domestic interpretive rules, must do so in a Convention compliant manner. Section 4 of the same Act further provides that, when applying a Convention principle, due regard must be had to the judgments of the ECtHR.

Article 8 of the Convention:
41. Article 8 reads as follows:

      1. Everyone has the right to respect for his private and family life, his home and his correspondence.

      2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

42. The case law from the ECtHR on the provisions of this article, speaking only in the context of extradition/surrender, suggest that an examination of circumstances should be conducted by reference to a number of questions, which in their phraseology may somewhat change, but in their substance will not. These can be stated as:
      (i) is or will there be an interference, in this instance via surrender, by a public authority with the exercise of the respondent’s right to respect for his family life?

      (ii) if so, is that interference in accordance with law?

      (iii) if so, does that interference have the consequences of potentially engaging with Art.8 rights?

      (iv) if so, is such interference necessary in a democratic society, i.e. does it fulfil a pressing social need, such as in this case the prevention of disorder or crime and/or for the protection of the rights and freedoms of others?

      (v) if so, is such an interference a proportionate response to the legitimate public aim sought to be pursued?

One of many cases where these factors were considered is Buckley v. UK [1996] 23 EHRR 101. See also the comments of Baroness Hale in the Supreme Court decision in HH v. Deputy Prosecutor of Italian Republic, Genoa and Ors. [2012] 3 WLR 90 at para.30 incorporating this sequential approach into UK domestic law.

43. In practice, little if any real difference exists between what Heaney ordained and what the Strasbourg jurisprudence shows. That the measure in question should have a high level of importance and that the outcome of its individual application should have no greater impact than what is necessary to achieve its underlying objective, are evidently inherent in both, as is the relationship between “means” and “aims”. Whilst frequently the phrase “a fair balance” is used as between individual and community interests (Dickson v. United Kingdom (2008) 46 EHRR 41 (“Dickson”), Iosub Cara v. Romania (2008) 47 E.H.R.R. 35) such has no meaning different to that which is stated. Subject therefore to the margin of appreciation, which does not affect how these principles are stated, there is a very close similarity between both.

44. Furthermore, very much the same formulation is used in the United Kingdom. The judgments in R.(On the Application of Razgar) v. Secretary of State for the Home Department [2004] 2 AC 368 (“Razgar”), an immigration case where removal was resisted on Art.8 grounds, and in Huang v. Secretary of State for the Home Department [2007] 2 AC 167 (“Huang”), a similar case but with the important distinction next mentioned, closely reflect such description. Lord Bingham suggested in Razgar at para.17 that the following should be asked:

      “(1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety…? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”
Again Lord Bingham in Huang, adopted the definition put forward by the Privy Council in De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 A.C. 69, which described proportionality as asking;
      “(i) [whether] the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective”. (para.19)
To remove any doubt about the correctness of this formulation, Lord Bingham also highlighted the requirement of assessing overall balance (para.19). Although Razgar was a “foreign case”, thus attracting different public interest considerations from Huang which was a “domestic case” (para.47 infra) nonetheless, the structure of assessment in both is similar. Consequently, it can be readily accepted that the general test is well established.

45. It will be most unusual to find any challenge mounted in respect of matters referred to at questions nos.(i) and (ii) set out at para.42 above and perhaps also at (iii), although it should be noted that an impugned measure cannot simply have caused trivial or inconsequential harm: “to engage” Art.8 rights a minimum level of severity must be established (Costello-Roberts v. UK [1995] 19 EHRR 112). However, if problems should arise under this heading the trial court should have no difficulty in resolving them. Essentially therefore, if the proposed surrender order can be said to interfere with an individual’s private or family life, the resulting controversy will almost always centre on questions (iv) and (v) which, although stated separately, are frequently fused together for their combined or unitary consideration. In essence, the question will be whether the surrender, in the name of the objective which it pursues, can be justified when its causative effects on the person’s rights are stood against it? In any given circumstance, will the interference be proportionate to the legitimate aim advanced in support of it?

46. In this judgment I have used the phrase “to engage” on a number of occasions when referring to the Art.8 claim. I believe that such is both appropriate and accurate. By its use I mean to convey that the evidence adduced in that regard, has met the minimum level of severity, as the law requires, which justifies the court in proceeding with an inquiry so as to determine whether the asserted right has been infringed. It is not to suggest that there has been a breach which calls for justification: it is not even to suggest that there has been a prima facie breach. It simply means that the individual in question has met the evidential threshold which entitles him to advance the argument.

47. Before looking at a number of matters which influence the application of the above test, it would be worthwhile to be a little more specific in identifying what is and what is not under consideration. Firstly, as previously stated, the respondent’s assertion of family rights are those which he enjoys in this State, not those which he previously enjoyed or is anxious at some future time to once again enjoy, in Poland. This is an important point as the application of Art.8 differs substantially as between both situations. To apply a phrase borrowed from Lord Bingham in the joined cases of R(Ullah) v. Special Adjudicator, Do v. Immigration Appeal Tribunal [2004] 2 AC 323 (para.9) and the related case of Razgar, the instant case is therefore a “domestic case” as distinct from a “foreign case”. Secondly, this case is not one involving deportation or expulsion. Again, an obvious point but important to make nonetheless, the reason being is that the motivation driving the community’s interest in surrender, as distinct from (i) deportation or (ii) expulsion, is different; therefore the factors will differ. As these are critical in any balancing process, this distinction must be noted. Thirdly, Art.8 of the Convention is a qualified or conditional provision, quite unlike Art.3 in respect of which, if engaged, the prohibition against torture and other forms of inhuman and degrading treatment, is absolute.

48. The question therefore is whether the curtailment of the respondent’s family rights, in particular by the making of a surrender order, is justified by society’s interest, in a general sense, in the national prevention of crime and disorder and in a specific sense, in being a party to an international instrument, implemented by the EAW process, to further such end. No other matter, formal, technical or otherwise, arises. The High Court wishes to know if its proportionality approach to resolving that issue is appropriate in this jurisdiction. That is the decisive question which is at the heart of the reference appeal.

49. Lest it should be thought that my earlier comments about the certified question were somewhat pedantic, could I explain a little further. If I was to respond to the question as posed, in its literal meaning, the answer which I give, in particular to the second part of the question is, unequivocally yes. The operation of a statutory provision(s) is under review. It is under review because of its impact on family rights. In a case so defined where fundamental rights are involved, either under the Constitution or the Convention, a proportionality test is a fundamental tenet in the assessment of the challenge in that regard. This has been the situation for some time (para.31 supra) and I would be quite surprised if any dissention should now arise in that regard. Therefore, to solely rest one’s decision on this answer would be uninformative. Viewing the judgment as a whole and looking at the background context, the real point as I understand it, is not one seeking confirmation of Heaney or of the existing Strasbourg jurisprudence, but rather, is whether the circumstances permit of a more expansive and inclusive approach than the historical test envisages. If such should exist, at least in the form discussed in G.P.S. v. C or indeed even otherwise, it would apply at the level of principle to all EAWs, irrespective of whether fundamental rights were or were not engaged. As a result, every s.16 decision, for its validity, would have to meet such an overarching, far-reaching and stand-alone test. Is this the law?

Competing Interests: Public/Individual:
50. Before addressing such interests, it may be of value, even a decade later, to say something about the method of approach involved in such assessment and how the relevant factors should be considered. At the outset it should be noted that when the court comes to consider the proportionality element of its assessment (if that should arise), it is not engaged in the traditional or historical exercise of deciding a lis between the parties: this because, there is no question of the extraditee having to discharge any onus of proof in a legal sense, although of course he does carry an evidential burden, so as to engage with the asserted rights in the first instance. What the court must seek to do is to strike a fair balance between the competing interests at issue, namely, the right of the affected person, as assessed through his personal circumstances on the one hand and the interests of the community on the other. The former, which relate to the severity and consequences of the alleged interference, are almost always exclusively personal, whilst the latter, are always exclusively public. Both will call for a careful assessment, being fact specific, at the surrender stage. The importance of the individual in this exercise however, can justifiably be emphasised as his or her circumstances are liable to great variation whereas those of the State much less. There cannot therefore be any substitute for a detailed appraisal of the personal and family circumstances of the person in question and of the likely impact which a surrender order may have on their continuing existence; for it must never be overlooked that rights of prime significance are at issue. Those circumstances must be explored, if necessary by detailed analysis, for in each case the assessment process is fact specific.

