1. Thomas Casey
09006084
European Arrest Warrant Project
What does Irish jurisprudence tell us about the operation of mutual recognition more
generally; also consider what it augurs for the more recent Directives scheduled to become
law in near future?

2. Introduction
In the past decade it has become clear that the European Arrest Warrant has become an
integral part of the criminal justice structure of the European Union. The main objective of
the European Arrest Warrant is to increase efficiency in the extradition process, by the
accelerated rendition of those wanted by a particular EU member state for those persons who
are either convicted or suspected of committing a crime1.
This assignment will be divided into two parts. The first part will examine the historical
development of the European Arrest Warrant with particular reference to the development of
mutual recognition between member states. Secondly it will examine how it has been adopted
into Irish Law in the European Arrest Warrant Act in order to examine how the courts
approach the concept of mutual recognition.
The second part will then provide an analysis of recent developments in the European Arrest
Warrant in Ireland with reference to case law and the approach that is taken toward the new
directives soon to become Irish Law.
What is the difference between extradition and rendition?
The concept of extradition is a legal mechanism which a State uses to recover a wanted
individual from another nation state. The outcome of the extradition process is the rendition
of a person against his or her own will by one state to another through certain legal
formalities2.
However this process can be considered to be a time consuming, complicated process, given
the differences between various legal systems. The idea that, the obligation for one state to
hand over a fugitive, who may be a citizen of the same state, can have the problem of
damaging state sovereignty. Traditionally the notion of extradition can be seen to be an
executive function of government rather than a judicial function. The practice of extradition
has its roots in the idea of territorial jurisdiction, where a State could prosecute or imprison a
fugitive who had committed a crime in the territory of another State since the courts of the
State where the fugitive was residing did not have jurisdiction over his conduct3.
In the Irish Context, the 1965 Extradition Act requires the Minister for Justice and Law
Reform to certify an extradition request before it is presented to the High Court, who will
then issue an arrest warrant. The manner in which the Irish courts operate in matters related
to extradition is not a source of tension between the executive and judicial branches who
work closely with each other to examine these extradition requests4. The government of the
requesting state issues a formal request for help to the government of the other State, in the
form of a demand for extradition. When received by the requested state, this passed to the
1 Remy Farrell,Anthony Hanrahan ‘The European Arrest Warrantin Ireland’ (2011) Dublin ClariusPress
2 M. Cherif Bassionuni ‘Unlawful Seizures and IrregularRendition Devices as Alternatives to extradition’7
Vand. J. Transnational Law25 1973-1974.
3 Arvinder Sambei, John R.W.D. Jones ‘Extradition Law Handbook’ Oxford, Oxford University Press.
4 Farrell and Hanrahan (2011),p34

3. courts, which traditionally ask to see not only the requesting state’s warrant for arrest, but
also the evidence on which it was based. Then, provided the Courts are satisfied that (i) there
is a prima facie case, and (ii) that the offence is one of those covered by the extradition treaty
between the two countries and (iii) it is one for which they would punish the offence, had it
been committed in the issuing state. There must be a corresponding offence in the executing
judicial authority, this is known as the concept of double criminality. Where the courts are
satisfied that the above criteria are met, they will make an order for extradition5. However the
system of extradition has been criticised for being slow and inefficient due to requests from
the judiciary for further information or clarification and due to the need to obtain translations
or legal advice. There are also issues with regard to the concept of double criminality where
the Irish Courts have had to seek further information in order to determine whether or not the
said offence would also be classified as a crime in the Irish Jurisdiction.
In contrast to extradition, the concept of rendition is one where there is no formal treaty in
place but where there are arrangements in place between states for the handing over of
fugitives6. Rendition techniques can vary from the use of immigration statute laws as a device
to directly or indirectly surrender a person or to place him in a position where he can be taken
by another member state7. Rendition is primarily based on the principle of mutual
recognition, which is recognised as a fundamental principle undermining cooperation in civil
and criminal matters between different Nation States who share common political, cultural
and legal interests such as the European Union. The principle of recognition presumes that
judgements are to be recognised and enforced comply with the principles of legality,
subsidiarity and proportionality8.
