Case C-202/24

Alchaster I 

CJEU Case C-202/24 (Alchaster)

Background to the Proceedings

A district judge at the Magistrates’ Court of Northern Ireland issued arrest warrants against MA in connection with terrorism offences. The United Kingdom sought MA’s surrender from Ireland. MA resisted surrender on the ground that it would breach the principle of legality protected by Article 49(1) of the Charter of Fundamental Rights of the European Union, which prohibits the retroactive imposition of a heavier penalty than the one applicable at the time the offence was committed.

MA’s argument rested on a change made to the United Kingdom’s parole regime for terrorist offenders. Under the law in force at the time of the alleged offences, a person sentenced to a determinate custodial term under Article 8 of the Criminal Justice (Northern Ireland) Order 2008 would have been entitled to automatic release on licence once half of the sentence had been served. Section 30 of the Counter-Terrorism and Sentencing Act 2021 inserted a new Article 20A into the 2008 Order. Under Article 20A, a person convicted of a relevant terrorist offence is no longer automatically released at the halfway point. Instead, release on licence is only available once two-thirds of the sentence has been served, and even then only following an assessment by the Parole Commissioners. MA argued that applying this regime to him, given that the offences he was accused of predated the 2021 amendment, would amount to the retroactive imposition of a heavier penalty than that which applied when the offences were allegedly committed. In the domestic UK context, the Supreme Court had already considered a similar argument in Morgan v Ministry of Justice and had held that the change was compatible with Article 7 of the European Convention on Human Rights, on the basis that it affected only the execution of the sentence and not its underlying scope.

The Irish Supreme Court was uncertain whether the domestic UK ruling in Morgan was sufficient to satisfy the requirements of the EU Charter in the context of a TCA surrender, and referred the matter to the CJEU under the preliminary ruling procedure, given that MA remained in detention pending the outcome.

Alchaster I: Case C-202/24

The first reference asked, in substance, whether an executing judicial authority in a member state could rely on assurances that the United Kingdom is a party to the European Convention on Human Rights and gives effect to it domestically, without needing to conduct any further inquiry, when deciding whether surrender under the TCA would breach the Charter.

The CJEU’s ruling addressed two distinct issues.

First, on the scope of review. The Court held that because the United Kingdom is now a third country rather than an EU member state, the principle of mutual trust that ordinarily underpins surrender between member states under the European Arrest Warrant framework does not apply in the same way to surrenders under the TCA. An executing judicial authority in a member state cannot simply presume that a TCA surrender complies with the Charter on the basis of the UK’s ECHR membership. It must instead carry out its own independent assessment of whether surrender would expose the person concerned to a real risk of a breach of their Charter rights, in particular the rights protected by Article 49(1). That assessment may only lead to a refusal to execute the arrest warrant where, having regard to the individual’s specific circumstances, there is objective, reliable, specific and properly updated information establishing substantial grounds for believing there is a real risk of such a breach. A merely theoretical or speculative risk is not sufficient.

Second, on the substantive Article 49(1) question. The Court considered whether a change to the rules governing release on licence, applied after the commission of the offence but before sentencing or release, is capable of breaching the principle that no heavier penalty may be imposed than the one applicable at the time the offence was committed. The Court adopted the approach developed by the European Court of Human Rights in Del Rio Prada v Spain, which had also been applied by the UK Supreme Court in Morgan. That approach draws a distinction between the imposition of a penalty and the execution of a penalty. A change to the arrangements governing execution of a sentence will only be incompatible with Article 49(1) of the Charter if it retroactively alters the actual scope of the penalty that was provided for on the day the offence was committed. It will not be incompatible merely because it delays the point at which a person becomes eligible for release on licence. On this basis, the Court indicated that a change of this kind, without more, will generally concern the execution of the sentence rather than its substantive scope.

Alchaster I therefore established the framework that executing authorities in EU member states must apply to all TCA surrender requests from the UK: an independent, evidence based assessment of Charter compliance, applying a real risk test, and a legal distinction between changes that redefine a penalty and changes that merely affect how a penalty already imposed is carried out.