51. It can be said, rightly, that this approach suffers from a sense of generality. Therefore, if a predetermined test could be devised, being one capable of resolving the issue, I would see merit in this as greater certainty would ensue. However, without unbalancing the very exercise demanded, it would be a high risk challenge to construct a formula which would be as responsive as the task demands. Given what is involved, namely an interference with a right correctly and for good reason described as fundamental, the enjoyment of which is highly personal to the individual and his circumstances, the evaluative approach in my view, is the preferred one. As was said in EB (Kosovo) v. Secretary of State for the Home Department [2009] 1 A.C. 1159 (“Kosovo”), there is no “hard-edged or bright-line” rule, fit for purpose in this regard (para.12). Therefore, I am satisfied that such an approach at least for now cannot be avoided.

52. A further word is this context: in conducting such an appraisal, some have suggested that an incremental approach is to be preferred (Baroness Hale in HH) as in this way there is little scope for the wrong question or series of questions to be raised: which of course if asked are more likely to lead to the wrong answer. Others (Lord Mance in HH) have questioned any rigid line of enquiry, as an individual answer to any given question may distort the ultimate or overall conclusion, which of course would be self-defeating. For my part, provided all of the relevant circumstances are addressed and some element of cross reference is made, so as to test the positioning and weight of each factor and the soundness of the ultimate conclusion, I would not have a preference for one approach over the other. The presenting circumstances of each case, as assessed by the judge, will determine the lead in to this enquiry and will also dictate the level of consciousness of the overall review. Subject to that however, the essential point to emphasise is the fluid and composite quality of the exercise, with factors being adjusted, if necessary, to reflect its ongoing and perhaps changing nature.

Public Interest: How it is Measured:
53. There is no general duty in international law by which a state can be compelled to extradite from its territory a person within it. Such a requirement stems from obligations freely undertaken, either through bilateral or multilateral treaties or as in this case, by membership of a collective structure, under which mutual rights and obligations are created. In this context there is without pause or thought, a high level public interest in the implementation of the EAW process. It is of vital concern to every citizen, his fellow citizen and the society of which they are a part, that public order is maintained, the most vital element of which is the prevention and detection of crime and where committed, a state’s ability to respond. It is therefore essential for the orderly running of a democratic society, which at a key level includes, the protection of fundamental rights, freedoms and security for all and for their property, that fugitives should be brought to trial for serious offences, that those convicted should serve their sentences, that no sanctuary of immunity should exist for such persons and that the public, not only nationally but also internationally, is aware of the state’s commitment to honour its obligations in this regard. The existence, maintenance and support of a process based on international reciprocity which implements these principles, is therefore of fundamental value to society. It follows accordingly that these matters, in the evaluative process under discussion, must be properly recognised and duly rated in the assessment required.

54. Inherent within the balancing exercise of which I speak, is the attachment of weight and the assignment of importance to identified factors which the court is permitted to consider. How is this to be done? Norris, although an “extradition case” involving a Category 2 territory and therefore outside the Framework Decision, can nonetheless be considered as relevant as the statutory provision in question, the issues raised and the manner of their disposition, apply equally to a surrender request made by a Category 1 country (English Extradition Act 2003). Norris was wanted by the State of Pennsylvania to stand trial on one anti-trust charge and three charges of obstructing the course of justice. His ground of resistance to the order sought, being that of interest to us, was based on his Art.8 rights, which included his ill health and a mutual dependency on each other which he and his wife enjoyed over very many years. To correctly position the standing of the community in the extradition process Lord Philips, whilst rejecting the existence of any absolute rule that interference with family rights will always be justified, nonetheless was prepared to apply a “categorical assumption” (para.49) about the importance of extradition which in his view “weighs very heavily indeed” (para.51) in any contested application. Only if “some quite exceptionally compelling feature, or combination of features” (para.56) were present, would interference with such rights be otherwise than proportionate. It was therefore quite accurate to say that only when the consequences of such disruption are “exceptionally serious” (para.56) will Art.8 rights outweigh the importance of extradition. Whilst some differences in approach and perhaps phraseology can be noted in the other judgments as delivered, all of their Lordships agreed in general with Lord Philips and were supportive of his view. For example Lord Hope (para.91) said that the public interest is one to which “powerful consideration” should be given and is one which carries “great weight” in any grading of its importance. Lord Hope also suggested that the public interest is, “a constant factor” and should be so recognised (para.91). Lord Mance (para.105) likewise said such interest was a “powerful one”. Others used similar expressions. Although invited to do so, the United Kingdom Supreme Court in HH declined to modify Norris.

55. The situation in the United Kingdom therefore, is that the public interest in extradition proceedings is a weighty and thoughtful one and as a result, it is only in the rarest of cases that an asserted interference with family rights will outweigh such interest. It may also be said to be a “constant factor” in any such proceedings.

56. For a number of reasons I would be inclined to approach this issue in a somewhat less rigid and less prescriptive manner. Firstly, I agree that by virtue of the matters identified the public interest is a “constant” one, but only at the horizontal level. I accept that such interest is invariable in the sense that it is a permanent feature of such cases, but not that its value is incapable of change. The interest, whilst ever present, will vary on the vertical scale, depending on the seriousness of the given crime(s). It could hardly be doubted but that the graver the crime, the greater the interest. Petty shoplifting is not the same as a gallery theft or vault raid. However, whilst the opposite effect, namely “the lesser the crime the lesser the interest” may not follow in corresponding proportion, nevertheless, even that reducing interest also has a “constant” to it, in the sense described. Consequently, where on the spectrum the subject offence may sit, is an aspect of each case which must also be explored as part of the process. In addition, other matters such as delay may become relevant. Secondly, to adopt an approach based on assumptions, either set at a prima facie level or indeed even expressed more tentatively than that, may have the unintended effect of curtailing the fullness of the exercise required and of routinely disadvantaging a respondent. Thirdly, to suggest that the public interest in extradition is “systematically” served by the making of a surrender order (para.26 supra) is close to suggesting a foreclosure on the issue, a view I cannot agree with. I therefore do not favour any fixed or specific attribution being assigned to the importance of public interest in this context. Every case on both sides of the assessment will have its individual set of values and must be so viewed.

57. Having said that however and whilst fully respecting the autonomy of the exercise which I mention, it can also confidently be said that, given the centrality of the role which an efficient and functioning surrender system plays in the preservation of society in which fundamental rights are protected, the public interest in such a process, will almost always attract a rating at the higher end of importance provided, the evaluative process is properly conducted. Such a positioning of course may require adjustment in either direction so as to reflect material factors in any given case, but even allowing for this, the “generality” of the point made in my view remains valid.

Individual’s Interest: How it is Valued:
58. The other interest, competing with that last described, stems from the rights attaching to the individual, as such, and in this case to his involvement with others as part of a family group. It is an exercise in obviousness to state that any extradition process is most likely to result in arrest, probably or at least possibly in detention, and on a successful application, in one’s forced expulsion from the State. Therefore, such consequences, apart from degree, are unavoidable, being those which are inherent in the regime itself and without which the process could not be implemented. Article 5 of the Convention, which confers on every person a right to liberty and security of person, makes specific provision for a number of exceptions to such right, which includes that stated at 1(f), namely, “the lawful arrest or detention of a person … against whom action is being taken with a view to deportation or extradition.” The Art.8 qualification of the rights respected in para.1 of that Article, includes a reference to the “…prevention of disorder or crime…” and “…the protection of the rights and freedoms of others.” (article 8(2)). Both of those rights and several others, together with their exercise, are therefore conditional. Consequently, the Convention itself recognises the necessity for intervention with the exercise of such rights in certain situations, including extradition. Accordingly, it would seem to follow that factors which, as a matter of inevitability directly result from all extradition orders, cannot attract great value. Certainly, it would be exceedingly difficult to establish that such factors, in and of themselves and by their existence alone, could constitute a disproportionate interference with for example, family rights and thereby outweigh the public interest in extradition. If such was the case, the public interest would routinely be nullified. Consequently, reliance on matters which could be said to typically flow from arrest, detention or surrender, without more, will little avail the affected person.

59. What is likely to be of far more significance are the injurious effects and harmful consequences which the public action would have for that individual and others properly identified with him. A generality of pleading is likely to carry little weight in this regard. What the court will search for and explore is the real and personal extent of the repercussions which the act complained of, will have for the persons affected.

