Opinion of the Advocate General — ECLI:EU:C:2025:940
Date: 2025-12-04
Language of the case: English

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 C-528/24 - 1 
Case C-528/24 [Boothnesse] i 
Request for a preliminary ruling 
Date lodged: 
31 July 2024 
Referring court:  
Supreme Court (Ireland) 
Date of the decision to refer: 
31 July 2024 
Appellants:  
LQ 
NT 
RM 
Respondent:  
The Minister for Justice and Equality 
 
[OMISSIS] [National court references] 
[OMISSIS] [Bench hearing the case] 
IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, 
AS 
AMENDED 
[OMISSIS] [Lists the parties in each of the three cases before the Supreme Court] 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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Order for Reference to the Court of Justice of the European Union for a 
Preliminary 
Ruling pursuant to Article 267 TFEU dated the 31st day of July 2024  
Subject Matter of the Dispute 
1. The surrender of each of the [three] [OMISSIS] appellants is sought by the 
United Kingdom of Great Britain and Northern Ireland (“the UK”) pursuant to 
three related Trade and Co-Operation Arrest Warrants (“TCAW”) in accordance 
with the provisions of Title VII of the Trade and Cooperation Agreement 
(“TCA”). On 6 December 2022, the three TCAWs were issued by the judicial 
authority sitting at Portsmouth Magistrates Court seeking the surrender of the 
appellants. All three warrants were endorsed for execution by the High Court 
([OMISSIS][name of relevant judge of the Irish High Court, the executing 
Member State]) on 16 January 2023 pursuant to s[ection] 13(2) of the European 
Arrest Warrant Act, 2003, as amended (“the 2003 Act”). The TCA warrants are 
attached to this Order of Referral at Appendix 1. 
2. The appellants were subsequently arrested and brought before the High 
Court. All three appellants are now on bail pending the determination of these 
proceedings. 
3. As set out in the TCAWs, the issuing judicial authority intends to prosecute 
each of the appellants for 39 fraud-type offences, alleged to have been committed 
by them in their capacity as joint owners and directors of the company ‘Stanton 
Roofing and Building Limited’. In each instance of alleged fraudulent conduct 
detailed at Part (e) of the TCAW, the appellants are alleged to have falsely 
misrepresented the extent to which roof repairs and replacements were required, 
and to have carried out unnecessary remedial works for which they significantly 
overcharged the property owners concerned. 
4. Each appellant objects to his surrender on the ground that surrender would 
violate the provisions of Article 625(2) TCA because they would be required to 
serve sentences of six months imprisonment for contempt of court in relation to 
breaches of a Restraint Order. These Restraint Orders were issued in March 2021 
by Reading Crown Court under section 41 of the Proceeds of Crime Act, 2002 
(“the 2002 Act”), to ensure that the appellants’ assets and those of Stanton 
Roofing and Building Limited would be available as compensation for the alleged 
injured parties in the event of convictions being returned. The orders prohibited 
the disposal of assets related to the assets of Stanton Roofing and Building 
Limited, the appellants’ bank accounts and their motor vehicles. The Restraint 
Orders obliged the appellants to disclose and provide necessary details of all 
assets in or outside England and Wales. On 5 August 2021, Reading Crown Court 
([OMISSIS] [name of judge sitting in that UK court]) determined that each of the 
appellants had breached the terms of the restraint orders contrary to s[ection] 
41(7) of the 2002 Act. 
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5. The information about the sentences imposed for contempt of court is 
contained at Part (f) of each TCAW. Of particular note, each TCAW states: 
“Breach of the Restraint Order is not a criminal offence, thus cannot constitute an 
extradition offence and is therefore not included within the list of extradition 
offences. The finding by [OMISSIS] [the Reading Crown Court judge] that the 
defendant breached the Restraint Order and thus committed contempt of court 
does not constitute conviction, hence this warrant remains an accusation warrant 
only”. 
