This afternoon in the High Court an application for a provisional arrest warrant for Edward Snowden under the Extradition Act 1965 was refused. There is no particularly spectacular basis for the refusal. In a short judgment, Mac Eochaidh J. held that one of the requirements of s. 27 of the 1965 Act–that the location of the alleged offence be specified in the request–was simply not fulfilled. As there was a period of time when Mr Snowden was outside of the United States after he last accessed the NSA but before the first publication it was not clear that the offences alleged had been committed in the USA. One imagines that, provided the United States knows where the offences were committed, the application will be resubmitted. Thus it is germane to think a little about what the provisional arrest warrant under s. 27 means.

A section 27 arrest warrant allows for the person in question to be remanded in custody or on bail pending receipt of an extradition request, but if no request is received within 18 days then the person is to be released. This makes the timing interesting, as it would tend to suggest that the United States believes that Snowden may arrive in Ireland–if at all–within the next two to three weeks. That said, even if the provisional arrest warrant is cancelled or expires it appears that a further such warrant can be issued at a later date (s. 27 of the 1965 Act as amended by s. 8 of the Extradition (Amendment) Act 1994). One might, then, be advised not to read too much into the timing of the application but it may not be the last that the Irish Courts will hear of it.

What is important is that even if issued this does not mean that an extradition would be ordered should such a request be made. The supporting documents required for an extradition request are outlined in s. 25 of the 1965 Act and it is interesting to note that, in the judgment today, Mac Eochaidh J. suggested that the information required about the time when the alleged offence was committed might cause some difficulty were an extradition request to be considered. He held:

Not without some hesitation, and having considered the matter carefully, it appears to me that there is adequate information about the time within which the offences were said to have taken place….I am aware that there is a difference between the degree of information required to ground an application for a provisional warrant and that which would be required in respect of an extradition request. Having regard to that difference between the provisions of s. 25(b) and s. 27(2A)(c), I say that there is adequate description of the time when the offence may have taken place.

Were we ever to get to this stage in a proceeding here in Ireland, this at least suggests that at the level of formality (and before human rights concerns arise, including potentially Article 3 and 6 claims under the ECHR) some considerably firmer indications as to the timing, as well as the location, of alleged offences might be required before an extradition would be permitted by the Irish courts.

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Written by Fiona de Londras

Fiona de Londras is a Professor of Law in Durham University. Her third book, Detention in the War on Terrorism: Can Human Rights Fight Back?, was published by Cambridge University Press in 2011. She specialises in terrorism and counter-terrorism, human rights protection in Ireland and more generally, and international criminal law. You can contact Fiona at fiona.de-londras[@]durham.ac.uk