60. In an endeavour to address this quite complex interplay of interests, certain English cases have suggested that before an interference with family rights can defeat an application for surrender, the intended extraditee must meet a “high threshold”, establish “exceptional circumstances”, or identify “striking and unusual features”, peculiar to him. Lord Bingham in Huang pointed out that “exceptionality” is not a legal test (para.20). I respectfully agree and add only that the same point holds good in most areas of law. In any event, the standard set by Art.8 is not one of exceptionality but one of proportionality. In addition, any approach so driven has the clear but erroneous implication that there may be a responsibility on the affected person to establish such matters, presumably to the probable level, which as previously pointed out (para.50 supra), is not the case. To suggest or to imply that a fruitless search for “unusual facts or circumstances” concludes the matter, must I think, be incorrect. If such were so, then a great number of Art.8 cases would have no merit to evaluate or purpose in evaluating. A quick survey of some of the case law involving family rights, will show that the underlying facts relied upon will closely parallel those of many other families or family units, whether in an Art.8 situation or otherwise. Children live with their mother, who frequently may be a single parent: children and mother may rely on a husband, partner or the father as the sole breadwinner; a disabled parent may be totally dependent on a family carer; none of these examples, of which there are many others could hardly be described as unusual or as uncommon experiences of life, in this or in any time, or in this or in any Member State. And yet a severance or disruption of any one such relationship could have devastating consequences for those affected. Accordingly, if the balancing approach be correct, such an exercise clearly disfavours the creation of any rigid or specified yardstick against which an Art.8 infringement should be measured.

61. Notwithstanding what I have just stated however, it is important to note that the Strasbourg Court as well as the Commission, have also looked at this issue and in many cases have used the language of “exceptionality” or that closely reminiscent of it, in the present context (Dickson). In Soering (para.2), the court, on the Art.6 complaint, did not exclude the possibility that an issue might “exceptionally” arise where extradition could be refused if the risk of a flagrant denial of a fair trial could be established: the Commission in Launder (Launder v. United Kingdom [1997] ECHR 106), at para.3, when finding an alleged Art.8 violation as manifestly ill-founded said that “it is only in exceptional circumstances” that extradition of a person on a serious offence would be held “to be an unjustified or disproportionate interference” with his Art.8 rights. It should be noted that Soering’s assertion related to what may occur in the requesting state if returned, as did Launder. However, despite that point of distinction, it is clear that howsoever described or approached a successful reliance on Art.8 will not be easy. Indeed, I have not been able to identify a single case from the Strasbourg Court in which it was said that extradition would be an interference with Art.8 rights, which were enjoyed in the requested State. That in itself is a powerful reflection of the positioning of the public interest in this process.

62. The importance of the observation last made is also very evident from the case of Minister for Justice, Equality and Law Reform v. Gheorghe [2009] IESC 76 where the respondent sought to oppose his surrender inter alia on Art.8 grounds. The High Court rejected this submission “in limine” as did the Supreme Court: Fennelly J. at para. 48 said,

      “It is a regrettable but inescapable incident of extradition in general and, as in this case, surrender pursuant to the system of the European arrest warrant, that persons sought for prosecution in another state will very often suffer disruption of their personal and family life … No authority has been produced to support the proposition that surrender is to be refused where a person will, as a consequence, suffer disruption, even severe disruption of family relationships.”
The disposal of that argument in such a manner clearly reflects in explicit detail the difficulty which a respondent meets on any Art.8 defence.

63. In summary, where resistance is offered by virtue of a Convention or Constitution right, the court must conduct a fact-specific enquiry into all relevant matters so that a fair balance can be struck between the rights of the public and those of the person in question. Such an exercise is not governed by any predetermined approach or by pre-set formula: it is for the trial judge to decide how to proceed. Once all of the circumstances are properly considered, the end result should accurately reflect the exercise. As part of the process, each of the competing interests must be measured. If appropriately conducted, the interests of the public, underpinned as they are by weighty considerations such as freedom and security, will virtually always merit a value of significance whereas those attaching to an individual will be more variable. The greater the impact to the person, the greater the weight. Consequences, inherent in the process itself, without more, will attract a much lesser value than consequences with real and substantial effect on the individual.

The High Court as EJA:
64. It is clear from what is above stated that Irish law is familiar with the principle of proportionality and what that entails. Equally so with regards to the jurisprudence of the ECtHR in this respect. I therefore have no difficulty in accepting that in the assessment of his Art.8 rights, the respondent is entitled to make use of this concept. In accordance with established case law, both the decision complained of and the basis of its challenge, comfortably fall within its parameters. As was stated in Dundon “Persons cannot be surrendered compulsorily from one Member State to another except in accordance with an open and transparent judicial procedure which guarantees respect for fundamental human rights” (Fennelly J. at p.546). Consequently, the High Court, where it has to engage with Convention rights such as those conferred by Art.8, is fully entitled to apply this principle. There is nothing contentious about this conclusion. As will be shown, many of the factors suggested as being relevant in this regard, are in fact so.

65. However, there remains controversy as to whether the executing court may consider a number of other matters, such as the cost and “other burdens” involved in executing the EAW and the likely sentence which an affected person, on conviction, might receive. These were factors which the High Court in this case had noted in its decision. The reference by the trial judge to the likely sentence, inherently involved some assessment by him of where on the seriousness spectrum the subject offence should fall. The purpose of this was quite unrelated to the qualifying condition of minimum gravity, in respect of which he saw no role for the de minimus rule. Rather, when viewed with another passage of his judgment (-that trivial and petty offences were never intended for inclusion-: para.23 supra), it must be regarded as reflecting unease about the use of this process where the offence is considered less than serious. However, given that once within the overall scheme the specification of an offence to ground the EAW is a matter for the issuing authority and that the financial and administrative burden of executing the EAW appears to rest at the executive/political level, it must be asked what role, if any, does the High Court have in either regard?

66. It is to be greatly doubted that such factors purely as a matter of domestic law, have any relevance in the context applying. Certainly no authority has been cited in this regard. In all of the relevant case law, the factors of materiality in conducting a proportionality test have all been specific to the person or to his individual circumstances. Matters correctly described as external to either, are not considered. Therefore, it cannot be accepted that this approach has any general foundation in Irish law.

67. If the respondent’s submissions in support of the learned judge on this aspect of the case are correct, it would follow that at the execution stage, all matters, including but not limited to those above mentioned, would be open for consideration. In deference to mutual respect however, it is said that the High Court would not look behind the issuance of the EAW, but nonetheless as part of its s.16 jurisdiction could still review all circumstances, existing then or thereafter, in its evaluation of proportionality. If that proposition was accepted, which in itself is difficult to contemplate, the doctrine as heretofore known and applied, would, have to be redescribed as including something akin to a “freestanding” test, such that every requested person could seek to resist a surrender order by canvassing a most wide-ranging review of virtually all and every circumstance. In addition, of course where applicable the principle of proportionality, as conventionally understood, could also be utilised in Constitution and Convention challenges. The question thus is whether such a far reaching extension of the principle is either permitted or justified.

68. The Minister’s response is short and decisive: he rejects the existence of any such proposition and dismisses it as having no foundation in law.

69. It seems clear that this submission, which might never have surfaced but for the existence of significant disquiet about the “nature” of some offences, is addressed to the creation of some method by which offences of a minor or petty nature should not trouble a requested State, it being forcibly argued that the use of the EAW for such offences is an abuse of a core value of the Framework Decision. It is said that if a proportionality test is not applied or applied affectively at the issuance stage, then as a corrective measure, a version “two type” test should be applied at the execution stage. If adopted, such would give rise to the establishment of what has been loosely called “a triviality bar”, which could operate as a further ground for refusal. This immediately raises two questions: firstly, is there a problem of a generalised nature in this regard and secondly, if there is, what is the legal basis upon which any response can be given, either by reference to domestic or European legislation or case law such as G.P.S. v. C, or otherwise.

The Published Data:
70. The High Court commenced its decision by stating that, not only has an IJA a discretion to apply a proportionality test but that at both a political and legal level there was a “obligation to do so”. As the political level is the domain of those engaged in public life in that way, any objective derived from such a direction is not one upon which rights or obligations can be found. That is not to say however that activity at EU level is irrelevant to this issue. On the contrary it is quite pertinent: therefore a brief reference to the information available on the working of the Framework Decision over the past number of years will be instructive.

71. Art.34 of the Framework Decision required both the European Council and the European Commission to conduct a review of the operational efficiency of its provisions, as seen from its functional implementation by and between Member States. Both institutions have done so on a number of occasions, covering different periods, since the introduction of the system in January 2004. Statistics have been compiled, reports created and submitted, and a revised handbook on how to issue an EAW, has been published. A number of problems have been identified with its workings: those relevant to the present discussion directly touch on the disparity of approach between issuing States, particularly having regard to the nature of the offence in respect of which a request is made.

72. It can hardly be doubted but that in principle, the system was designed to further the prosecution of the more serious and damaging type of crime and with the custodial enforcement of resulting convictions. One can I feel, confidently say that the systematic use of the warrant to capture, what by common definition can be described as “petty” or “trivial offences”, was never intended. However, such is now common practice and has given rise to concerns at the highest level. The solution which has been suggested is the uniform application of a proportionality test at the issuing stage.

