Michael McDowell (Dublin South East, Progressive Democrats)

This amendment introduces a new section 60, which in turn inserts a new section 4A in the European Arrest Warrant Act 2003. Its purpose is to provide for a general presumption that the state issuing a European arrest warrant will comply with the requirements of the framework decision on the European arrest warrant unless the contrary is shown. This new section provides a general indication on the broad approach a court should adopt in its examination of all aspects of the European arrest warrant.

The amendment draws attention to the fact that the European arrest warrant involves a different process from extradition. It is not merely a variation on the procedures that apply to extradition cases. The European arrest warrant was introduced to facilitate closer co-operation between countries that have a common interest and are closely bound by their shared membership of the European Union. Concepts such as mutual trust and good faith — or, in American terms, full faith and credit — are, therefore, the cornerstones on which the European arrest warrant is based. In particular, the European arrest warrant gave practical effect to the principle of mutual recognition in this area of the criminal law.

This is not an irrebuttable presumption but it suggests to our court that an inquiry does not have to be held into an issue unless there are substantial grounds raised before the court by the person to whom the warrant relates indicating that there exists an issue to be investigated by the court. It puts an onus on the person in respect of whom the arrest warrant is made to raise such substantial grounds. The alternative view would be that the High Court, in considering a European arrest warrant, would have to start summoning witnesses or inviting submissions on whether France, for example, proposed to comply with its undertakings as a requesting state. It must be made clear that the High Court is safe to proceed unless the person sought raises a substantive issue of sufficient materiality, weight and force so as to put the court on its guard regarding the matter in question. The European arrest warrant would never really work if the High Court had to ask what would happen to the person in question when he got to France if the French were acting in bad faith and were in breach of the rule of specialty, for example.

A person before the court cannot simply state he wants the French to prove that they will comply with A, B and C. He must raise a substantial case that requires an answer rather that simply raise paper issues and demand rebutting evidence from the authorities seeking to execute the European arrest warrant.

See this speech in context