6. The central issue that arises in this case is whether Article 625(2) prohibits 
the surrender of these appellants because a person who is surrendered “may not be 
prosecuted, sentenced or otherwise deprived of liberty for an offence committed 
prior to that person’s surrender[,] other than that for which th[at] person was 
surrendered”. The relevant provisions of Article 27 of the Framework Decision on 
the European Arrest Warrant and the Surrender Procedures between Member 
States (2002/584/JHA) (“the Framework Decision”), provides for the same 
principle in virtually identical wording. 
7. Article 27 para 2 of the Framework Decision provides: 
“Except in the cases referred to in paragraphs 1 and 3, a person surrendered 
may not be prosecuted, sentenced or otherwise deprived of his or her liberty 
for an offence committed prior to his or her surrender[,] other than that for 
which he or she was surrendered.” 
8. Article 625(2) of the TCA provides: 
“Except in the cases referred to in paragraphs 1 and 3, a person surrendered 
may not be prosecuted, sentenced or otherwise deprived of liberty for an 
offence committed prior to that person’s surrender other than that for which 
the person was surrendered.” 
The Relevant Provisions of National Law 
9. The relevant provisions of national law applying to a TCAW are set out in 
the 2003 Act. The 2003 Act was enacted to give effect to the provisions of the 
Framework Decision and was amended to include surrender procedures between 
Ireland and the UK pursuant to the obligations under the TCA. Therefore, 
s[ection] 22 of the 2003 Act, when enacted, gave effect to the “rule of specialty” 
provisions in Article 27 of the Framework Decision and now gives effect to 
Article 625. 
10. Section 22(1) provides: 
“In this section, except where the context otherwise requires, “offence” 
means, in relation to a person to whom a relevant arrest warrant applies, an 
offence (other than an offence specified in the relevant arrest warrant in 
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respect of which the person’s surrender is ordered under this Act) under the 
law of the issuing state committed before the person’s surrender, but shall 
not include an offence consisting, in whole, of acts or omission of which the 
offence specified in the European arrest warrant consists in whole or in 
part.” 
Section 22(2) provides:  
“Subject to this section, the High Court shall refuse to surrender a person 
under this Act if it is satisfied that - 
(a) the law of the issuing state does not provide that a person who is 
surrendered to it pursuant to a relevant arrest warrant shall not be 
proceeded against, sentenced or detained for the purposes of executing 
a sentence or detention order, or otherwise restricted in his or her 
personal liberty, in respect of an offence, and 
(b) the person will be proceeded against, sentenced, or detained for the 
purposes of executing a sentence or detention order, or otherwise 
restricted in his or her personal liberty, in respect of an offence.” 
The full provisions of s[ection] 22 will be provided in Appendix 2 to this referral. 
High Court Proceedings 
11. The appellants’ primary objection was that surrender would breach the rule 
of speciality. Further information was sought from the National Crime Agency in 
the United Kingdom about the proceedings leading to the Restraint Orders and the 
circumstances in which the sentence was imposed (including their failure to 
appear at the hearing in respect of the alleged breach of th[os]e Order[s]) and also 
enquired about a right of appeal in respect of the contempt order sentence. The 
National Crime Agency furnished a lengthy reply which is included in Appendix 3 
to this reference. 
12. The appellants’ principal contention was that surrender to the issuing state 
would subject them to a sentence for which their surrender was not being sought, 
namely, the six-month sentence of detention imposed by the Reading Crown 
Court, thereby breaching the rule of specialty set out in s[ection] 22(2) of the 2003 
Act and Article 625 TCA. To this end, the appellants advocated for a broad, 
purposive interpretation of ‘offence’ in s[ection] 22(2), which had regard to the 
actual penalty imposed by the offence notwithstanding that such misconduct was 
not classified by the issuing state as a criminal offence. The appellants further 
submitted that the jurisprudence of the European Court of Human Rights 
(“ECtHR”), which applies an autonomous European Convention on Human 
Rights (“the Convention”) meaning when classifying offences within domestic 
legal systems for the purpose of engaging Article 6 fair trial rights, should inform 
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the High Court’s purposive interpretation of the 2003 Act, the TCA, and the 
Framework Decision. 