This essay will now go on to examine how the concept of mutual recognition has affected
Justice and Home Affairs within the European Union which has led to the development of the
European Arrest Warrant.
Mutual recognition in the European Union
From the late 1990s following the Maastrict treaty, member states of the European Union
began to intensify policies of integration in the areas of Justice and Home Affairs,
particularly the areas of immigration, police and judicial cooperation and extradition.
The ability to travel freely within the union brings with it an ability to commit criminal
offences in various member states. The removal of border controls following the Single
European Act 1986 resulted in a need to address serious issues related to international
criminal and terrorist activity through creating closer cooperation between law enforcement
5 J.R Spencer ‘The European Arrest Warrant’< www.eurowarrant.net> (accessed 25/2014)
6 Arvinfer Sambei, John R.W.D Jones ‘Extradition lawhand book
7 M. Cherif Bassionuni ‘Unlawful Seizures and IrregularRendition Devices as Alternatives to extradition’7
Vand. J. Transnational Law25 1973-1974.
8 Gay Mitchell MEP ‘Asset Confiscation asan Instrumentto Deprive Criminal Organisations of the Proceeds of
Crime: Thematic paper of Organised Crime’(2012) ‘Special Committee on Organised Crime, Corruption and
Money Laundering’. P5.

4. and judicial agencies. These matters where incorporated into the Third Pillar of the
Maastricht Treaty and revised by the Amsterdam treaty. As a result of the third pillar
European States authorised the creation for EURPOL, a European police agency to facilitate
the apprehension of trans-border criminals and individuals that pose a threat to society. In
December 1999 15 members of the European Council met in Tampere, Finland to debate the
Commission proposals to create an area of freedom, security and justice within the EU. This
newly inaugurated Council of Interior and Junior Ministers concluded by calling on all
member states to make the ‘principle of mutual recognition the cornerstone of a European
law enforcement area. Subsequently the council began to initiate a draft framework decision
which would revoke the existing extradition arrangements between Member States9. This was
done by ‘requiring each national judicial authority (the executing authority) to recognise,
with the minimum formalities, requests for the surrender of a person made by the judicial
authority of another member state (the issuing authority)’10. With the implementation of this
principle of mutual recognition, it removes a major obstacle to cross border law enforcement
in Europe, namely the different national standards with regard to criminal procedure no
longer obstructing judicial cooperation between member states.
Lavenex notes the several benefits of mutual recognition to be, that it promotes the free
movement of judgements and judicial decisions. Particularly within criminal law, European
Member States have begun to recognise final judicial decisions of other member states in
relation to issues such as asylum or rendition. In essence the benefits of mutual recognition
are not individuals but rather state actors. As a result of the application of the mutual
recognition in the areas of Justice and Home Affairs, judicial decisions can be made much
more quickly and with greater certainty. However one major drawback that comes with the
principle of mutual recognition is that the discretion of the courts of an individual member
state is greatly reduced and so are the grounds for refusal11.
The creation of the European Arrest Warrant
Following the events of September 11th the Council Framework Decision of 2002 adopted the
conclusions of the Tampere meeting by catering for the creation of an area of ‘freedom
security and justice’. In light of the 9/11 attacks and as part of the context of combatting
crime at a transnational level and also in the context of the free movement of citizens within
the EU. Article 32 of the Framework Decision provides for a system of simplified extradition
in order to combat terrorism and serious crime12.
The main aim of the framework decision of 2002 is to ensure that the process of extradition
within the European Union is simplified. This is done by applying the concept of mutual
recognition to all aspects of European Law Enforcement, in particular extradition. In order to
simplify this process some of the features of the framework decision are to remove or
9 Ian Bailey ‘Fair or Foul? The European Arrest Warrant‘Justice Sans Frontier?: An instrument for use open to
abuse [2012] COLR p2
10 ibid
11 Sandra,Lavenex, (2007) 'Mutual recognition and the monopoly of force: limits of the singlemarket analogy',
Journal of European Public Policy,14:5,p 762 - 779
12 Farrell and Hanharan (2011),35.

5. simplify some of the basic procedures relating to extradition. These include removing the
need to verify double criminality in certain cases with certain serious offences being listed in
Article 2(2) of the Framework Decision that are punishable by three years detention in the
issuing state13. It also abolishes the right of states not to extradite their own citizens who are
wanted for offences in other member states. Addition Article 34(2) (b) of the Treaty of the
European Union provides that the use of the Framework decision is not directly effective but
sets out what domestic statutes must be implemented where the Member States see fit14. In
the European Court of Justice Case of Puipino15 that this principle of interpretation is binding
to applying the framework decision to national law. Member states must do so in light of the
wording of the purpose of the framework decision.
