Supreme Court: Accused’s appeal against surrender to UK dismissed

About this case:

• Citation:
  [2026] IESC 47
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Donal O'Donnell

Delivering judgment for the Supreme Court, Chief Justice Donal O’ Donnell opined “The Member States of the European Union founded on values set out in Article 2 TEU are not assumed to be states which subject individuals to torture or inhuman or degrading treatment or engage in flagrant denials of justice, and the EU is not to be assumed to willingly engage in surrender arrangements with states that do so. It is important, therefore, that the process of raising an objection to surrender does not itself become a vehicle to frustrate the objectives of the Framework Decision and the TCA, both of which require that the process be dealt with as a matter of urgency.”

Background

In December 2025, the High Court ordered the surrender of the appellant to the UK in respect of historical offences of indecent assault and gross indecency alleged to have occurred in the 70’s and 80’s when he was the stepfather of the complainants.

The appellant objected to his surrender on grounds inter alia that the sentencing regime which would now apply to him if convicted in the UK would be inconsistent with Article 7 of the European Convention on Human Rights (ECHR) and/or Article 49 of the Charter of Fundamental Rights of the European Union, both of which prohibit the retroactive penalisation of conduct and any retroactive increase in penalty.

Having been granted leave to appeal to the Supreme Court, that same ground was the primary focus of the appellant’s appeal. The appellant’s case relied upon the “firm opinion” of a UK-based Junior Counsel that if convicted, the appellant would likely receive a heavier sentence than that which would have been imposed had he been tried and convicted at a time closer to that of the alleged offences.

The Supreme Court

Having examined the relevant law, Chief Justice O’ Donnell outlined that where it is alleged either pursuant to s.37 of the European Arrest Warrant Act 2003 or otherwise, that surrender or extradition is precluded on grounds of alleged breach of fundamental rights, a number of considerations apply.

In the first instance, the Chief Justice noted that where it is alleged that the Constitution precludes surrender or extradition, the Irish court should apply the test in Minister for Justice and Equality v Brennan [2007] IESC 21, [2007] 3 IR 732 and Minister for Justice and Equality v Balmer [2016] IESC 25, [2017] 3 IR 562, refusing only where it could be said that the treatment of the person to be surrendered would be so offensive to Irish constitutional values that it would be impermissible to surrender them. 

The Court then considered that where it is alleged that the ECHR precludes the surrender of a requested person, and where the requesting state is a contracting state to the ECHR, the test in Stapleton v Ireland (Application no. 56588/07, 4 May 2010) applies and the Irish courts will usually only consider refusal if there is reason to believe that the contracting state will uphold or enforce that person’s ECHR rights, or perhaps where it has been already determined that that state is in breach of its ECHR obligations.

Turning to situations where the requesting state is not a contracting state to the ECHR, the Court explained that where the alleged conduct would constitute a breach of the absolute guarantees in Article 3 ECHR if carried out in the contracting state, the principles in Soering v the United Kingdom (1989) 11 EHRR 439 apply to prevent surrender. If the conduct does not constitute such a breach, then Othman v the United Kingdom (2012) 55 EHRR 1 may apply and the person must show a flagrant denial of justice or a complete negation of the right.

As to cases in which surrender is allegedly precluded by the Charter, the Chief Justice confirmed that if the requesting state is a European Union Member State, the test in Aranyosi and Căldăraru (Joined Cases C-404/15, C-659/15 PPU ECLI:EU:C:2016:198) applies. If the requesting state is not a Member State, then test in Petruhhin (Case C-182/15, ECLI:EU:C:2016:630) applies. 

The Chief Justice set out that the “real risk” test “should not be understood to reduce the threshold for refusal of surrender” and is more relevant where the context is factual rather than legal, such as where the requested person will allegedly be exposed to conditions amounting to inhuman or degrading treatment. Alternatively, where the law of the requesting state itself gives rise to an objection and will be applied if the person is surrendered, then the issue must be capable of being determined and no precautionary “real risk” principle applies.

Otherwise, in most cases where a fundamental but not absolute right is engaged, a court must address two issues: firstly, whether the law in question amounts to a flagrant denial of rights, and secondly, whether there are substantial grounds for believing that the requested person is at real risk of being subjected to such a flagrant denial of justice.

As to situations in which it is suggested that the Charter requires a higher standard than that set out in the jurisprudence relating to a corresponding ECHR right, the Chief Justice confirmed that the requested person must be able to identify something in the common constitutional tradition of Member States indicating that a different standard is required. 

Finally, the Court confirmed that where it is alleged that the treatment of the requested person in the requesting state should warrant refusal to surrender that person, the court may only refuse surrender on “objective, reliable, specific and properly updated information which may be expected to be obtained in either judgments of international courts, judgments of the European Court of Human Rights, or those of the courts of the requesting state, or authoritative reports by bodies such as the Council of Europe or bodies operating under the aegis of the United Nations.”

Noting that the application of the outlined principles would normally mean that it is unlikely that surrender will be refused under the EU-UK Trade and Cooperation Agreement (TCA) other than in “exceptional cases which are convincingly and clearly substantiated, and without the necessity for protracted hearings, appeals and references to the Court of Justice”,  the Chief Justice emphasised that there is a significant difference between surrender under the European Council Framework Decision 2002/584/JHA or the TCA on one hand, where countries have made a collective judgment that they have sufficient trust and confidence in each other’s legal systems to cooperate in criminal matters, and on the other hand expulsion or removal to a third country or pre-existing extradition arrangements.

Highlighting that the Framework Decision and the provisions of Title VII TCA are agreements designed to streamline the process of surrender, the Court set out that neither the Framework Decision nor Title VII TCA contemplate that “the question of fundamental rights precluding surrender should be anything other than an exceptional circumstance.” 

As to the appellant’s Article 7 ECHR objection, the Supreme Court considered it “firmly established” in Coëme v Belgium (Applications nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, 22 June 2000) and R (Uttley) v Secretary of State for the Home Department [2004] UKHL 38, [2004] 1 WLR 2278 that the words “penalty” and “applicable” in Article 7 do not refer to the actual penalty which would likely have been imposed had the offender been caught and convicted shortly after the commission of the offence, and so a comparison between the sentence they would have received and that which would now be imposed is unnecessary.

Conclusion

Being satisfied that the objection in the case before the Court did not “come close” to warranting a refusal of surrender or give rise to any matter requiring a reference to the CJEU, the Supreme Court dismissed the appeal.

Minister for Justice v Paul King [2026] IESC 47