73. From the source references given, the following information has come to light:

      (i) there is a belief that the Framework Decision does not include any obligation of proportionality, at either the point of issue or execution, nor does it include any ground for non-recognition in relation to it;

      (ii) as a result, offences, although technically within Art.2, but which of themselves in a given situation are not serious enough to justify the imposition of execution on a requested State, are routinely the subject matter of an EAW;

      (iii) confidence in the system has been undermined by the consistent use of the process for this purpose: very often offences of a most “minor nature” are involved, examples of which include:

        - detention of 0.45 grams of cannabis,

        - detention of 1.5 grams of marijuana,

        - detention of 0.15 grams of heroin,

        - detention of 3 ecstasy tablets,

        - theft of 2 car tyres,

        - theft of a piglet,

        - driving a motor vehicle where the excess alcohol level was minimal (0.81 mg/l).

      (iv) there is common agreement amongst Member States at executive level that, a proportionality check is necessary so as to eliminate offences which could not justify the measures of cooperation which the execution of an EAW impose. Factors which should be considered in such a check, include the seriousness of the offence, the length of the sentence, the existence of an alternative approach and the carrying out of a cost-benefit analysis regarding the execution of the warrant.

      (v) in the revised handbook published by the Commission, these changes are reflected; if implemented, the same should have the desired corrective effect.

      (vi) the Commission, in a report for the Parliament and the Council dated the 11th April 2011, warned that if the existing situation should continue, the same may “…lead to a situation in which the executing judicial authorities…feel inclined to apply a proportionality test, thus introducing a ground for refusal that is not in conformity with the Council Framework Decision or with the principle of mutual recognition on which the measure is based.” (see p.8) and finally,

      (vii) the statistics available cover the period from 2005 to 2009 and show that Poland has issued by far the greater number of warrants with almost three and a half thousand being authorised in 2007, and over 4,800 in each of the succeeding years.

The sources referred to include, the Presidency of European Council, the Working Party on Cooperation in Criminal Matters, 9th July, 2007: Conclusions of the General Secretariat of the Council to Delegations, 17th December, 2010 and the Report from the Commission to the European Parliament and the Council, 11th April, 2011.

74. The practice above described, has also been observed and commented upon at judicial level, an example of which is the remark by Maurice Kay L.J., during an adjournment hearing, in Zak v. Regional Court Bydgoszcz (Poland) [2008] EWHC 470 that, whilst he had seen EAWs issued for less than serious offences, he had never “seen one quite as low down the calendar” as this, referring to the alleged theft of a mobile phone (see also para.87 infra).

75. Before responding to the legal submission made in this regard and irrespective of the conclusion which I reach, I wish to add my voice to this debate. The aims, objectives and pursuits of the Framework Decision, at least in large measure and to a great extent, are not in controversy. The recitals and articles thereof make this clear. As does the underlying basis and the foundation upon which that basis rests. Mutual recognition and the broader concept of mutual trust, are inextricably wedged to the objectives of the Directive. Mutuality of respect to such objectives is therefore essential.

76. It is clear, admitting of little controversy, that the spirit of the Framework Decision is being stood down: not on isolated occasions or in a haphazard way or even randomly without reason. What has happened is that some Member States have utilised the process to seek the return of individuals who are suspected of having transgressed criminal law, in some very minor way. Even making generous allowance for the variety and diversity of individual legal systems and for differences relating to social, political, religious and cultural norms within each and where such norms may sit in the hierarchy of the particular society, nonetheless, at least at the level of principle, each Member State who bought into the scheme did so appreciating its core objectives, and in so doing committed themselves to further them, even if individual and isolated cases had to be sacrificed. To offer the principle of compulsory prosecution as a justification for such action, if that is the case, is to fail to appreciate the fact that unlike purely domestic crime, which is of concern only to the host State, the issuance of an EAW imposes obligations and responsibilities on another sovereign State. Therefore, such an act has much wider implications than the former and accordingly requires a more critical assessment in the first place. As Lord Phillips said in Assange “It does not necessarily follow that an offence that justifies the issue of a domestic warrant of arrest will justify the issue of an EAW” (para.90). No Member State is entitled to, and as a matter of prudence should not, stretch the operation of the Framework Decision to a point, even if technically within its terms, where mutuality of respect and confidence is compromised. If this should repeatedly occur, in a manner recognised by other Member States or those entities at EU level involved in its operation, it is not difficult to foresee that consequences will follow.

77. Whilst I recognise that what may be of concern at the collective level of all Member States (“higher level concern”), may be much subdued at individual state level, nonetheless it should not be assumed that a Member State which is frequently called upon to deal with very minor offences, will continue to do so without searching its own legislation for means of legitimately rejecting such requests. Such a step would be undesirable but understandable even where the State is otherwise fully committed to the Framework Decision. It can readily be avoided. In a word the principles of the Framework Decision must be respected: the successful operation of the system, which is so critical to the prevention of crime, the bringing to justice of those suspected of crime, and the incarceration of convicts to serve their imposed sentence, is so vital to the citizens of all Member States, individually and collectively, that the mutuality of which I speak, must be visibly adhered to. Any regression from such must therefore be avoided.

78. As I have stated there is available an immediate solution to the difficulty. It is I believe fully accepted that the Framework Decision allows for the application of a proportionality test at the issue stage. Art. 2.1 states “A European Arrest Warrant may be issued …” [emphasis added]. This affords the basis for such approach. If adopted and applied in a uniform way, this long-running and serious issue could be resolved.

Legal Basis:
79. The case G.P.S. v. C, which is offered as a basis to sustain the submission under review (para.25 supra paras.65 and 67 supra) was not extensively discussed by the learned judge: he simply indicated his agreement that the matters which the German court took into account (para.25 supra) were appropriate for his proportionality assessment. If the factor relating to “cost and burden” on the executing judicial authority was not included, further consideration of that court’s ruling, at least at the level of principle, might not have been indicated, as the other matters noted are undoubtedly relevant: this by reason of their attachment to the Convention right as asserted. But it was, and was so adopted by the learned judge in the High Court. Therefore, the case undoubtedly has a significance in that particular respect. However, to view its relevance only by this approach may be to treat the case too narrowly. What is of much more interest, is the manner by which the Higher Regional Court in Stuttgart arrived at its decision: by this I mean not procedurally, but substantively. It appears that it invoked a wide-ranging form of proportionality as part of its surrender jurisdiction, considering amongst other matters, the above mentioned “cost and burden” factor. Therefore, further reference to this case is well justified so as to assess the wider legal basis upon which the court rested its judgment.

80. The facts of the case are not individually relevant, save to note that the return of Mr C to Spain was sought in respect of an offence relating to the sale and supply of cocaine, which, regardless of quantity, carried a sentence range of between three and nine years. In the particular case, the Spanish prosecutor sought a four year sentence. The quantity involved however was very small, being 0.199 grams.

81. The court considered the Spanish request by differentiating between the “execution” itself, of the EAW and the domestic arrest (“extradition arrest”) of the individual, which of course preceded the formal surrender hearing which I suspect is akin to the s.16 process in this jurisdiction. Art.73 of the relevant German legislation, “IRG”, prohibits the extradition of any person to a Member State if such would infringe fundamental rights or be inconsistent with fundamental legal principles as enshrined in Art.6 TEU. It matters not whether one applies the provisions of that article, in their form pre or post-Lisbon as either way, the principle of proportionality “of criminal offences and penalties”, forms part of the constitutional traditions common to Member States.

82. That principle is now expressly articulated in Art.49(3) of the Charter of Fundamental Rights and reads “[t]he severity of penalties must not be disproportionate to the criminal offence.” This provision was applied by the court, in accordance with Art.51(1) of the Charter, by holding that when invoking its domestic legislation in this area it was in effect implementing Union law, and therefore access to the Charter was permitted. This conclusion was not affected by the date of its coming into force (1st December, 2009), even when considered against the earlier date of the EAW. Consequently, the execution of any EAW had to satisfy the Charter, by respecting in this case the proportionality requirement as mentioned.

83. In the field of treaty based extradition, German jurisprudence permits an individual’s return even if the demanded sentence could be described as “very severe”, or even “too severe”: the impermissible threshold being one of “intolerable severity”. Case law dictated a consideration of all relevant facts in this regard. The exercise conducted by the court included an assessment of the quantity of the drug, its possession for supply as distinct from personal consumption, the poor criminal record of the affected person who could be considered a recidivist, and the absence of any mitigating factors such as, police cooperation. In addition, it had regard to the general Spanish practice of deporting non-citizens in lieu of serving any imposed sentence of under 6 years, to the intended adoption by that country of mitigating measures to reflect cases involving only small quantities of drugs and to the safeguarding principle of “speciality”, in the event of Spain wishing to prosecute the person for other offences. Its conclusion was that Mr C did not fall foul of that test.