13. In a judgment dated 8 April 2024, the High Court ([OMISSIS][name of 
judge sitting in the Irish High Court]) (Minister for Justice & Equality v [LQ] & 
Ors [2024] IEHC 219) dismissed the appellants’ objection to surrender. [The 
judge] held that under both the Framework Decision and the TCA, it is a 
prerequisite of a valid arrest warrant that the conduct of which the person is 
accused or has been convicted constitutes a criminal offence under the law of the 
requesting state. She was satisfied that UK law did not treat these as criminal 
offences. Accordingly, she was satisfied that the sentences imposed in the UK did 
not come within the ambit of the rule of specialty in Article 625(2) TCA or in 
s[ection] 22 of the 2003 Act. 
14. [The Irish High Court judge] addressed the appellants’ objection to 
surrender based on alleged breaches of the Charter of Fundamental Rights of the 
European Union (“the Charter”) and the Convention and whether surrender would 
therefore be contrary to s[ection] 37 of the 2003 Act. A copy of s[ection] 37 is 
included in Appendix 4 to this Order for Referral. She considered that the right to 
liberty under Article 5(1 )(b) of the Convention was not an unqualified right. The 
fact that surrender might result in the deprivation of liberty did not bring the 
appellants within the ambit of s[ection] 37 or engage Convention rights, as 
considered by the ECtHR in Woolley v The United Kingdom (App No. 28019/10). 
In that case, the ECtHR found that the United Kingdom had not “deliberately 
misled the Swiss authorities” and there was “no improper or unfair manipulation 
of the processes of extradition” (Woolley, para 84). Similarly, [the Irish High 
Court judge] considered that in the present case, there had been no opacity or 
opportunism on the part of the issuing judicial authority, the appellants were 
afforded an opportunity to offer a defence to the contempt charges under the 
Proceeds of Crime Act, 2002, and the appellants had access to legal advice. The 
trial judge concluded that the detention orders imposed by the Reading Crown 
Court fell squarely within the terms of Article 5(1)(b) of the ECHR and further, 
the Charter afforded no additional protection insofar as the rights to liberty and an 
effective remedy were concerned. 
15. Accordingly, [the Irish High Court judge] was satisfied that surrender was 
not prohibited by Part 3 of the 2003 Act or any other provision of that Act. An 
order for surrender to the UK in respect of each of the three appellants was made 
pursuant to s[ection] 16(1) of the 2003 Act. 
The Appeal 
16. The appellants were granted leave to appeal to the Supreme Court on 5 June 
2024 ([2024] IESCDET 64). 
17. The appeal came before the Supreme Court on the 16 July 2024. Having 
heard the parties on whether the issue was acte clair, the Supreme Court ruled that 
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the appeal raised an issue about the interpretation of the provisions of Title VII of 
the Trade and Co-operation Agreement and in particular Article 625(2) which it 
was appropriate to refer pursuant to Article 267 TFEU. 
The arguments of the parties at the appeal 
1[8]. At the hearing, the appellants contended for an autonomous meaning of the 
word ‘offence’ in Article 625(2). The appellants accept that in the UK contempt 
proceedings are not viewed as constituting criminal offences but argue that this 
characterisation is not determinative and that on an autonomous view of the nature 
of the offence and the sentence imposed it was criminal in nature. 
