Minister for Justice v Mohamed

THE HIGH COURT [2026] IEHC 208 BETWEEN Record No 2025 20 EXT MINISTER FOR JUSTICE APPLICANT v. YUSUF BEN MOHAMED RESPONDENT JUDGMENT of the Hon. Mr. Justice Patrick McGrath delivered on the 16 March 2026 1. The applicant seeks an order pursuant to section 16 of the European Arrest Warrant Act, 2003 (as amended) [‘the 2003 Act’] for the surrender of the Respondent to Northern Ireland on foot of a Trade and Co-Operation Agreement warrant (‘TCAW’) issued by District Judge George Connor sitting at Laganside Magistrates Court and dated the 17 January 2025. 2. The Respondent is sought for the purposes of being prosecuted for three offences being:- a. Cultivation of cannabis plants contrary to Section 6(1) and (2) of the Misuse of Drugs Act, 1971; b. Possession of a Class B controlled drug, namely herbal cannabis, contrary to Section 5(3) of the Misuse of Drugs Act, 1971; and c. Dishonest and unauthorised use of electricity, contrary to Section 13 of the Theft (Northern Ireland) Act, 1969. 1 3. The particulars of the offences alleged are set out at paragraph (e) of the TCAW. The Respondent is alleged to have been involved in the cultivation of cannabis at a ‘grow house’ in Pomeroy, County Tyrone in 2019 and is alleged to have illegally diverted power from the electricity grid for such purposes at the address. 4. The TCAW was issued by Mr George Conner, a ‘judicial authority’ in the United Kingdom within the meaning of s. 10 of the 2023 Act. 5. No issue is taken in relation to identity, and I am satisfied the Respondent is the person named in the Warrant. 6. I am satisfied that none of the matters referred to in sections 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the 2003 Act”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections. 7. The offences alleged in the TCAW carry maximum penalties of 14 years imprisonment (the two offences under the Misuse of Drugs Act, 1971) and 5 years imprisonment (the Theft Act offence). The minimum gravity requirements as set out in s38 of the 2003 Act are therefore met. 8. The TCAW is issued in accordance with Article LAW.SURR.112 of the Trade and Co-Operation Agreement. It is therefore necessary to demonstrate correspondence in accordance with s. 38 of the 2003 Act. 9. Section 5 of the 2003 Act provides:- ‘For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the law of the state, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State’. 2 10. The relevant principles for showing correspondence are now well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence – Minister for Justice v Dolny [2009] IESC 48 11. No issue is taken by the Respondent in relation to correspondence. I am, in any event, satisfied that the acts or omissions that constitute the offences on the warrant correspond with offences in Ireland, including: a. Cultivation of controlled substances contrary to s. 17 of the Misuse of Drugs Act, 1977 (as amended) [‘the 1977 Act’]; b. Possession of controlled drugs for the purposes of sale and/or supply contrary to s. 15 of the 1977 Act; c. Possession of controlled drugs contrary to s. 3 of the 1977 Act; and d. Dishonest use of electricity without authority contrary to Section 15(2)(a) of the Energy (Miscellaneous Provisions) Act, 1995 as inserted by Section 5 of the Energy (Miscellaneous Provisions) Act, 2012. Grounds of Objection 12. The Respondent objects to extradition on the ground that to surrender him to Northern Ireland would expose him to a real risk of inhuman and degrading treatment on account of his religion and the prevailing conditions of detention in that state, to an extent as would be incompatible with his rights under Articles 3 and 9 of the European Convention on Human Rights and Section 37(1) of the 2003 Act. 13. The Respondent further submits that his surrender would constitute a disproportionate interference with his personal and family rights under the Constitution and the Convention and ought therefore be refused by this Court under s. 37 of the 2003 Act. 14. The Respondent correctly submits that where, as in this case, a section 37 objection is made in the context of complaints in relation to prison conditions, the principles set out by the Supreme Court (Denham J.) in Minister for Justice v Rettinger [2010] 3 I.R. 783 apply. 3 15. He is however incorrect where he submits that that two-step test identified by the CJEU in Aranyosi & Caldaru C – 404/15 and C – 659/15 applies where such conditions are raised in the context of a TCAW seeking surrender to the United Kingdom. 16. Following the Judgment of the CJEU in Alchester No. 1 (Case C-202/24, Alchaster [2024]) the court cannot apply the presumption of mutual trust and confidence when considering objections to surrender to the United Kingdom on foot of a TCAW. Where objections to surrender to the UK on the grounds of a real risk of breach of fundamental rights are made then, as stated by me in Minister for Justice v Fawl [2025] IEHC 168:- ‘23. Where objections are raised to surrender to the United Kingdom on the basis that, if surrendered to the United Kingdom on foot of a TCAW, there would be a real risk of a breach of fundamental rights, then the Court must not adopt the two stage test as set out in Aranyosi & Caldaru, as such a test only applies because of the system of mutual 7 confidence and trust which applies under the Framework Decision and the United Kingdom is no longer a part of the EU and the Framework Decision. 