84. The court then considered the extradition arrest and began by invoking Art.12, first sentence of the Framework Decision, which declares that “When a person is arrested on the basis of a[n] [EAW] the [EJA] shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State.” This means that such decision, even if made in furtherance of an EAW, remained a sovereign act, being unaffected by the Framework Decision. Therefore any such arrest must be in full conformity, not simply with the implementing statutory provisions, but also with German constitutional norms which include the principle of proportionality. Given the supremacy of its source within the national legal order, this principle applied even though the underlying statutory provision is silent in this regard. Therefore, a proportionality test of the “extradition arrest” order was also necessary.

85. That the overall process involves two distinct steps is of some importance, as the court was anxious to emphasise, when it said that:

      “the proportionality check of a German extradition arrest warrant must not be confused with a proportionality check of the underlying European arrest warrant itself. Many experts hold that, due to the principle of mutual recognition, it is not possible for the executing Member State to check the proportionality of an EAW. However, it must be noted that the Council of the European Union assesses the problem of disproportional EAWs to be a ‘priority’”. (emphasis added)
It quoted the Final Report on the Fourth Round of Mutual Evaluations prepared by the Council on the 28th of May 2009 in support of the emphasised quote.

86. In its actual assessment of the second step the court identified by name the matters referred to by the learned judge in the instant appeal (para.25 supra). In addition, as Mr C was in custody at that time in relation to another matter, the added burden of being subject to an extradition arrest was not major, nor did the court consider the offence as a petty one. It therefore concluded that this domestic arrest likewise was not disproportionate to his right to liberty.

87. That last remark about the nature of the offence was clearly case specific: however, the court also had some general comments on this topic, pointing out that, where the offence is “petty” and the demanded sanction severe, the issue of an EAW can be disproportionate not only as a burden on the affected person but also for the executing State. Recourse to the multiple use of the process for such type offences, have “long been” noticed by both the prosecution service and the court. Indeed the court has previously refused to extradite a person who had sold 0.05 grams of heroine-cocaine-mixture, where the requesting state sought a ten year sentence and also has dismissed an application for an extradition arrest, where a two year sentence was sought for simple possession of 1.435 grams of methamphetamine in respect of a person without criminal record. It therefore seems clear that the essence of the problem has been noted and that in the past individuals, on whatever precise basis, have not been extradited where a relevant circumstance has been the marginal nature of the specified offence.

88. It thus appears from the decision as a whole that, the court implied an “overall proportionality test” in arriving at its decision despite the fact that neither the Framework Decision nor the relevant German legislation made provision for this.

89. Although evidently impressive and clearly significant, I hesitate to adopt the decision in G.P.S. v. C for a number of reasons: (i) the source of the information used in this discussion is a review article entitled “Case Comment: Proportionality and the European Arrest Warrant”, Crim.L.R., 2010, 6, 474-482 by Vogel and Spencer and not the judgment itself, which, despite all efforts, could not be procured; (ii) it is clear that domestic law, including constitutional law, featured prominently in the decision but it is not possible to decipher its full or true significance; in any event such is a matter for that jurisdiction only; (iii) it would appear that under German law, surrender can be refused if the disparity between the crime and the demanded sentence is disproportionate. As the above discussion discloses, a comprehensive court review is required in such a context. No case in this jurisdiction has been identified as giving rise to such a comparable rule or practice; (iv) the subject of the assessment was the relationship between a specific crime and the demanded sanction, not an issue, in any defined sense, in the instant case. Further, the type of detailed information utilised by the court in its assessment is entirely absent from this case; (v) it is not possible to say what weight was ascribed to any given factor including the nature of the offence: it does however appear that triviality as a bar in its own right was not clearly defined; (vi) the interplay between the provisions of Art. 49 of the Charter and the equivalent domestic rules remain unclear, as is the extent of the court’s ultimate reliance on the Charter; (vii) no submission was made regarding the novelty of approach in differentiating between what the court called “extradition arrest” on the one hand and “execution” of the EAW on the other; (viii) the observations made by the court which are relied upon in the instant case were undoubtedly obiter and although the court did note with approval previous decisions reflecting those observations, nonetheless such decisions likewise were not available. Accordingly, I am not disposed to rely upon that judgment in the present case.

90. A further word however is required regarding the potential use of EU law as a foundation for the court’s approach as well as its reliance on domestic law. It is submitted that the sort of proportionality test above described is now recognised as constituting a general principle of Union law and therefore should be applied to the instant case. Proceeding on that assumption for a moment, without so deciding, it must be noted that no authority has been cited for the proposition that domestic legislation (2003 Act) must be interpreted in accordance with the whole corpus of that law and not purely by reference to the underlying measure, in this instance the Framework Decision, which it gives effect to. In the absence of such authority I am not prepared to expressly hold that such a proportionality test stands outside, or exists separate to or should be applied independently of, the measure in question. It seems to me that the correct application of such a principle is by reference to the provisions of the Framework Decision.

Conforming Interpretation:
91. What now must be considered is whether the 2003 Act, as properly construed, can be read as permitting the type of proportionality test as above advocated. In applying purely domestic interpretative rules it would appear not. From the analysis above supplied, in particular by reference to ss.10 and 16 of the Act, the warrant, if otherwise valid, must be enforced unless the court is prohibited from so doing by virtue of some statutory bar. Where such is engaged and if a point of contest involves the application of a proportionality test, such test is that provided for by Heaney and/or the Strasbourg Court, neither of which encompasses the type of free-standing approach as is argued for on this issue. Furthermore, several cases, including Koncis support this conclusion. Therefore, viewed purely in accordance with normal rules of construction, the 2003 Act does not so allow.

92. It is common case that the Framework Decision does not have direct effect but is binding as to the results to be achieved. As a result, each Member State was obliged to enact domestic legislation, so as to give effect to the objectives sought to be pursued by the Decision. In all there are therefore 27 Member States involved, each of whom has enacted, what in their sovereign opinion, is the most appropriate means to give effect to Decision. In this jurisdiction the legislature has passed the 2003 Act. It is by the provisions of that Act that this State operates the EAW regime. As earlier mentioned, the Framework Decision is only part of Irish law in the way permitted by that Act and not otherwise.

93. This point is made for the obvious reason that, as a requested State, the courts of this jurisdiction cannot be expected to be familiar with the implementing law internal to other Member States. Of course the same conversely applies to all other States. Consequently, unless one can do so at a level separate to the domestic one, it is neither possible nor desirable to make any worthwhile observations on how other Member States discharge their duty when acting as EJA. Evidently, the same comments apply when that judicial authority is acting as the IJA.

94. The Framework Decision was a third pillar measure, first established by the Treaty of Maastricht, 1992, the overall objective of which was the creation of an area of freedom, security and justice by developing common action in a number of areas; these included, at a general level, judicial cooperation in criminal matters, and at a specific level, facilitating extradition (Art. 31(a) and (b)). It was adopted in 2002 under Title VI of the TEU, having as its legal foundation Art. 34(2) of that Treaty. This provision permitted the European Council, after due compliance with the procedure specified:

      “(b) [to] adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect”.
95. Under that article, in the areas referred to in the text, Member States were obliged to inform and consult with one another with a view to coordinating their action. To achieve this there is then set out the range of legal measures or instruments which the EU may adopt in that regard. These are “common positions”, “framework decisions”, “decisions” and “conventions”. These do not include directives. Evidently, the method adopted to further cooperation in the extradition field was the Framework Decision. Article 34 has now been replaced. For the current provisions governing the “Area of Freedom, Security and Justice” see Title V, Chapter 1 TFEU and in particular Chapter 4 dealing with “Judicial Cooperation in Criminal Matters” (Arts. 82 – 86 TFEU).

96. As can be seen, the form of wording used, closely replicates that used in Art.288 TFEU (formerly Art.249 TEC), to describe the legal nature of a Directive. However, and despite such similarity, a Framework Decision self-evidently does not have like impact, as it lacks direct effect, nor does it have like status. Such measure fits into the EU legal order at a level different to that of a Directive. Therefore, unless by express identification, it is not easy to see how it could attract or be subject to the same principles as a Directive. This must be the case for if it were otherwise, there would be no distinction between and no purpose in distinguishing both measures. Therefore, at least at a prima facie level, it is difficult to see how a principle of European law can apply to a Framework Decision simply because such a principle applies to a Directive. Consequently, it must be doubtful that cases, such as Von Colson und Kamann v. Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891 can, without more, be taken as applying to a Framework Decision. This has relevance to a point arising out of the Pupino (Case C-105/03) [2005] ECR I-5285, decision, which I shall look at in a moment.

97. The principle under discussion is one of interpretation: it is, staying at a general level, that national measures introduced to implement a “Directive” must be considered, in light of the wording, purpose and objective of the Directive, so as to achieve the results intended by that Directive (Marleasing SA v. La Comercial Internacional de Alimentación SA (Case C-106-89) [1990] ECR I-4135). The justification for this approach has both a specific reference point, being the wording of Art.288 TFEU and a more general one based on the principle of loyal cooperation between Member States, expressed in the requirement to take all appropriate measures “to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community” (Art.10 TEC). There is no such comparable provision in the TEU.