1[9]. In contending for an autonomous interpretation of ‘offence’ for the purposes 
of EU law, the appellants submit that as the specialty provisions of Article 625 of 
the TCA were adopted to protect the fair trial rights under Article 47 of the 
Charter of those surrendered out of the Union, this Court must interpret the TCA 
and the definition of “offence” therein in light of the Charter. The appellants 
further rely on Article 52(3) of the Charter in support of their contention that the 
caselaw of the ECtHR must be followed by this Court when interpreting the 
meaning of ‘offence’ in Article 625 TCA and s[ection] 22 of the 2003 Act. The 
appellants rely on jurisprudence of the ECtHR, which applies an autonomous 
definition to the phrase ‘criminal charge’ for the purposes of engaging Article 6, 
independent of the categorisations employed by the national legal systems of 
contracting states. 
[20]. In particular, the appellants rely on the decision in Engel & Ors v 
Netherlands (App nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72) (1976) 1 
EHRR 647 and the three criteria articulated therein at para[graph]s 82-83 for the 
purposes of ascertaining whether an individual is the subject of a ‘criminal charge’ 
within the meaning of Article 6(1) of the Convention: 
“[I]t is first necessary to know whether the provision(s) defining the offence 
charged belong, according to the legal system of the respondent State, to 
criminal law, disciplinary law or both concurrently. This however provides 
no more than a starting point... 
The very nature of the offence is a factor of greater import...  
However, supervision by the Court does not stop there. Such supervision 
would generally prove to be illusory if it did not also take into consideration 
the degree of severity of the penalty that the person concerned risks 
incurring.” 
2[1]. The appellants state that the first criterion of domestic classification serves 
only as a starting point for the Court’s analysis. They submit that the second and 
third criteria are “alternative and not necessarily cumulative”, and it may be 
sufficient for the purposes of Article 6 to find that an offence is, by its nature, 
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‘criminal’ from the point of view of the Convention, or that it renders a person 
liable to a sanction which belongs generally to the ‘criminal’ sphere (citing Lutz v 
Germany (App no. 9912/82) 19 EHRR 182 87/16, para[graph] 55). The appellants 
note that while contempt of court proceedings are usually considered by the 
ECtHR to fall outside the ambit of Article 6 because they are more akin to the 
exercise of disciplinary powers, the nature and severity of the penalty for 
contempt can render such an offence capable of attracting Article 6 protections 
(Kyprianou v Cyprus (App no. 73797/01) (2007) 44 EHRR 27). The appellants 
cite the case of Benham v United Kingdom (App no. 19380/92) (1992) 22 EHRR 
293, in which it was held that notwithstanding the classification of a failure to pay 
poll tax as a ‘civil’ offence, the applicant had been charged with a criminal 
offence for the purposes of engaging the protections Article 6. Similarly, it is 
contended that the meaning of ‘offence’ for the purposes of the TCA requires the 
adoption of the Engel criteria and an autonomous interpretation as a matter of 
Union law. It is submitted that s[ection] 22 of 2003 Act cannot be construed as 
permitting the UK to determine what constitutes an offence by reference to its 
own domestic law for the purpose of specialty. 
2[2]. The respondent argues that the Article 6 issue is not an appropriate 
comparator. The ECHR represents an agreement between contracting states that 
there will be certain fair trial rights where criminal charges are at issue and 
therefore it is necessary to have a common understanding of what is meant by a 
criminal offence. The surrender provisions of the Framework Decision and of the 
TCA are entirely different. The importance of the identification by an individual 
state as to whether acts constituted a crime or not is reflected in the fact that dual 
criminality must be established for offences which do not come within the list 
offences in Article 2 para[graph] 2 Framework Decision and Article 599 
para[graph]s 3 and 4 TCA. The respondent submitted that the importance of the 
classification of the acts in either the issuing state or the executing state is also 
vital to the operation of the rule of specialty. 
2[3]. Without conceding the point, the respondent recognises that if the word 
‘offence’ should be afforded an autonomous meaning under EU law when applied 
to the rule of specialty, then application of the final part of the Engel criteria may 
be problematic from the respondent’s point of view, given that it would appear to 
indicate that the proceedings here involved the determination of a criminal charge. 