The creation of the European Arrest Warrant (EAW) can be considered to be the first major
initiative concerning mutual recognition in European Law Enforcement. The EAW is 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 criminal prosecution, investigation or
executing a custodial prosecution16. Unlike traditional extradition which is seen as a
diplomatic process rather than a judicial one, the role of the executive has been significantly
reduced to a role of providing administrative assistance and support. Farrell notes that a
European Arrest Warrant will have its origins in issuing a domestic warrant. Once this
warrant has been issued and it becomes apparent that the individual is no longer resident in
the particular member state, the prosecuting authorities in the requesting state will apply to
the appropriate judicial authority for a European Arrest Warrant17. Offences are listed under
Article 2 (2) were punishable by at least three years detention in the issuing state could be the
subject of an EAW irrespective of whether an offences exists in the state which much execute
the warrant. These include participation in a criminal organisation, terrorism,
possession/trafficking of narcotics and psychotropic substances, rape, murder/manslaughter,
armed robbery, fraud and escape from lawful custody18.
Article 3 of the Framework provides for certain grounds on which the state should not
execute an EAW19. These circumstances include where the offence is covered by amnesty in
the executing state where the state can prosecute the offences in question under its own
national law. Secondly a warrant may not be executed when the executing state has been
informed that the person has been sentenced and where the sentence has been served, the
warrant is no longer valid. Thirdly the person for whom the warrant is allocated must be
above the age of criminal responsibility for the act in which the warrant has been based on20.
Edwards notes that one of the main features of the European Arrest Warrant System is that it
favours a system of rendition rather than pre-existing conditions of extradition. The power of
13 Craigand de Burca ‘EU Law, Texts, Cases and Materials,(2011),New York, Oxford University Press
14 Fennelley (2006), p21
15 CaseC-105.03 Pupino[2005] ECR 1-05285
16 Craigand De Burca EU LAW p349
17 Farrell and Hanrahan p 26.
18 Article2 Framework Decision 2002/584/JHA
19 Craigand De Burca.2011, p349
20 Article3 framework decision 2002/584/JHA

6. determining the validity of Arrest Warrants lies in the judicial authority of the state21. Farrell
and Hanrahan note that the framework decision seeks to ‘cut out the middleman in the form of
the executive and remove decisions in relation to surrender and extradition from a political
and diplomatic context to a judicial context’22.Hence, the European Arrest Warrant contains
all of the necessary information required in one standardised document which includes the
original domestic warrant or committal order, a detailed statement of the offence, a copy of
the relevant legalisation, a description of the person and various certificates authenticating
each of the various documents23.
As of 2013, there have been a number of proposals to amend the European Arrest Warrants in
order to strengthen certain aspects of the presumption of innocence and the right to be present
at trial in criminal proceedings. Three measures have been adopted Directive 2010/64/EU24
on the right to interpretation and translation in criminal proceedings, Directive 2012/12/EU25
on the right to information and criminal proceedings and Directive 2013/48/EU26 on
European Arrest Warrant Proceedings and on the right to have a third party informed upon
the deprivation of liberty and to communicate with the third person and consular authorities
while deprived of liberty. These measures have been introduced in order to protect the
individual rights of citizens with regard to the right to a fair trial. It has been noted that to a
certain extent the European Arrest Warrant has impacted on the presumption of innocence
and efforts are being made to rectify this situation. Among other efforts to intensify the nature
of European Criminal Justice is the proposed establishment of a European Public Prosecutors
Office which aims to improve the various aspects of mutual recognition among member
states27.