24. A one step test applies which requires an evaluation, without any reference to the presumption underlying the operation of the Framework Decision, of all the circumstances in the individual case in order to consider whether there are valid reasons for believing that that person would run a real risk to the protection of his or her fundamental rights is surrendered to the United Kingdom. 25. In the course of considering an objection to surrender to the USA made on the grounds of a risk of inhuman and degrading treatment, in AG v Martin Wall [2022] IECA 42, Donnelly J explained the approach to be adopted in the following terms :- ’18. The principles on which a court in this jurisdiction must act in cases of surrender under the 2003 Act were authoritatively set out by the Supreme Court in Rettinger and have become known as the Rettinger principles. In a case where a requested person claims that he will be at real risk of being subjected to inhuman and degrading treatment on extradition, the burden is on him to adduce evidence that there are substantial/reasonable grounds 4 for so believing that if he is returned he will be exposed to a real risk of being subjected to such prohibited treatment. The Rettinger principles, themselves a reflection of principles in the leading European Court of Human Rights (“ECtHR”) case of Saadi v. Italy (App. No. 37201/06) (2009) 49 EHRR 30 apply to extradition requests as well as to EAWs. This was most recently stated by the Supreme Court in the case of Attorney General v. Davis where, having considered whether there was a difference between the Rettinger principles and those gleaned from Saadi v. Italy, McKechnie J. said: “Accordingly, it is the… Rettinger…principles, as subsequently explained and adapted in Attorney General v. O'Gara…and Attorney General v Marques [2015] IEHC 798…in relation to extradition to the U.S, which form the applicable test in an [A]rticle 3 situation: the question, as stated, is whether the evidence establishes that there is a real risk that, if surrendered and extradited, the proposed extraditee will be subjected to torture or inhuman or degrading treatment. This test applies where the objection raised is based on 8 what is prohibited by that provision, […] As one can never be definite regarding future events, the aim of the exercise is to measure risk. This requires a factspecific inquiry conducted in part against known facts and in part against future events. The matters for consideration will inevitably be particular to the person concerned and may range over an extensive area; likewise in relation to the prison conditions, and perhaps even in respect of the legal and judicial regimes of his intended destination. The exercise so conducted should and must be as thorough as the facts and circumstances demand.” 19. A point to note is that McKechnie J. referred to the fact that some authorities use “substantial grounds” (the language of Saadi v. Italy) while other authorities use “reasonable grounds” (the language of legislation). He opined that, given the difficulty in obtaining evidence, he preferred the latter although there may be no difference between the two. Of particular significance to the issue in the present case is the fact that McKechnie J. identified the aim of the exercise as being to measure risk: measuring the downstream risks to this appellant is therefore vital 20. The Rettinger principles state that a requesting State may dispel any doubts by evidence, but this does not mean that the burden has shifted. The principles emphasise 5 that a court has to be forward-looking in assessing the foreseeable consequences of sending the person to the requesting State, and that the mere possibility of ill treatment is not sufficient.’ 26. As stated in previous cases where this issue was raised it is my opinion that the general approach outlined by Donnelly J in Wall is, with one modification, compatible with the approach to such matters as outlined by the CJEU in Alchaster. That one modification arises from the observations by that Court at paragraph 80 of Alchaster. Although the principles of mutual confidence and trust do not apply when considering objections in the context of a TCAW warrant, this Court must nonetheless approach fundamental / human rights objections to surrender to the United Kingdom cognisant of it being a party to the European Convention on Human Rights, its long standing respect for the protection of fundamental rights as set out in that Convention and the provisions in place in UK law to ensure the protection of such rights and freedoms.’ 17. In considering the objections raised by the Respondent the Court will not therefore adopt the two-step test as set out in Araynosi & Caldaru. The court will consider the facts and circumstances in this individual case and assess whether, bearing in mind the presumption of good faith and the fact that the United Kingdom is a party to the European Convention on Human Rights, this is a case where it has been shown that there is a real risk of a breach of the rights of the Respondent if surrendered to that State. Prison Conditions 19. The central complaint raised in this regard by the Respondent is that, if surrendered and detained in prison in Northern Ireland, there is a real risk of a breach of his right to practice his Islamic faith. 