This is because a six month sentence, although only three months thereof will be 
served, is longer than any other period of deprivation of liberty which the ECtHR 
has accepted as not amounting to a criminal charge. 
The Decision to Refer 
2[4]. This appeal raises an issue about the interpretation of the provisions of Title 
VII of the Trade and Co-operation Agreement and in particular Article 625(2) that 
necessitated a referral in circumstances where, to the best of the knowledge of the 
parties and this Court, that issue has never been decided by the Court of Justice. 
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This Court views the case as raising important questions as to the application of 
the rule of speciality (whether provided by Article 625 TCA or Article 27 
Framework Decision) where the issuing state’s law does not characterise the 
conduct giving rise to a deprivation of liberty as a criminal offence or the 
proceedings leading to such deprivation of liberty as criminal proceedings. This 
Court considers that this issue could arise in the context of contempt of court 
provisions in other jurisdictions (especially in other common law jurisdictions) 
which may permit a deprivation of liberty (whether for coercive or punitive 
reasons related to a failure to comply with a court order) in circumstances where 
that jurisdiction does not categorise the deprivation of liberty as arising from a 
criminal conviction or the conduct giving rise to the deprivation of liberty as 
amounting to a criminal offence. 
2[5]. This Court considers that the surrender provisions of the TCA and the 
Framework Decision are directed towards surrender for the purpose of criminal 
prosecutions and the serving of criminal sentences/detention orders. This is 
apparent from, for example, the references to criminal prosecution within Article 
598(a) TCA and Article 1.1 Framework Decision. It follows that the reference to 
‘custodial sentence/detention order’ in those Articles must be sentences/detention 
orders consequent on criminal prosecution and conviction. It is therefore apparent 
that the reference in Article 599(2) [TCA] and Article 2(4) Framework Decision 
to “offence” can only mean a criminal offence under the law of the executing 
state. Those sub-paragraphs deal with the establishment of double criminality for 
certain offences (those not subject to the list of offences set out in Article 599(3) 
TCA and Article 2(2) Framework Decision) in which the acts must amount to 
criminal offences in both the issuing state and the executing state. Thus, for the 
purposes of establishing double criminality, it appears that ‘offence’ cannot be 
given an autonomous meaning but must depend on the law of the relevant member 
states. 
2[6]. The rule of speciality does not provide an absolute bar against a person 
being proceeded against for previous offences or previously imposed 
sentences/detention orders after surrender to the issuing state Article 625(3) and 
(4) TCA and Article 27(3) Framework Decision provide for the circumstances in 
which prosecution can take place which includes where the consent of the 
executing judicial authority is granted. However, the possibility of seeking such 
consent for the imposition of the penalty of deprivation of liberty will not arise 
where the ‘offence’ is not regarded as a criminal offence within the definition of 
the law of the issuing state. Where the sentence or deprivation of liberty has been 
lawfully imposed in the issuing state, the rule of law in that state may require that 
such sentences are to be served in the issuing state. On the other hand, it is also 
important to ensure that any deprivation of liberty is compliant with the rule of 
law in the executing state and that law may prevent surrender for offences, which 
are criminal according to the law of the executing state, other than those on the 
TCAW. Moreover, constitutional and other international obligations may prohibit 
surrender where a person will be subject to a deprivation of liberty which has 
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followed procedures which prima facie at least may violate fundamental rights to 
fair trial and an effective remedy. 
2[7]. This Court is satisfied that there are no grounds to doubt the accuracy of the 
statement in the TCWA that, as a matter of UK law, that this breach of the 
restraint order does not amount to a criminal offence. Therefore, the starting point 
for further consideration of this matter is that, as a matter of UK law, none of 
these appellants will be required to serve a sentence of imprisonment in respect of 
a criminal offence if surrendered but they will nonetheless be liable to be 
imprisoned for six months in respect of the contempt of court. 
