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Alleged breach of EU data law does not prevent surrender to UK for prosecution for murder

By: James Cross BL

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High Court, in European Arrest Warrant proceedings, orders the surrender of the Respondent to the United Kingdom for prosecution for two murders, on the grounds that: there were no grounds to impeach the judicial decision to issue the warrant; the mere existence of an arguable evidential issue in relation to the alleged breach of European Law in relation to data retention is insufficient to engage any of the relevant provisions of the Framework Decision or the 2003 Act so as to provide a basis for refusal of surrender, and the Respondent will have an opportunity to advance an argument in relation to the alleged breach of his rights at his trial; and the impact on the Respondent’s family and personal rights would not be sufficiently severe, unusual, disproportionate or unwarranted so as to outweigh the strong public interest in surrender in this case.

European Arrest Warrant – prosecution warrant – UK authorities seeking the surrender of the respondent for prosecution for two murders – further information - degree of participation – points of objection - delay or passage of time was likely to be an obvious issue – further information requested - material conflict between the averments in the respective affidavits - mobile phone and cell site data – data emerged out of fresh investigation - certain of the statutory provisions relating to the retention and access to such data in this jurisdiction were general and indiscriminate, and therefore inconsistent with EU law - no information as to the nature and extent of the Northern Ireland statutory provisions (if any) that permitted access to and analysis of data in this case, or as to any relevant case law in that jurisdiction – admissibility of such evidence in a criminal trial - requirements of effective judicial protection – proportionate to issue the warrant – mutual trust and recognition - satisfied that the warrant has been issued by an independent judicial authority – no grounds to impeach the judicial decision to issue the warrant - fact that there was no apparent reference by the issuing authority to consider the two previous decisions not to prosecute is not a significant or material omission in the context of the principles set out above, which primarily require an independent assessment of the evidence, both inculpatory and exculpatory - previous decisions not to prosecute were superseded by the fresh investigation - fair, rational and reasonable basis for the decision - ot persuaded that any failure on his part to consider a possible breach of rights arising from the CJEU case law referred to above constitutes a basis for refusal of surrender - resolved at any future trial - no assertion or evidence that the actual process of retention, disclosure or examination of the data in question was inappropriate, unnecessary or disproportionate in the instant case - may have the basis of a challenge to the admissibility of the telephone evidence - no doubt that he will have an opportunity to advance an argument to that effect at his trial - mere existence of an arguable evidential issue is insufficient to engage any of the relevant provisions of the Framework Decision or the 2003 Act so as to provide a basis for refusal of surrender – open to the respondent to rely on the potential applicability of EU law and Charter rights to the facts of his case should he seek to exclude the telephone data evidence in a subsequent trial - no error, omission or impropriety attaching to the decision by the independent judicial authority to issue the warrant in this case that demonstrates that there was or will be non-compliance with the requirements of the Framework Decision, or that indicates any lack of proportionality in that judicial decision - weight of public interest - requesting authorities have adequately explained most aspects of the passage of time - culpable and blameworthy prosecutorial delay – Court did not consider that the facts relating to family and personal matters relied upon in this case disclose sufficiently severe, unusual, disproportionate or unwarranted consequences of surrender on the Article 8 or constitutional rights of potentially affected persons so as to outweigh the strong public interest in surrender in this case – preliminary reference refused – surrender ordered.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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