98. In Pupino, the Framework Decision in issue was not the same as in the instant case, but was one with legal characteristics identical to the subject Decision. In principle, two arguments were addressed by the court. The first to the effect that, as a Framework Decision was quite distinct from a Directive, the principle of conforming interpretation, which applies to the latter, did not apply to the former. Secondly, the same conclusion was urged on the basis that, as the Court of Justice on previous occasions had in part relied upon Art.10 of the TEC as a justification for this rule, it could not do so now given the absence of a comparable provision in the TEU. The court rejected both arguments.

99. It concluded that the conforming rule also applied to a Framework Decision on the basis of its “binding” character “as to the result to be achieved”: relying on the particular wording of Art.34(2)(b) TEU in this regard. In addition, the court effectively implied into that Treaty a provision of “loyal cooperation” very much as if the provisions of Art.10 TEC were expressly replicated in it. Its justification in this regard was that otherwise, “it would be difficult for the Union to carry out its task effectively”. It therefore confirmed that “the principle of conforming interpretation is “binding in relation to Framework Decisions” adopted under Title VI of the TEU. Thus, national courts must interpret national law “so far as possible in the light of the wording and purpose of the Framework Decision in order to attain the result which it pursues”. Finally it went on to identify the point at which the obligation would be exhausted: any interpretation which the words could not carry, or went against “the grain” of the text, discharged the principle. Contra legem applies (para.47 supra).

100. So much however for the decision itself, an interesting question then arises as to the source of the court’s jurisdiction to give a preliminary ruling arising out of a Framework Decision. Indeed, in its lead in to the above mentioned findings in Pupino, the court dealt with this very issue.

101. The general power of the Court of Justice to give preliminary rulings is that as now contained in Art.267 TFEU (ex Art.234 TEC: ex Art.177 TEC). That power is applied, pre-Lisbon, by virtue of Art.46 of the TEU to any measure adopted under the provisions of Title VI of that Treaty subject to “the conditions provided for by Art.35”, thereof. That article expressly confers on the court, jurisdiction to give preliminary rulings on the “validity and interpretation” of framework decisions: however, in order to access the jurisdiction of the court in this regard, a Member State must make the declaration specified in subpara.2. That is the jurisdictional link between a State and the court. On making the declaration, a Member State by that act, is empowered on the one hand to seek such a ruling but on the other, as a corollary, undertakes to accept the court’s jurisdiction which evidently includes the binding nature of the resulting opinion. There are thus two aspects to the situation. Italy has made the declaration and hence, Pupino, as Belgium has and hence, Advocaten voor de Wereld. If however no such declaration is made what is the position? If it is accepted beyond question that in such circumstances no preliminary ruling can be sought, which it is, it is difficult to see how at the same time the court’s opinion could be compulsorily imposed on such a Member State. In the absence therefore of some such process by which this might result which has not been identified, this can only mean that in the former situation, the court’s ruling must be followed, whereas in the latter, no such requirement exists. To suggest that a similar result follows even in the absence of a declaration does not appear correct. For, if it were so, the entire process of submission would be nullified, and Member States, without subscription, would be as equally entitled and as equally bound as those who did subscribe. Ireland has not made the required declaration. Consequently, I do not believe that the judgment in Pupino is binding on this court.

102. Nor do I think that this conclusion is disturbed by the remaining provisions of Art.35. Para.4 states that even without the declaration a Member State may participate in the manner stated, in any case properly before the court. Para.6 gives the court power to review the legality of framework decisions in actions moved by Member States on grounds of lack of competence, and to deal with infringements of an essential procedural requirement, infringements of the Treaty or of any rule of law relating to its application or misuse of powers. Furthermore, under para.7 the court has jurisdiction to rule on any dispute between Member States regarding the interpretation or application of acts mentioned in Art.34(2) if such dispute cannot be resolved by the Council within a specified time. This provision is entirely understandable and could have no possible bearing on the point at issue.

103. With regard to the other matters covered, I cannot see how any of these provisions could affect the clear and decisive structure, as laid down in the Article, by which a Member State signs up for the jurisdiction of the Court of Justice. In particular, I could not accept that the facility for a non-subscribing Member to make written observations on a case properly before the court, can affect or interfere with this conclusion. Such a procedural matter could not displace a substantive signing requirement to submit to jurisdiction. I cannot believe that such can affect the clear and understandable policy of the opt-in/opt-out provisions given the intergovernmental nature of cooperation between Member States in the context of this Pillar and this Title of the Treaty. I think the position is put beyond serious issue by reference once again to Article 46 of the TEU which applies the provisions inter alia of the TEC, concerning the powers of the Court of Justice and the exercise of those powers, to framework decisions, but only subject to Article 35. Consequently, the conclusion stated is one which I feel is justified.

104. It must be immediately noted that in many previous decisions, this Court has adopted the principles in Pupino in a manner suggestive of their binding application. Fennelly J. in Dundon so stated and felt that the absence of the Declaration did not matter. Although Murray C.J. in Altaravicius referred to Pupino, he did not consider it necessary to rely upon Community interpretive tools to resolve the issue in that case. The learned judge did however apply Pupino in much the same manner as in Dundon in the recent case of Minister for Justice, Equality and Law Reform v. Tokarski (Unreported, Supreme Court, 6th December, 2012). Notwithstanding these views however of which of course I deeply respect, I have not been able to identify in any of the reported decisions an argument addressed to the court on this point. It seems to me that the court on such occasions proceeded as if Pupino was binding without argument. Having said that however I would not in any way wish to anticipate what views the other members of the court may have if and when the issue is fully debated.

105. The decision in Pupino pre-dated Lisbon which since 2009 is now in force and therefore the above conclusion must also be viewed in light of that Treaty. Title V of the TFEU is headed “Area of Freedom, Security and Justice”, with Chapter 4 dealing with “Judicial Cooperation In Criminal Matters” and Chapter 5 referring to “Police Cooperation”. Some of the provisions contained in Title VI of the TEU have been carried forward with modifications and others have been replaced. A detailed review of the provisions of Title V is not required. Both Ireland and the United Kingdom have executed a protocol, No.21, in respect thereof. As a result, no provision of, measure adopted, or international agreement concluded under Title V shall be directly binding on this State, nor shall the same form part of Union law for the purposes of applying to this State. Moreover, any interpretive decisions by the Court of Justice arising out of such provisions or measures are equally inapplicable (Art.2 of the Protocol). This situation also applies to any measure taken under its provisions which amend an existing measure to which Ireland is already a signature (Art.4(a)). As can therefore be seen, Title V of Part Three and any act or measure taken thereunder is inapplicable to this jurisdiction under the provisions of Protocol 21.

106. The transitional provisions, of the TFEU are contained, inter alia in Protocol No.36. In the field of police and judicial cooperation in criminal matters the relevant provisions are those of Art.9 and Art.10. The combined affect of these provisions means that, measures previously adopted in this area shall remain until repealed, annulled or amended, and in that regard the powers of the Court of Justice, under Title VI of the TEU, shall remain the same, where they have been accepted and logically where they have not, under Art.35(2) of that Treaty. Finally, in this context, these measures shall cease to have affect 5 years after the entry into force of the Treaty of Lisbon.

107. Notwithstanding this discussion on the effects of the decision in Pupino, I would nonetheless be satisfied to adopt an approach of conforming interpretation to the 2003 Act inter alia on the basis that in common law there exists a presumption that when enacting such domestic legislation the Oireachtas intends to do so in a manner compliant with its international obligations. In such circumstances it is to be presumed that the measure in question gave effect to these obligations. In addition it is also arguable that it may be a general rule of EU law. Whichever, having noted the value and importance of such a rule, I intend to apply it. The question therefore is whether, with the aid of this interpretive approach, there can be implied into the provisions of the 2003 Act, in particular those referable to a surrender hearing, an overall requirement on the High Court to apply a proportionality test of the scope and breadth as above mentioned. In my view, it is not possible to so do. This conclusion results from the express wording of Art.1.2 of the Decision, which applies in furtherance of the mutuality principles which are the very foundation of the instrument itself, together with the express provisions of the Act in the context of execution, which make it clear that unless the mandatory or optional barriers to extradition (Arts.3 and 4; Part 3 of the 2003 Act) can be availed of, the High Court must, if satisfied as to formal matters, make the order as requested. As previously stated, it does not have a residual power of refusal. This is unlike the requesting state which does have a discretion in the issuance of a warrant (Art.2.1). Therefore in my view there is no legal basis to sustain this principle submission in support of the High Court’s views on this issue.