The European Arrest Warrant in Ireland
As a general rule, the issuing authority transmits an EAW directly to the executing judicial
authority. Where EAWs have been issued against individuals, member states of the EAW
must take the necessary coercive measures with regard to locating and arresting the said
individuals. Following arrest the individual is made aware of the nature of the EAW. The
individual is invited the challenge the nature of the EAW through the Courts28.
21 Edwards J. European Arrest Warrant: Ten Years on, Some Personal Reflections.(2014) <
https://sulis.ul.ie/access/content/group/de3e96b2-7743-4f17-9955-
3e32a66e72d9/Edwards%20Lecture%20UL%201%20april.pdf
22 Remy and Farrell (2011) p140.
23 ibid
24 20 October 2010 of the European Parliamentand Council
25 22 May 2012 EU Parliamentand Council,
26 22 October 2013 European Parliamentand Council
27 European Commission ‘Proposal for a Directiveof the European Pariment and of the Council on the
strengthing of certain asects of the presumption of innocence and of the right to be present attrial in criminal
proceedings’ (2013/0407 (COD) Brussells17/11/2013.
28 Europa: Summaries of EU Leglisation ‘European Arrest Warrant’<
http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_cri
minal_matters/l33167_en.htm> (accessed 17 April 2014)

7. In Ireland in order to give effect to the framework decision and adopt the EAW system,
Ireland created the European Arrest Warrant Act (EWA) 2003, which came into effect in
2004. This act gives effect to the Council Framework Decision of 2002 on the European
Arrest Warrant and the surrender procedures between member states of the European Union.
The EWA act 2003 sets out the process in which European Arrest Warrants are received,
endorsed and enforced. The Act appoints the Minister for Justice, Equality and Law Reform
as the Central Authority for receiving EAWs from member states, with the assistance of the
Mutual Assistance and Extradition Division of the Department of Justice its main functions
include, seeking further information where required from the issuing authority, to apply to the
High Court for the endorsement of a EAW for execution. Following the receipt of the EAW
the Central authority forwards it to the Chief State Solicitors Office who makes an
application to the High Court for endorsement. Following endorsement, the warrant is then
sent to the Garda Síochana for execution who must bring the person before the court at the
nearest possible date29.
Following the appearance of the individual before the High Court, the person is either
remanded in custody or granted bail at the courts discretion. The surrender proceedings
should commence within 21 days of the date of arrest. If the person does not consent to
surrender, the High Court must order the surrender in compliance with the Provisions of the
EWA Act 2003, in which it has 60 days, which can be extended to 90 days to decide whether
to order the surrender of the person. Where the 90 days are exceeded, the central authority is
obliged to inform Eurojust and the issuing authority and the reasons for the delay30.
Suspects who are order to be surrendered have a right to appeal the surrender which can be
brought if the High Court certifies that the point of law is of public importance.
The effect of the Introduction of European Arrest Warrants on the Irish Extradition
Process
Like a domestic warrant, a European Arrest Warrant is not required to go further that to make
the requested person aware of why they are being arrested. In the case of an EAW, it is
necessary to provide the person with the necessary information as to why surrender is being
sought by the issuing State. As noted by Peart J31, the purpose of the warrant is to
29 Department of Justice, Equality and Law Reform, ‘On the operation of the European Arrest WarrantAct 2003
(as amended) in the year 2012 made to the Houses of the Oireachtas by the Central Authority in the person of
the Minister for Justice and Equality pursuantto section 6(6) of the European Arrest WarrantAct 2003’. (2012)
https://sulis.ul.ie/access/content/group/de3e96b2-7743-4f17-9955-
3e32a66e72d9/Week%206%20Extradition%20and%20the%20European%20Arrest%20Warrant/REPORT%20on
%20EAW%202012%20dept%20justice.pdf (accessed 18 April 2014)
30 ibid
31Minister for Justice, Equality and Law Reform v Dimitrovas 2007 IEHC 26.

8. ‘Ensure that a person arrested has the basic information upon arrest as to the offences to
which he has been sought. It is not a document intended to provide him with every piece of
information which he might wish to have.’