20. The Respondent has put before this Court a report of the 9 February 2026, prepared by Professor Javid Rehman of Brunel University, London. Professor Rehman repeatedly cites ‘The Lammy Review’ but, as pointed out in the Ministers submissions, this was a review by Mr David Lammy (now Deputy Prime Minister of 6 the United Kingdom) on behalf of the previous Conservative Government whose terms of reference consisted of: - ‘Terms of reference 1. An independent review to consider the treatment of, and outcomes for, BAME individuals with the criminal justice system in England and Wales’ 21. The references made to and reliance upon the Lammy Review do not support the contentions made by this Respondent in relation to what might occur in Northern Ireland prisons. It does not support the core submission by Professor Rehman at paragraph 45 of this report in this case where he states:- ‘Muslim prisoners within the United Kingdom including Northern Ireland continue to complain about overarching systemic discrimination within the prison structures’ 22. Furthermore, the Respondents claim is not borne out by any objective analysis of the National Preventative Mechanism Report on Maghaberry Prison upon which he also relies. At paragraphs 3.32 to 3.35 of the 2023 Report, whilst dealing with ‘faith and religion’, it is indicated that in relation to the four outcomes upon which prisons are graded in the category for ‘Respect’ the rating for Mahagaberry remained reasonably good even though there was an acknowledgment of an insufficient holding of communal prayers for Muslim prisoners. 23. The Minister refers to a document entitled ‘Guidance by the Attorney General for Northern Ireland pursuant to Section 8 of the Justice (Northern Ireland) Act, 2004 No. 5 Human Rights Guidance for the Northern Ireland Prison Service Conditions of Imprisonment’. 24. This guidance document, in accordance with the requirements of Northern Ireland law, was laid before the Northern Ireland Assembly and commenced on 9 June 2014 as S.I. 132 of 2014. It is specifically said to be prepared without prejudice to the requirement on all public bodies in Northern Ireland to comply with their obligation 7 under section 6 of the Human Rights Act, 1988. It addresses freedom of religion for prisoners as follows:- ‘5. A prisoner’s freedom of thought, conscience and religion should be respected; 6. A prisoner’s freedom to practice his or her religion should be respected to the extent that it does not interfere with the rights and freedoms of other prisoners. Restrictions on the religious practices or observances of prisoners should only be applied where necessary to protect the interests of order within the prison, public health, safety or decency; 7. In order that a prisoner may enjoy freedom to practice his or her religion, accurate records of the religious allegiance of each prisoner should be maintained; no disciplinary action should be taken against a prisoner who does not disclose his or her religious allegiance. A prisoner may require that the record of his or her religious allegiance be changed and the governor shall record such a change unless there are grounds for considering that the asserted change is mischievous and does not reflect a prisoners actual allegiance. 8. Where a prisoner receives a visit from an ordained Minister from his or her denomination, including a prison chaplain, the confidentiality of that visit shall be repsected. 9. The right to religious freedom and conscience includes the right to possess religious or spiritual texts. A prisoners choice and possession of religious or spiritual texts should not be subject to restrictions save where these are necessary to protect the interests of order within the prison, public health, safety or decency’. 25. On the day of the hearing the Court received further information, namely a supplemental affidavit from the Applicant and attached exhibits. At exhibit YBM3 thereto was a statement from Imam Sheikh Anwar Mady, dated the 16 February 2026. For several years he had served as a Muslim chaplain in the prison service of Northern Ireland. He stated that during his period of service he observed ‘measurable development in the provision of religious services to Muslim inmates. Awareness and understanding of Islamic religious requirements among prison management, 8 chaplaincy colleagues or other denominations and operational staff improved over time. Engagement was generally constructive and efforts were made to accommodate religious practice within the constraints of the custodial environment. 26. He did go on to say that certain practical limitations existed and, due to distance and scheduling constraints, he could only conduct prayers on a two weekly or even monthly basis in some institutions. But when not physically present inmates were permitted to conduct congregational prayers and he assisted with online engagement and the provision of texts and religious materials. 27. He concluded in this role in September 2025 and is not therefore in a position to comment on the current provision of such services. The Respondent says that he is informed that this role remains vacant. 