Factors in Consideration:
108. As previously stated, the learned trial judge considered several factors as part of his proportionality assessment. Such matters, by reference to the respondent, included, stress, anxiety, separation from family, friends and locality. All of these are wholly unobjectionable and indeed, by virtue of the exercise required of the High Court, must be taken into account. In addition however, a number of other points were also looked at and were further canvassed in the submissions. Before briefly touching upon the most salient of these, could I make two observations. Firstly, it should be noted that the following discussion is entirely unrelated to the question of weight. At a general level it can be said that, provided an evidential foundation underpinning a matter of relevance is established, particular to the asserted right and its alleged violation, there is no reason in principle why such should be excluded from consideration. In fact the contrary is the position. Secondly it is worth repeating that the mere highlighting of such matters, even those which meet the relevancy test, will almost certainly be of little value to a respondent, unless, by reference to such matters, he can point to some effect or consequence for him. Abstract identification simpliciter, will remain just that.

Question of Delay:
109. May I illustrate the latter point by reference to the question of delay. Delay from one person’s point of view may have little or no impact on Art.8 rights. Another person may reasonably draw encouragement from official inactivity over a passage of time particularly over a prolonged period without justifiable reason. Such a person may legitimately establish closer personal and social ties such as formalising a relationship or taking steps to integrate his community position. Another person for example may reasonably anchor his roots by engaging in a profession or business or by acquiring property. The longer the situation remains dormant the more impact the encouragement may have. There can therefore exist in this regard quite a distinction between both individuals (Lord Bingham: Kosovo: paras.13-16). Even if the period of time or delay is precisely the same, what distinguishes both is to be found in the consequences. Therefore an assertion, without more, will have minimal if any value whereas with significance and consequences it may have much.

110. There are a number of other factors which require some comment. These are, immediate family, “minimum gravity”, seriousness of offence, alternative options, and the “cost and effect” burden on the executing State.

Immediate Family:
111. No authority is required to support the undoubted fact that a material matter is the impact which separation from family might have on the respondent. The trial judge however also took into account the impact which the interference could possibly have on others, who together with the respondent, constitute the unit in respect of which the Art.8 rights are enjoyed. I think he was entitled to do so. Many cases on the immigration side confirm that where members of the family cannot reasonably be expected to join the excluded person, in the third country, their rights are likewise engaged. Evidently, even if such persons did, in an EAW context, they could not continue enjoying the exercise of their existing rights, if incarceration followed. In any event in most situations it would not be practical or reasonable to expect family members to follow. One way or the other, I believe that in principle, their rights under Art.8 are also engaged.

Minimum Gravity/De Minimus:
112. Peart J., in his judgment on the 19th March, 2010, when dealing with the first EAW involving Mr Ostrowski, left aside the argument that surrender could be refused if the alleged offence was such, that the de minimus rule, or a principle akin to it, could apply. The same suggestion was rejected by the trial judge in this case who nonetheless concluded that, the imposition of a custodial sentence upon conviction, was inherently unlikely. “Some weight” could be given to this matter which should therefore be taken “into account”, as part of the overall “circumstances of the case”.

113. It is important to note the structure of the 2003 Act and where the qualifying condition of “minimum gravity” fits into it. The Act insofar as it involves the High Court as executing judicial authority, sets out a number of conditions which must be satisfied before any consideration becomes necessary, of either the mandatory or optional prohibitions, on making a surrender order. This is subject to one exception which I will mention in a moment. Section 10 is a general provision in this regard in that, where subparas.(a), (b), (c), and (d) of subs.(1), have been addressed, the requested 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. Another important provision is section 13, which provides for the endorsement of the warrant for execution by the High Court, once satisfied that the provisions of the Act have been complied with.

114. Many matters of significance must therefore be satisfied by reference to these statutory requirements. I mention some only:

      (1) the form of the EAW shall, where practicable, replicate that set out in the Annex to the Framework Decision;

      (2) the content of such EAW must (i) specify the offence in question together with a description of its nature and its classification under the laws of the issuing State, (ii) include information that there exists in that State a conviction, sentence, or detention order which is immediately enforceable, or that a domestic warrant or similar order (the antecedent order), in respect of the offences and the offender or suspected offender has issued, and (iii) set out the circumstances in which the offence was committed with a description of that person’s involvement, the penalties available either before conviction or post conviction but whilst awaiting sentence, or if applicable, the period yet to be served (s.11); and

      (3) the required documents and any undertaking necessary to accompany such documents, as referred to in s.12, must be transmitted to and deemed acceptable by this State.

115. The High Court on a s.16 hearing, may consider making a surrender order on being satisfied as to certain matters, including the fact that the warrant has been endorsed for execution under section 13 of the Act. Another matter, amongst the several so prescribed, relates to the offence: has correspondence been established (if required) and depending on whether it is an Art.2(1) or Art.2(2) offence, what is the minimum sentence available in the issuing State. Accordingly as can be seen, all of these requirements will have been addressed, at some point in the process overall, before any consideration is necessary regarding the statutory bars to surrender.

116. All such requirements including that last mentioned, have been laid down by statute in conjunction with and to reflect the Framework Decision. A critical feature of that Decision is the provision which determines the type of offence in respect of which an EAW may issue and thus may be executed. For whatever reasons, each Member State and all collectively, have agreed that such should be determined by reference to Art.2 of the Decision. Disregarding the double criminality point, it is clear that a critical yard stick is the maximum sentence available in the issuing State for the offence the subject matter of the warrant. It may be that any one of several alternative criteria could have been used in this regard, and if the drafts and the “Travaux Preparatoires” were consulted, I am sure that such would be verified, but as a matter of both fact and law, the ultimate preference was for that as contained in Art.2. Therefore, once the threshold specified has been met, that conclusively determines the issue of “minimum gravity”. At such point, the assessment of this requirement is at an end. If not satisfied, the warrant will be outside the scope of Art.2, and s.38 of the 2003 Act which reflects it, and the affected person must be discharged. If on the other hand due compliance has been established, then that condition does not fall for any further consideration during a s.16 hearing.

117. The prohibitions which I refer to (para.113 supra) are those contained in Part 3 of the 2003 Act, ss.37-46 inclusive. As can be seen, all, subject to one exception, are referable, in varying degrees, to the offence or the offender in question. For example, a person shall not be surrendered if he is pardoned or otherwise immune from prosecution (s.39), or where he has or might be prosecuted in this State (s.42), or where, by reason of age, he cannot be prosecuted (s.43). For these provisions to have any applicability, they must be individualised to the subject person. Accordingly, in the absence of such application, there will be general requirement to consider these matters. Indeed, precisely the same applies to the provisions of s.37, which the respondent has invoked in the instant case.

118. The one exception however, is that contained in s.38. That section reads:

      “38 - (1) Subject to subsection (2) a person shall not be surrendered to an issuing state under this Act in respect of an offence unless –

      (a) the offence corresponds to an offence under the law of the State, and—

      (i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or

      (ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment,


      (b) the offence is an offence to which paragraph 2 of Art. 2 of the Framework Decision applies and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than three years.”

This must be read in conjunction with s.11 of the 2003 Act which refers to the form and content of the EAW, as required by that section and by Art.2 of the Framework Decision.

119. As can therefore be seen, an EAW may issue firstly, in respect of corresponding offences (acts) where the issuing State has prescribed a custodial sentence or a detention order for a maximum period of at least 12 months or where a sentence of at least four months has been imposed and secondly, for those offences specified by description in Art.2.2 of the Framework Decision in respect of which the issuing State has prescribed a custodial sentence or detention order for a maximum period of at least three years. In respect of the offences last mentioned the normal requirement of establishing double criminality has been waved. As part of its obligation to examine the documentation relied upon and given the centrality of the point, the High Court must consider, as a matter of routine, whether the offence specified is one within the scope of an EAW as set out in Art.2. Therefore, even though such a requirement is contained in Part 3 of the Act, in reality and as a matter of practice, it will always be considered, in the same way and as part of the same exercise as the other matters above mentioned or referred to.

120. By reference to s.11 of the 2003 Act, the EAW issued in this case is in accordance with the Annex to the Framework Decision. At para.(e) the single offence in respect of which surrender is sought merits this description “on the 11th May, 2006 in Wroclaw acting in violation of the law, he was in possession of psychotropic agents in the form of marijuana – 0.725 grams of the net weight”. Immediately following appears the legal classification of the offence, the statutory provision offended and the maximum penalty, being one of up to 3 years in prison: therefore the offence ex facie clearly comes within the scope of qualifying offences. Having satisfied itself as to this requirement, and others depending on circumstances, the court then, but only then, looks at the particular grounds which prohibit the making of a surrender order. Those mentioned in the Framework Decision (Arts.3 and 4) are all, as I have said, reflected in primary legislation (part 3 of the 2003 Act). To engage with such rights an affected must raise them. In this case, the respondent has raised s.37 of the 2003 Act. That issue must of course be determined but at such point minimum gravity will have been established. Further reference to it is neither required nor permitted.

