What happens when you are arrested on foot of a European Arrest Warrant or SIS Alert?
A person for whom a Schengen alert (SIS) has been issued by a judicial authority, may be arrested on grounds of urgency where it is believed that the person is likely to leave Ireland before a European Arrest Warrant can be received. A person arrested in these circumstances must be informed of a number of matters, as follows:
As soon as may be after arrest, the person must be brought before the High Court. The Court may remand the person in custody pending receipt of the Warrant or a facsimile thereof. If the warrant is not received within 7 days, the person will be released, but he or she may be released at any time by the Court where it appears that no warrant has been issued.
Issues which a court considers in determining whether to surrender a person to a requesting state:
(i) Is the Person sought for the purpose of Investigation or Prosecution in the requesting state?
A person can object to his/her surrender to a requesting state on the basis that his/her surrender is sought for the purpose of an investigation and not a prosecution of an offence. Section 21A of the 2003 Act places the burden of proving same on the person. The Courts are reluctant to surrender a person where a warrant was issued for the purpose of investigation of an offence alone. In circumstances, where the investigation might or might not result in a prosecution, would be insufficient to order the surrender of a person.
(ii) S.45 of European Arrest Warrant Act 2003
A person shall not be surrendered if her or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued. In general, the court will refuse to surrender a person if they have been tried in absentia (in their absence) and without having a lawyer present. The Court will consider surrender if the requesting state guarantees a re-hearing or a right of appeal to the person if surrendered.
In Minister for Justice and Equality v Ziolkowski  IEHC 198, the High court refused to surrender a person where the statutory requirements for trials in absentia were not met. The Court was not satisfied that the respondent had attended at the hearing which resulted in a finding of guilt.
(iii) Prison Conditions in Requesting State and Inhuman or Degrading Treatment
In Rettinger, the Supreme Court held that the test was that Irish Court must not surrender a person to another state where ‘there are reasonable grounds for believing that he will be subjected to inhuman or degrading treatment. Denham J. set out an eight point summary of the approach to be taken by a court where such an objection is raised as follows:-
A court should consider all the material before it, and if necessary material obtained of its own motion;
A court should examine whether there is a real risk, in a rigorous examination of the material;
The burden rests on the person to adduce evidence capable of proving there are substantial grounds for believing that if he or she were returned to the requesting country he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the ECHR;
It is open to the requesting state to dispel any doubts by evidence. This does not mean that the burden has shifted. Thus, if there is information from an applicant as to conditions in the prisons of a requesting state, with no replying information, a court may have sufficient evidence to find that there are substantial grounds for believing that if the applicant were returned to the requesting state he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the ECHR. On the other hand, the requesting state may present evidence which would, or would not, dispel the view of the court;
The court should examine the foreseeable consequences of sending a person to the requesting state;
The court may attach importance to reports of independent international human rights organisations, such as amnesty international, and to government sources, such as the US State Department;
The mere possibility of ill treatment is not sufficient to establish the person’s case;
The relevant time to consider the conditions in the requesting state is at the time of the hearing in the High Court. Although on appeal, an application could be made, under the rules of court, seeking to admit additional evidence, if necessary.
In Minister for Justice v Angel  IEHC 699, the High Court refused to surrender the respondent to Romania, to serve a sentence of two years and six months imprisonment for offence of driving a motor vehicle without a licence, on the grounds that the likely conditions of his detention will be in breach of the respondent’s right not to be subjected to inhuman or degrading treatment.
(vi) Article 8 and Family Rights
In such cases, where the respondent has an established family life, the answer to the first three questions will be in the affirmative. The court will then have to decide if such an interference would be disproportionate. The courts acknowledge that surrender will almost always lead to some severing of family relationships. Such a severance of family ties by surrender or imprisonment will not normally be seen as such a gross invasion of Article 8 rights as to amount to a breach of the Convention. The circumstances in which surrender for the purposes of prosecution or imprisonment will amount to a breach of Article 8 will be highly exceptional and likely to be exceedingly rare.
In considering whether surrender would constitute a violation of a person’s Article 8 and Family rights, the High Court has held (Peart J.) that four questions must be considered:-