2[8]. In Ireland the law of contempt is described as ancient; as old as the common 
law itself. It is seen as a bedrock of the rule of law. It is well recognised in this 
jurisdiction that there is a distinction between civil and criminal contempt. In 
general, civil contempt, in the form of breach of court orders, is coercive in 
purpose; its purpose is to ensure that parties to proceedings or those with notice of 
courts’ orders obey and abide by those orders. In general, the purpose of criminal 
contempt is to be punitive in motive; it is to uphold the law generally and the 
authority of the courts. Historically, criminal contempt was most often found in 
cases of egregious behaviour in facie curiae. Importantly however, it has been 
recognised by the Supreme Court that in certain limited and specific cases of civil 
contempt there can be a punitive element where the conduct or behaviour of the 
person, in addition to having an inter partes element, is grossly offensive to the 
administration of justice and requires vindication of the authority of the court. 
2[9]. While this Court accepts that, like in the UK, there may be situations of civil 
contempt of court where definite periods of imprisonment may be imposed for a 
purpose other than purely coercive, this Court has not heard sufficient argument 
from the parties to decide whether, in similar circumstances to those applying in 
the UK, this contempt of court would be considered criminal or civil contempt. 
That issue may not need to be decided in this case if, in answer to our questions on 
this preliminary reference, the Court of Justice decides that for the purposes of 
Article 625(2) TCA, ‘offence’ is to be given an autonomous meaning or a 
meaning within the law of the issuing state only. 
[30]. In the present case, this Court is satisfied that in so far as these appellants 
were dealt with by Reading Crown Court in respect of the Restraint Orders, the 
full extent of procedural rights required by Article 6 and Article 13 of the 
Convention was provided to each of them. They were dealt with before an 
independent and impartial tribunal, they were notified of the ‘charge’ against 
them, they were notified of the time and place of the hearing, they were legally 
represented and they had a right to appeal. As to a right to an effective remedy in 
the issuing state, these appellants had open to them the possibility of an appeal 
against the sentence. 
3[1]. It is in those circumstances that this Court seeks the opinion of the Court of 
Justice on the questions listed below. 
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The Questions Referred 
1. Do the provisions of Title VII of the Trade and Cooperation Agreement 
dealing with ‘Surrender’ apply only to criminal prosecutions and/or 
custodial sentences/detention orders imposed in respect of criminal 
offences? 
2. In Article 625(2) TCA, which provides that except for cases covered by 
para[graph]s 1 and 3 of Article 625 “a person surrendered may not be 
prosecuted, sentenced or otherwise deprived of liberty for an offence 
committed prior to that person’s surrender other than that for which the 
person was surrendered”, does ‘offence’ mean (1) a criminal offence as 
defined by the law of the issuing state or (2) a criminal offence as defined by 
the law of the executing state or (3) does it have an autonomous meaning in 
European Union law? 
3. If ‘offence’ in Article 625(2) TCA bears such an autonomous meaning, what 
are the criteria for determining what constitutes such an ‘offence’? 
4. Are Article 47, Article 48, Article 49 and Article 50 of the EU Charter of 
Fundamental Rights (which refer to ‘effective remedy/fair trial’ (Article 47), 
‘charged’ (Article 48), ‘criminal offence’ (Article 49) and ‘criminal 
proceedings for an offence’ (Article 50)) and/or Article 6 and Article 13 of 
the European Convention on Human Rights (which refers to “any criminal 
charge” and “effective remedy”) of relevance in that context? 
5. Does Article 625(2) TCA preclude surrender in a situation where a person 
has been sentenced to 6 months deprivation of liberty for a contempt of 
court but where surrender has not been sought for the purpose of serving that 
sentence because the law of the issuing state classifies the contempt of court 
as civil contempt and does not consider it to constitute a criminal offence or 
matter?