Baker J (nem diss): European arrest warrant - extradition - application to surrender to Republic of Lithuania - charges of smuggling, possession of firearms, terrorism - surrender ordered in High Court and upheld in Court of Appeal - appeal on matter of general public interest - interpretation of s. 21A of the European Arrest Warrant Act 2003 (as amended) - whether a 'decision' had been made to charge and try the appellant in the issuing state - arrangements to acquire firearms and explosives in Lithuania, while acting in an organised terrorist group - whether section 21A was capable of a conforming interpretation with the Framework Decision - "the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state" - procedural steps of prosecution in Lithuania - possibility that decision to charge a person may be revoked -

"The appellant argues that a tension exists between two recent decisions of this Court, those in Olsson and Bailey, as to the meaning and application of s. 21A(1), and that, as this subsection precludes surrender in any circumstances when a positive decision has not been made to charge and try a person, the express requirements provided in s. 21A(1) are more restrictive than those found in the Framework Decision.
...
Counsel argues that a conforming interpretation is not possible, and I would commence the discussion by observing that a conforming interpretation is not necessary provided Irish domestic legislation can be read in the way that respects mutual cooperation and the obligation to have regard to the purpose and intention of the Framework Decision.
...
A decision to try a person is a decision that he or she be sent forth for trial, and not a statement that the trial process has commenced. It cannot yet commence in Lithuania, as it could not in Olsson have commenced in Sweden, because of a procedural formality and mandatory step which remained to be taken. Thus a decision to try person is not coterminous with the fact that the trial has commenced, but is rather a state of facts or state of affairs which means that sufficient evidence exists or is thought to exist to put a person to trial. That was precisely what was missing in Bailey.
...
The evidence points the other way: an intention exists to try and charge him, a decision has been made this will be done, and on the balance of probabilities it will happen. Indeed the evidence is that as a matter of high probability this will happen. At its height the appellant’s argument is that he may not be charged and tried and that the ultimate result of the process is unclear. That argument is not sufficient to rebut the presumption and the evidence supports the proposition that he will be tried and charged."

Charleton J (concurring): Extradition and surrender - harmonisation of law between member states - history - grand juries.

"As of December 2001, Ireland made a statement that this jurisdiction would “in the implementation into domestic legislation of this Framework Decision, provide that the European Arrest Warrant shall only be executed for the purpose of bringing that person to trial” or to execute a custodial sentence. Melding several disparate legal systems into harmonised functioning, even in an area as straightforward as the surrender of suspects, has, however, proven to be fertile soil for contentions that the transfer as between countries infringes rights of the suspect. Sometimes, what is imbedded as a necessary element of the fair disposal of an accusation against a person in one legal system may be presented as a violation of rights that are elsewhere assumed to be inviolable. And that has been the argument in this case, as in so many before.
...
The respondents in this case have contended that Article 21A of the 2003 Act can be read in conformity with the relevant Framework Decision which enshrines the goal of surrender between contracting states. This would go a step beyond what is capable under the principle, and would render the interpretation of national law contra legem. Article 21A is a domestic provision clearly at odds with the objectives of the Framework Decision; it cannot therefore be interpreted in the light of it.
...
Consulting Blackstone, Commentaries on the Laws of England, Book the Fourth, Public Wrongs (23rd edition, London, 1854), brings the seriousness of the trial process into focus. An indictment was historically “a written accusation of one or more persons of a crime or misdemeanour, preferred to, and presented upon oath by, a grand jury”; p 400. Moving to 1922, the date of the official return of independence, it is noted that the then current edition of Archbold’s Pleading, Evidence and Practice in Criminal Cases (26th edition, London, 1922) p 71-72 stated that grand juries had four functions: of presentment of indictments made “of their own knowledge and information without the intervention of any prosecutor or the examination of any witnesses”; of voluntary bills, meaning accusations made by those people who wished a serious charge to be brought; of bill after a preliminary examination by magistrate; and of bills sent after a magistrates enquiry but which were vexatious."