In the decade since the implementation of the European Arrest Warrant in Ireland, the Irish
courts have responded to a large number of technical points and objections. In almost every
case these have been rejected as being without merit. A clear pattern has emerged from the
study of case law of European Arrest Warrants. First, respondents rarely succeed in opposing
extradition and second, where respondents have succeeded the State tends to automatically
appeal the decision to the Supreme Court which then tends to overrule the decision of the
lower court32. Edwards opines the while the use the European Arrest Warrant is without
doubt faster than the traditional approach to extradition through the use of a standard form of
warrant set out in section 10 EWA act, the partial abolition of the requirement to demonstrate
double criminality under Section 41 and the confinement of grounds to challenge surrender
under section 37 of the Act have undoubtedly speeded up the process of extradition in
Ireland33. However there have been several criticisms of the new European Arrest Warrant
system. In Ireland in particular how the systems affects the individual with regard to the right
to a fair trial, the right to presumption of innocence and the right to physical and bodily
integrity. There has been intense debate with regard to determining should the extradition of
suspects to answer for crimes, even minor crimes be allowed.
Since the initial establishment of the European Arrest Warrant system in Ireland over 589
warrants have been received between 2004 and 2011. In this period over 125 persons were
surrendered, over 87 applications were withdrawn, 21 warrants were refused and two
warrants were withdrawn following arrest in another member state34. Edwards notes that
there are several blockages in the EAW system in Ireland. A key reason is that under section
16(10) of the European Arrest Warrant Act 2003 requires the Central Authority to, on
instruction from High Court, notify the issuing State or Eurojust if the High Court has not
ordered the surrender 60 days from the date of arrest of the suspect. While the recommended
time limits for the processing of European Arrest Warrants within 60 to 90 days in the Irish
courts it normally takes up to 120 days to process a request. Edwards notes that this is not
only a resources issue, where there is only one judge assigned to the processing of European
Arrest Warrants and the sheer volume of cases, but there is a need to reserve judgement in
many cases due to the complexity of the issues raised but because of the absence of the
defendants right to appeal. However the main reason in Edwards’s opinion is the different
legal systems of both Ireland and the United Kingdom and the Continental legal systems of
Europe that are the key factor in the delay of European Arrest Warrant Cases35.
32 Ian Bailey ‘Fair or Foul? The European Arrest Warrant‘Justicesans Froniter’:An instrument for use open to
abuse’ [2012] COLR.
33 Edwards J. (2014) p35
34 Department of Justice Equality and Law Reform (2012) p7.
35 Edwards J pp35-45

9. As a result of these delays it has been contested in Dundon v Governor of Cloverhill Prison36
that the delay of the respondent trial to a point outside the 90 day limit had not been met.
Hence council for the respondent requested that he was being held in unlawful custody and
should be released. This was dismissed by the Court who noted that the 60-90 day limit in
question referred to cases after the final order for surrender had been made which was not
relevant in Mr Dundons’ Case.
Issues that have emerged from Irish Jurisprudence
One of the key issues that have been noted in the study of European Arrest Warrants is the
issue of proportionality. Spencer notes that there have been cases with regard to the issue of
proportionality and whether the issuing of a European Arrest Warrant by an executing
member state is an appropriate response for what could be considered to be a minor offence
in the executing states. There have been many cases in the Irish Courts where the main issue
is regarding whether the issue of proportionality is a matter solely for the consideration by the
issuing judicial state when deciding to issue a European Arrest Warrant or whether the High
Court in Ireland is entitled to consider proportionality when considering to surrender the
respondent as a result of an European Arrest Warrant?
In Minister of Justice and Equality v Ostrowski37the High Court needed to consider whether
or not the Court was ‘obliged/entitled to consider whether a decision to surrender would be
proportionate to the likely sentence that the appellant would receive for the offence in
question. The court looked to Article 1.2 of the Framework Decision Obligation which stated
‘all member states shall execute any European Arrest Warrant on the basis of mutual
recognition’. Therefore the Court noted that it was required under the Framework Decision to
surrender the person sought.