28. The evidence adduced establishes the following:- a. The United Kingdom is a state party to the European Convention on Human Rights and, in the absence of evidence to the contrary, this Court is entitled to assume that reasonable efforts will be made by the prison authorities in Northern Ireland to facilitate the Respondents practice of his Muslim faith if detained in a prison there; b. There is no independent objective evidence which would raise a concern that the authorities in Northern Ireland do not operate the prisons under their control in a manner which respects the religious beliefs and practices of prisoners of Muslim faith; c. The report of Professor Rehman does not support any concern that this individual will not be afforded respect for his religious practices if detained in a Northern Ireland prison; d. The laws of Northern Ireland, specifically SI 132 of 2014, set out a specific legal obligation on the prison authorities to act in a manner which respects the religious requirements and beliefs of those detained; 9 e. The statement of Imam Sheikh Anwar Mady provides clear evidence that the authorities in Northern Ireland facilitate Muslim prisoners in the practice of their faith. The fact that there may be a current vacancy in the role of Muslim prison chaplain does not give rise to any concerns in this regard. 28. I conclude therefore that the evidence all indicates that the prison authorities in Northern Ireland take all reasonable steps to facilitate the practice by Muslim prisoners of their faith. 29. Having considered the materials submitted by both the Applicant and the Respondent and bearing in mind the presumption of good faith that applies, as explained above, when considering the specific human rights objection raised by this applicant, I am of the view that the Respondent has failed to put evidence before the Court for me to conclude that there is any risk of a breach of his right to practice his Islamic faith if surrendered to Northern Ireland and detained in a prison in that state. 30. Applying the one step test to the individual facts and circumstances of this applicants case, without any reference to the presumption underlying the operation of the Framework Decision, there is therefore no reason to believe that there is any risk of a breach of this applicants right to practice or observe his religion if surrendered to Northern Ireland and detained in one of its prisons, including specifically Maghaberry Prison. Family and Personal Rights 31. He also claims that it would be a disproportionate interference with his family rights under Article 8 of the Convention and breach of Section 37(1) of the 2003 Act to order surrender. 32. The Respondent has sworn two affidavits in support of his objections. 33. The Respondent is 35 years old and was born in London where he lived under the age of six. He then moved to Ireland where he has since lived, attending primary and secondary school in Dublin. He runs a licence plate business in Bray. 10 34. He is a married man and the father of three daughters aged four, two and about three months. One of his children has issues in relation to her diet and weight and he believes he is the only person who can successfully encourage her to eat. 35. His wife has a history of postpartum depression as well as recurring physical health issues that resulted in her recent hospitalisation in St Vincent’s Hospital, Dublin. She has a further endoscopy appointment scheduled for this month in order to further investigate ongoing health issues. He says that she will require his presence and support in the immediate future given the uncertainty surrounding her health. She has been admitted to commence a Masters degree at UCD, due to commence this September but the Respondent claims she would be unable to attend and complete this course were he to be absent. 36. The Respondent is also the primary caregiver for his 64-year-old mother who lives alone. He spends a number of days per week at her home. She has to wear an ileoanal pouch following an earlier procedure and as result has considerable anxiety and is largely housebound. She also suffers from severe fibromyalgia and has had a motor cuff tear and thus finds it very difficult to accomplish many daily tasks. 37. It is well established that, for an objection of this nature to be sustained, a high threshold applies and cogent evidence must be presented which shows that the effect on the family/personal rights of the person whose surrender is sought is not merely well outside the norm for such cases but ‘truly exceptional.’. This high threshold has been repeatedly referred to in case law such as Minister for Justice v Ostrowski [2012] IESC 57 and Minister for Justice v Vestartas [2020] IESC 12. 38. There is no doubt that the surrender of the Respondent would lead to an interference, even a substantial interference, with his family rights and indeed the family rights of his family members. That is unfortunately a consequence of surrender in many extradition cases and cannot operate as a bar to surrender. 39. On the facts of this case the evidence before the Court does not suggest that the undoubted interference with the family/personal rights of the Respondent occasioned by his surrender will be well outside the norm let alone of a kind which is ‘truly 11 exceptional’ such as to engage Article 8 of the Convention and raise the question of whether surrender should be refused as being so disproportionate as to constitute a breach of the rights of the Respondent and thereby prohibited under s. 37 of the 2003 Act. 40. This ground of objection is therefore dismissed. Conclusion 41. I will therefore make an order for the surrender of the Respondent to Northern Ireland pursuant to s. 16 of the 2003 Act. 12