The European Court of Justice is set to receive a referral from the Supreme Court regarding an appeal initiated by Seán Walsh, believed to be part of a dissident republican militia, challenging his prospective extradition to Northern Ireland. Walsh, 56, from Ballinlough, Douglas, County Cork, is sought for charges related to IRA membership, stemming from his alleged participation in a meeting of high ranking paramilitaries in Omagh, County Tyrone, in July 2020, an assertion he denies.
Unanimously, the Supreme Court’s seven members concurred on Thursday to query the European court on whether an extradition request for an accused individual must consider the EU’s Charter of Fundamental Rights, if there is already assurance that there is no tangible threat to the individual’s rights under the Constitution and the European Convention on Human Rights (ECHR) article 7.
The court concluded that the Constitution or the ECHR do not bar Mr Walsh’s extradition. According to Justice Marie Baker, Walsh’s claim that the extradition would infringe his ECHR rights lacks substantiated facts or rationale.
Walsh failed to point out any systemic failing that indicates a probable grave violation of his ECHR rights upon extradition. In contrast, Justice Baker highlighted recent UK rulings demonstrate a legal infrastructure that applies the ECHR “decisively and firmly”.
Previously authorised by the High Court in October 2022, Walsh argued his extradition would violate ECHR article 7, with reference to a retrospective UK law from 2021 which altered the scope of the penalty he may face upon conviction. ECHR article 7 specifies no one shall be deemed guilty for any action or offence that wasn’t unlawful when committed.
Despite the Northern Ireland Court of Appeal’s decision that the 2021 law modifications’ retrospective application was at odds with ECHR article 7, this ruling was overturned by the UK supreme court. The disputed case involved convicts sentenced before the 2021 Counter Terrorism and Sentencing Act was enforced. The Act prolongs the amount of time an individual convicted of terrorism-related offences must serve before becoming eligible for early release. A potential sentence reduction of 50% was previously possible, but the court revealed that it is now limited to 33%.
Mr Walsh’s assertion of a lower sentence reduction, which would further require the approval of parole commissioners at the two-thirds mark of the sentence, was presented to the Supreme Court, adding more uncertainty than previous, Mr Walsh proposed.
According to Mr Walsh’s argument, the decision of the UK court could be considered a systemic failure or could be taken as proof that the UK courts have made a mistake in their understanding of the ECHR.
In her ruling, Justice Baker made it clear that a court’s refusal to comply with a legal European Arrest Warrant (EAW) should be seen as highly unusual. If one wishes to avoid extradition citing fear of a violation of their basic rights, they must show that dire situations that would expose them to a ‘real risk’ of the violation of their basic rights. This can involve a significant flaw in the law administration of the state requesting.
Her team concedes that the release on parole is merely a privilege that can be practiced by the administration, not the courts.
The court refused Mr Walsh’s claim that it should address the ‘correctness’ of the UK’s decision. This hints at a lack of respect for UK’s judicial independence and would undermine the jurisdiction of the European Court of Human Rights. Recent UK judgements show that the Convention has been “unequivocally embraced and executed” within the UK legal system, added Justice Baker.
Given the principles of mutual trust, acknowledgement, and legal cooperation in the EAW mechanism, the requesting state is the appropriate place to rectify any feared violation of ECHR rights, if a solution exists, commented the judge.
She tossed out the argument stating that extradition should be denied for a supposed violation of Mr Walsh’s ECHR or constitutional rights.
However, she did point out a “further complexity” relating to how much the charter matters in a court’s agreement to an extradition. This issue will be forwarded to the Court of Justice for further examination.
Mr Walsh faces a variety of charges, including membership in the IRA, directing IRA activities and involvement in a plot to oversee a terrorist organisation, all of which he refutes.
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