The issue of proportionality was again the main issue in Minister for Justice Equality and
Law Reform v Brennan38. In this case the appellant, Thomas Brennan was sought by the
courts of the United Kingdom in relation to escaping from lawful custody which carried with
it a mandatory minimum sentence which was at the discretion of the UK judge. On appeal of
his surrender order the appellant wished to clarify how long the appropriate sentence for
escaping from lawful custody would be, given the personal circumstances of the appellant.
He went on the argue that without this information the appellants constitutional right to
liberty would be infringed and the High Court Judge could not protect the rights of the
individual in question once surrender was granted. The Court rejected this argument noting
that the execution of the warrants is subject to the provisions of the framework provision and
the sentence that the appellant will receive is at the discretion of the Courts of the United
Kingdom.
One key concern that Farrell and Hanrahan notes with regard to how the Irish Courts
approach EAW cases is that they have tended to take a much less active role in relation to the
36 [2005] IESC 83
37 [2013] IESC 24
38 [2007] IESC 21

10. protection of the requested persons rights under article 37 of the 2003 act which mandates
that the court refuse surrender where there is a real concern that the fundamental rights of the
individual will be infringed. However case law before the Supreme Court has noted that
surrender itself should only occur where the surrender would constitute a contravention of the
European Convention of Human Rights. As long as the surrender does not infringe on the
persons human rights, the surrender will not be prohibited under Article 3739.
The effects of the decisions of Stapleton40 and SMR41 are that the principle of mutual trust
and confidence has led to two presumptions in the determining proportionality. First, the
court can generally assume that no fundamental rights of the accused will be violated
following his surrender unless proved otherwise. Second, even if the evidence tends to show
that the trial and imprisonment of the requested person would involve an infringement of the
person’s fundamental rights, it can be presumed that such an infringement can and will be
remedied by the issuing member state following the surrender42. Edwards notes the various
problems with the issue of proportionality for very minor offences such as the possession of a
small quantity of narcotics for personal consumption. In such cases the use of European
Arrest Warrants can be considered to be disproportionate. However it has been argued that if
an executing authority was required to perform a ‘proportionality check’ this would
undermine the concept of mutual recognition which the European Arrest Warrant system is
based on. It would also add another layer of complexity to a system which is supposed to be
simplified. Edwards goes on the further note that the Framework Decision of 2002 does not
allow for non-surrender on the ground that the use of an EAW in the particular case
represents a disproportionate measure43.
One key concern that Farrell and Hanrahan note with regard to how the Irish Courts approach
EAW cases is that they have tended to take a much less active role in relation to the
protection of the requested persons rights under article 37 of the 2003 act which mandates the
court to refuse surrender where there is a real concern that the fundamental rights of the
individual will be infringed as a result of the surrender. However case law before the
Supreme Court has noted that surrender itself should not occur where the surrender would
constitute a contravention of the European Convention of Human Rights. Hence as long as
the surrender does not infringe on the persons human rights, the surrender will not be
prohibited under Article 3744.
It has been noted that Section 37 of the Act of 2003 expressly prohibits surrender on a wide
range of human rights related issues under the Irish Constitution. In the case of Minister for
Justice v Stapleton45 the High Court refused to surrender the appellant on the grounds of
delay, for offences committed 28 years previously. It was held that ‘the lapse of time since
39 Farrell and Hanrahan(2011) p240.
40 [2008] I IR669
41 [2008] 2 IR 242.
42 Farrell and Hanrahan (2011)p242
43 Edwards J (2014) p43.
44 Farrell and Hanrahan (2011)p240.
45 [2008] I IR669

11. 1978 to the present time…any trial which would likely take place goes beyond any time which
a fair trial can take place in respect of those offences. However this decision was overturned
on appeal to the Supreme Court which noted that the issue of delay could not be relied upon
‘unless the respondent clearly demonstrated that there was such a ‘defect in the system of
justice of the requesting state’. Hence a lapse in a significant amount of time will not be
considered to be a bar from extradition from Ireland. It was at the discretion of the Courts of
the issuing state to determine whether or not a time lapse was prejudicial to the trial.
