Minister for Justice v Singh (Approved)

Factual and Procedural Background

The Applicant, the Minister for Justice, seeks an order for the surrender of the Respondent to the Republic of Italy pursuant to a European Arrest Warrant (EAW) dated 17 July 2023. The EAW was issued by a Judge for Preliminary Investigations of the Court of Bergamo for prosecution related to three offences carrying a maximum penalty of 14 years' imprisonment. The Respondent was arrested on 23 October 2023 following a Schengen Information System II alert and brought before the High Court on the same date. The Court was satisfied that the Respondent is the person named in the EAW, and that none of the statutory bars to surrender apply. The offences for which surrender is sought include causing grievous bodily harm, breaching firearm possession prohibitions, and carrying a weapon in a public place, all certified as serious offences under the Framework Decision.

The Respondent objected to surrender on two grounds: (i) that no decision to prosecute him has been made, thus surrender is prohibited under section 21A of the European Arrest Warrant Act 2003 (the 2003 Act); and (ii) that as an international protection applicant, he cannot be surrendered until a decision has been made regarding his protection application.

Legal Issues Presented

1. Whether the Respondent’s surrender is barred under section 21A of the 2003 Act due to the alleged absence of a decision to charge and try him in the issuing state at the time the EAW was issued.
2. Whether the Respondent’s status as an international protection applicant prevents his surrender pending determination of his protection application.

Arguments of the Parties

Respondent's Arguments

• The Respondent contends that no formal decision to prosecute him has been made in Italy, supported by affidavits from an Italian lawyer explaining that under Italian law, a decision to charge and try can only be made after a preliminary hearing, which has not yet occurred.
• He argues that his status as an international protection applicant entitles him to remain in the State until a decision on his application is made, and thus surrender should be deferred.
• The Respondent relies on previous cases where surrender to Italy was refused under section 21A for lack of a decision to charge and try.

Applicant's Arguments

• The Applicant submits that the facts in this case differ from previous refusals, as the issuing judicial authority has expressly confirmed the intention to charge and try the Respondent at the time the EAW was issued.
• The Applicant emphasizes the presumption under section 21A(2) of the 2003 Act that a decision to charge and try has been made unless rebutted by cogent evidence, which is absent here.
• Regarding the Respondent’s international protection status, the Applicant relies on domestic and EU law, as well as prior judicial authority, to argue that such status does not bar surrender, provided safeguards against refoulement and access to asylum procedures are maintained.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the objection under section 21A of the 2003 Act, which requires refusal of surrender if no decision to charge and try the person has been made in the issuing state. The Court noted the presumption in section 21A(2) that such a decision exists unless disproved by cogent evidence. The Respondent’s expert evidence explained that under Italian law a formal decision cannot be made until after a preliminary hearing; however, the issuing judicial authority explicitly confirmed that there was an intention to charge and try the Respondent at the time the EAW was issued, and that sufficient evidence existed to support this intention.

The Court relied on precedents, particularly Olsson and Campbell, which held that intention to prosecute is sufficient to satisfy the statutory requirement of a decision to charge and try. The Court found no evidence to rebut the presumption, nor that the EAW was issued merely for investigatory purposes. The Court distinguished this case from prior cases where surrender was refused due to lack of intention at the time of the EAW.

Regarding the Respondent’s status as an international protection applicant, the Court referred to domestic legislation and EU directives, noting that international law does not prohibit surrender of such applicants provided safeguards against refoulement and access to asylum procedures are ensured. The Court accepted that no domestic provision bars surrender on this ground and that appropriate safeguards are available.

Accordingly, the Court rejected both grounds of objection, concluding that the statutory and procedural requirements for surrender under the EAW were met.

Holding and Implications

The Court ordered the surrender of the Respondent to the Republic of Italy pursuant to the European Arrest Warrant.

The direct effect of this decision is that the Respondent will be surrendered for prosecution in Italy. The Court did not set any new precedent but reaffirmed the established legal principles regarding the interpretation of section 21A of the 2003 Act and the treatment of international protection applicants in the context of surrender proceedings. The ruling underscores the importance of the presumption of intention to prosecute embedded in the European Arrest Warrant framework and confirms that procedural formalities in the issuing state do not negate this presumption where intention is clearly expressed.