Seriousness of Offence:
121. This point last discussed is of course quite distinct from the issue of the “seriousness” of a qualifying offence, which in my view is a relevant matter on a s.16 hearing. As pointed out earlier (para.56) the type or nature of the offence, or more accurately its seriousness, may be an ingredient in the assessment of the community’s interest in the extradition process. Evidently therefore it follows that at the level of principle it may feature in the balancing exercise which the High Court judge is called upon to conduct on a s.16 hearing. At paras.50-63 above, I have set out how such should be measured; as stated, the graver the crime, the graver the interest. However even in respect of offences which the executing state may consider unimportant or minor, the community will always have an interest in upholding the process. Consequently, the designation of offences, even as trivial, will not normally outweigh that interest. If however there are other matters which a respondent can point to, such as for example delay, the same may give rise to an inference that the public interest in pursuing one’s extradition is at the lower scale. Where however such other factors are present, either in themselves or cumulatively, the same must be assessed like all other matters, by the High Court.

Likely Sentence:
122. The appellant submits that the trial judge was incorrect, as a matter of law, in speculating what likely sentence the respondent may receive on conviction if that be the case. The response on behalf of Mr Ostrowski is that such a matter played a minimal part only in the judge’s deliberations.

123. It appears from the judgment, when dealing with the de minimus submission, that the learned judge was quite emphatic about his view of the offence: he said “… this Court would not wish the message to go out that it considers possession of prohibited drugs to be a minor, petty or trivial matter, even if the quantity is small and it was only for personal consumption. It is not be so regarded”. In my opinion, as the seriousness of an offence is a relevant matter, the learned judge was perfectly entitled to make this observation. However, it is quite a different point to consider what likely sentence may be imposed on the returned person. Subject to G.P.S. v. C¸ where such consideration was permitted under domestic law and where there was an evidential basis for the court’s consideration of that point, it seems to me that such is clearly not permitted under the 2003 Act. In addition to respecting mutual trust, cooperation, and confidence and disregarding any question of minimum gravity, that issue in my view becomes purely a matter of law for the courts of the requesting jurisdiction. If it was otherwise it would in effect mean the executing authority second guessing the conclusion of a process which most likely, at both a substantive and procedural level, it could know little about, whereas the domestic court would be acutely familiar with it. Whilst the surrounding circumstances of the subject offence in this case seems straightforward, nonetheless, many EAWs are issued in respect of multiple offences with complex and at times grave circumstances surrounding their commission. The EAW itself is not designed to provide for such information and whilst s.20 of the 2003 Act is a potential source of information in that regard, its provisions are not intended to satisfy this use. Aggravating and mitigating circumstances are largely unknown as would be any impact on the victim.

124. In addition however, at least at the level of principle, there is a fundamental difficulty about speculating on likely sentence as distinct from having a view on “severity of offence”. As we know, in this jurisdiction, sentences within the entire available range have been passed on individuals convicted of the most serious crimes, including those against person and property. If therefore, one followed the logic of this approach, all individuals, notwithstanding being charged with the gravest of offences, could urge that because of their personal situation and the particular circumstances in which the crime was committed, their likely sentence would be at the lowest end of the scale. That simply cannot be the case.. Therefore, at both the level of principle and at a practical level, I do not accept that such is a valid consideration.

Alternative Means:
125. The failure of the Polish authorities to forewarn by letter the respondent of its intention to issue a second EAW, or to invite his voluntary surrender to face the subject charge were also matters considered by the judge. Whilst in principle one can say that such may possibly be relevant factors, it is difficult to conceive of a situation, compatible with the functioning essentials of the EAW process, save in the most improbable circumstances, where the failure of the requesting authority to adopt either suggestion could have any value.

Application of the above to this Case:
126. By reference to the summary of the background outlined at para.7 supra, it seems to me that the facts in this case do not demonstrate the likely existence of harmful consequences, peculiar to the respondent, which are of such significance as to outweigh the public interest in ordering his return. The matters identified by him are all comfortable within the expected consequences which might flow from and which are inherent to the operation of the process itself. He is not a person dependent on others in any legally meaningful sense, and likewise others are not so dependent on him. There are no children or other family members who will, again in such a sense, suffer because of his return. Whilst the delay in the execution of the 2nd EAW is a relevant factor, that in itself however, is not sufficient to tip the scales in his favour. I should add however that undue delay in execution, without explanation as in this case, is a matter that should be kept under review.

127. Overall however, I would therefore conclude in saying that a s.16 order should issue.

128. Finally, I would answer the re-phrased certified question by stating that when the High Court, as executing judicial authority, is called upon to apply the principle of proportionality it should do so in accordance with the Heaney jurisprudence having due regard to the Strasbourg case law where appropriate. I would further state that matters such as the likely sentence which the affected person might receive on conviction and the cost and burden on the State in executing the EAW, are not appropriate for consideration.
Judgment of Mr. Justice John MacMenamin delivered the 15th day of May, 2013.

1. I agree with the judgment of the Chief Justice. I would express my specific agreement with the observations at paragraph 20 of her judgment when she states:

        “The certified question makes the assumption that an issuing judicial authority when deciding whether to issue an EAW considers proportionality. That is a matter for an issuing State and does not arise for consideration in this case”.
To this, the Chief Justice added however:
        “From experience I would not assume that in every Member State an issuing judicial authority considers whether it is proportionate to issue an EAW. However that is a matter for another forum”.
2. As matters stand, this Court constrained is act in accordance with the Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States adopted on the 13th June 2002 (“the Framework Decision”). The Framework Decision envisages a general mandatory execution of European Arrest Warrants. The Framework Decision itself provides:
        “Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision”.
The Framework Decision was embodied in statutory form by the European Arrest Warrant Act 2003, which similarly imposes a mandatory duty on this court.

3. I would, nonetheless, wish to express my sympathy with some of the sentiments expressed in McKechnie J.’s judgment. A simple consideration of the facts demonstrates how, apparently, the principle of compulsory prosecution can bring about outcomes, which surely require consideration in the “different forum” referred to by the Chief Justice in her judgment.

4. At the time of the alleged offence, the 11th May, 2006, the respondent had been living in Ireland for approximately two years. He went back to visit Poland on holidays. On the 27th November, 2006, the domestic order underlying the European Arrest Warrant was issued by the District Court in Poland. More than two years later, the first European Arrest Warrant was issued by that District Court. That was on the 7th January, 2009. On the 22nd April, 2009, three years later, the first European Arrest Warrant was endorsed by the High Court in Ireland. On the 19th October, 2009, the respondent was arrested and detained overnight in Henry Street Garda Station in Limerick on foot of that warrant. He was brought to the High Court and admitted to bail. Thereafter, additional information was received from the Polish authorities confirming errors in the first European Arrest Warrant. These were corrected by a Polish court ruling on the 29th January, 2010. On the 19th March, 2010, the High Court (Peart J.) delivered a judgment nonetheless refusing to surrender the respondent.

5. The process began again. On the 28th April, 2010, the second European Arrest Warrant was endorsed by the High Court. On the 4th July, 2011, by then five years after the alleged offence, the respondent was arrested on foot of the second European Arrest Warrant. The hearing before the High Court (Edwards J.) took place on the 8th December, 2011. On the 8th February, 2012, that court delivered judgment, refusing to surrender the respondent although the point of law in question was certified for this court. The alleged offence in question was the possession of 0.72 grams of marijuana. In all this, I raise the question, are the legal means and processes which have been deployed here in the prosecution of this quite trivial matter proportionate to, and reflective of, the objectives of the Framework Decision? The prosecution of this respondent for possession of a small quantity of marijuana is now to take place in Poland at least seven years after the event. This will take place after numerous hearings in the Polish District Court, two hearings in our High Court, and the hearing and consideration of this appeal. Very substantial sums of taxpayer’s money have been expended on this minor matter.

6. In paragraph 71 of his judgment McKechnie J. identifies other instances elsewhere where the European Arrest Warrant process has apparently been used in the case of offences of a very minor nature. If the absence of a proportionality test in applying states is not addressed by those charged with the monitoring the operation of the EAW procedures, one can envisage that, in some member states, questions may arise as to whether the “apparent absence” of a proportionality test on the part of surrendering states can be in accordance with fundamental rights whether identified under that Member State’s own Constitution or under EU fundamental rights law.

7. Unless this issue of concern is addressed, there must surely be a risk that the law, as is applied in Member States, may develop in a manner unintended by those who drafted, and who must monitor the operation of the Framework Decision.

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