Shahzad v The Governor of Mountjoy Prison (Approved)

Factual and Procedural Background

This case concerns extradition between Ireland and the United Kingdom pursuant to the European Arrest Warrant Framework Decision 2002/584/JHA ("the Framework Decision") and its transposition into Irish law by the European Arrest Warrant Act 2003 ("the EAW Act of 2003"). The issue arose in the context of the UK's withdrawal from the European Union under the Withdrawal Agreement, specifically Article 62.1(b) which addresses the applicability of the Framework Decision during and after the transition period ending 31 December 2020.

The Applicant is subject to a European arrest warrant dated 20 March 2020 issued by a UK judicial authority seeking his surrender to serve an eight-year sentence for conspiracy to defraud. The High Court endorsed the warrant and ordered the Applicant’s surrender and detention pending surrender. The legality of the detention and surrender order was challenged under Article 40.4.2° of the Irish Constitution.

Legal Issues Presented

1. Whether the constitutional remedy under Article 40.4.2° is available to the Applicant to challenge his detention and surrender order.
2. Whether Article 62.1(b) of the Withdrawal Agreement falls within the exclusive competence of the European Union under Article 50 TEU such that its provisions are binding on and applicable to Ireland, notwithstanding Protocol No. 21 which exempts Ireland from certain EU measures in the area of freedom, security, and justice unless opted into.

Arguments of the Parties

Applicant's Arguments

• The High Court lacked power to order surrender and detention because its authority derived from Article 62.1(b) of the Withdrawal Agreement, which the Applicant contends is subject to Protocol No. 21 and thus not binding or applicable to Ireland without its consent.
• The European Council erred in adopting Article 62.1(b) under Article 50 TEU instead of Article 82 TFEU, which governs judicial cooperation in criminal matters and to which the Protocol applies.
• Consequently, the statutory instrument (S.I. No. 719 of 2020) designating the UK for the purposes of the EAW Act 2003 is ultra vires, rendering the surrender order legally ineffective.
• The Applicant contends that the constitutional remedy under Article 40.4.2° is appropriate despite procedural rules because the alleged flaw is systemic and fundamental.

Respondent's Arguments

• The application is an impermissible collateral attack on the surrender order, as the Applicant failed to raise this point in the original s.16 proceedings or seek a certificate to appeal.
• The Protocol does not apply to the Withdrawal Agreement because it was concluded pursuant to Article 50 TEU, which grants the EU exceptional and exclusive competence to negotiate and conclude such agreements with departing Member States.
• The surrender and detention orders are lawful and valid, supported by domestic legislation implementing the Withdrawal Agreement.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed the procedural issue of whether the Applicant’s constitutional challenge was permissible given the prior surrender proceedings. While the general rule prohibits raising points not previously advanced, the Court found the issue to be a systemic fundamental flaw affecting all extradition cases under Article 62.1(b) of the Withdrawal Agreement and thus allowed the challenge as an exception.

The Court then analyzed the legal basis of Article 62.1(b) of the Withdrawal Agreement, which provides for the continued application of the European Arrest Warrant Framework Decision for persons arrested before the end of the transition period. The Applicant argued that this provision should have been adopted under Article 82 TFEU (judicial cooperation in criminal matters) and thus is subject to Protocol No. 21, which Ireland has not opted into.

The Court examined the Withdrawal Agreement’s nature and purpose, emphasizing that it was negotiated and concluded pursuant to Article 50 TEU, which confers an exceptional, all-encompassing competence on the Union to conclude an agreement settling all matters necessary for the orderly withdrawal of a Member State. This competence extends to all issues arising from disentanglement and future relations.

Applying established EU law principles on choice of legal basis, the Court found no error in adopting the Withdrawal Agreement under Article 50 TEU. Article 62.1(b) is a separation provision incidental to the main objective of orderly withdrawal and thus properly falls within the scope of Article 50 TEU. The Protocol does not apply to the Withdrawal Agreement because it was not adopted pursuant to Title V of Part Three TFEU (the area of freedom, security, and justice).

The Court concluded that Article 62.1(b) is binding on and applicable to Ireland, and accordingly, the domestic legislation (including S.I. No. 719 of 2020 and s.98(1) of the Act of 2019) implementing the Withdrawal Agreement is valid. Therefore, the High Court’s surrender and detention orders are lawful.

Holding and Implications

The Court refused the relief sought by the Applicant and declared that the detention and surrender orders made by the High Court are lawful and valid.

The direct effect of this decision is that extradition proceedings under Article 62.1(b) of the Withdrawal Agreement may continue in accordance with the Framework Decision and the EAW Act 2003 as applied to the UK post-withdrawal. No new precedent was set regarding the interpretation of EU law beyond the specific context of the Withdrawal Agreement’s legal basis and its applicability to Ireland notwithstanding Protocol No. 21. The ruling confirms the validity of Ireland’s implementation of the Withdrawal Agreement provisions relating to the surrender of persons arrested before the end of the transition period.