Another key issue was addressed in Minister for Justice v Altravicius46 with regard to the
defendants right to make requests for further information from the courts. On appeal to the
Supreme Court it was argued by the appellant that the request by the High Court of the
requesting state was not a necessary proof for a surrender to be made. The supreme court
noted that in allowing the appeal that the respondent was not entitled to a copy of the
domestic warrant because all the necessary information should have been contained in the
copy of the European Arrest Warrant received by the applicant as required by Article 10 of
the European Arrest Warrant Act 2003 and that the requesting State is acting in good faith.
Reasons for non-surrender.
While the Courts do tend to rule in favour of the appellant rather than the respondent, there
have been particular circumstances were the courts have ruled in favour of the appellant due
to significant issues of law that are in the public interest.
One of the key issues appeared in the cases of Bailey47 which the issue was, could a European
Arrest Warrant be issued for an offence committed in a place other than the issuing state?
In this case the High Court certified a point of law of exceptional public importance to
consider the extra-territorial jurisdiction to prosecute an offence where the national Director
of Public Prosecutions had opted not to prosecute. The key issue of the case was ‘Whether the
surrender of persons prohibited by section 44 and section 21a of the Act where the offence
for which the surrender is sought is committed in the State.’ Under section 44 the section
provides that a person will not be surrendered to the issuing state if the offence specified in
the European Arrest Warrant was committed in a place other the issuing state. In this case the
offence was not committed in France, but was committed in Ireland. Section 21a of the Act of
2003 states that the Irish Courts will refuse to surrender individuals for the purposes of
investigative detention and will only allow for surrender for the purposes of bringing persons
to trial or for the purposes of executing a custodial sentence or detention order48.
In making its decision the High Court referred to the case of Olsson49. In this case the High
Court ordered the respondents surrender to Sweden. In its ruling the Court is only permitted
to refuse to surrender a requested person when it is satisfied that no decision has been by the
issuing state to charge or try that person. It was held by Denham C.J. that no decision had
46 [2006] IESC 23
47 [ 2012] IESC 16
48 Edwards J. (2014) p50.
49 [2011] I.I.R

12. been made by the French authorities to try or to charge the person in relation to the offence in
question but to detain the person for the purposes of investigation.
Conclusion
The European Union has had considerable success in putting in place a simplified extradition
system in place through the European Arrest Warrant system. The process of fitting national
procedures into a ‘one-size fits all’ model has attempted in order to bring the criminal justice
systems of the member states of the European Union together to create an area which delivers
‘justice sans frontiers’.
This essay has examined the nature of extradition before and after the Introduction of the
EAW system. Prior to 2002, extradition between European member states was a lengthy
complicated process given the differences in the legal systems in member states. Extradition
arrangements also often require treaty arrangements in order to facilitate extradition. Given
this complicated process the European Union has opted for a system that is more focused on
rendition, where legislative procedures are put in place to facilitate the surrender of persons.
Following the events of September 11 2001 the EU fast-tracked the simplification of
extradition under the Council Framework decision of 2002, which upholds the doctrine of
mutual trust and mutual recognition between member states. This doctrine has shaped the
implementation of the European Arrest Warrant system in Ireland. In the decade since its
introduction, it is clear the doctrine of mutual recognition has had a great deal of influence on
decisions made in relation to the execution of European Arrest Warrants in Irish
Jurisprudence. Mutual recognition in Ireland has had the effect of limiting the Irish Courts
discretion in whether or not to grant or refuse surrender applications for European Arrest
Warrants. It appears that in only very special circumstances as seen in the case of Bailey that
are in the public interest, the courts will not permit surrender. This has been made clear in the
case of Ostrowski, where the High Court noted that the under the Frame work Decision
requires all member states to execute any European arrest Warrants on the basis on mutual
recognition.
In the author’s opinion, this does create a certain amount of concern with regard to the due
process and a potential erosion of an individual’s due process rights. A particular concern of
the authors is with regard to the issue of proportionality, where it appears that certain member
states are issuing European Arrest Warrants for very minor offences such as possession of a
small quantity of narcotics. It creates blockages in the national Courts and given the
requirement for the State to extradite an individual under the principal of mutual recognition,
it obstructs the individual’s personal, professional and social life and severely damages his
reputation.

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Minister of Justice and Equality v Ostrowski [2013] IESC 24
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