European Arrest Warrant
Cases
Minister for Justice, Equality and Law Reform v Puta
[2008] I.E.S.C. 29
JUDGMENT of the Court delivered the 6th day May, 2008 by Murray C.J.
Each of the appellants is the subject of a European Arrest Warrant: issued, in the case of the first appellant, by a judicial authority in the United Kingdom; in the cases of the second and third appellants a warrant, in each case, issued by a judicial authority in the Czech Republic. The High Court has made an order, pursuant to s. 16(1) of the European Arrest Warrant Act, 2003 (“the Act of 2003”), in each case, ordering the surrender of the appellant to a person duly authorised by the issuing state to receive him.
Each of the appellants commenced plenary proceedings in the High Court claiming a:
“Declaration that Council Framework Decision of 13th June 2002 was not properly ratified by the Oireachtas as required by the Constitution and/or that the European Arrest Warrant Act, 2003, as amended, which purports to reflect the Framework Decision is invalid and of no effect……”
The appellants claim that the Act of 2003 is repugnant to the Constitution. They contend that the Act was enacted without “the prior approval of both Houses of the Oireachtas,” as required by Article 29.4.6 of the Constitution. The High Court (Peart J) dismissed the claim in each case. The appellants now appeal.
The appellants are directly affected by orders made pursuant to the Act of 2003. They have the required standing to allege that the Act is invalid, by reason of having been enacted contrary to the provisions of the Constitution.
The people, by the Eighteenth Amendment to the Constitution, authorised the State to ratify the Treaty of Amsterdam of 1997. Article 29.4.5 of the Constitution, as so amended, provides:
“The State may ratify the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts signed at Amsterdam on the 2nd day of October, 1997.”
Article 29.4.6 provides:
“The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5° of this section and the second and fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Óireachtas.”
For the purposes of the present appeal, only the “options or discretions” provided by Article 1.11 of the Amsterdam Treaty are relevant. Article 1.11 of that Treaty amended Title VI of the existing Treaty on European Union (the Maastricht Treaty) by replacing that Title in its entirety. Title VI of the Treaty on European Union (“TEU”) is headed: “Provisions on Police and Judicial Cooperation in Criminal Matters.” That Title, as set out in the Treaty of Amsterdam, is divided into Articles enumerated K.1 to K.14. Article K.6 of Title 6 has become Article 34 of the Treaty on European Union includes the power, inter alia, for the Council of the European Union to adopt framework decisions.
Article 34 TEU reads as follows:
1. In the areas referred to in this title, Member States shall inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations.
2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:
(a) adopt common positions defining the approach of the Union to a particular matter;
(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect,
(c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union;
(d) establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Member States shall begin the procedures applicable within a time limit to be set by the Council……..
In exercise of the power conferred by in Article 34(2)(b), the Council adopted Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).
The Oireachtas enacted the Act of 2003 for the purpose, as its long title proclaims, of giving effect to the Framework Decision. Section 10 of the Act gives general effect to its provisions. It provides:
“Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—
(a) against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates, or
(b) on whom a sentence of imprisonment or detention has been imposed and who fled from the issuing state before he or she—
(i) commenced serving that sentence, or
(ii) completed serving that sentence,
that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.”
The Act of 2003, since it gave legal effect in the state to the provisions of the Framework Decision, necessarily had to have been enacted after the adoption of that measure. Article 29.4.6 of the Constitution required the prior approval of the Houses of the Oireachtas to the exercise by the State of any of the “options or discretions” provided for by Article 1.11 of the Amsterdam Treaty. Article 34 of the Treaty on European Union required a unanimous vote of the Council for the adoption of the Framework Decision. The government, exercising the executive power of the State within the Council, could not have participated in the adoption of the Framework Decision without the prior approval of both Houses of the Oireachtas.
On 11th December 2001, some seven months before the adoption of the Framework Decision, a proposal for the exercise of an option or discretion pursuant to Article 1.11 of the Amsterdam Treaty in the form of a draft Framework Decision was placed before the Houses. On 12th December 2001 the Minister for Justice, Equality and Law Reform proposed a resolution in Dáil Eireann in the following terms:
“That Dáil Eireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure: a proposal for a Council framework decision on the European arrest warrant and the surrender procedures between member states, a copy of which was laid before Dáil Eireann on 11th December.”
The front page of the document referred to in the resolution, a copy of which was laid before the Dáil, bore a date: Brussels, 10 December 2001. It was numbered COPEN 79 CATS 50. It was headed: “OUTCOME OF PROCEEDINGS, from: COUNCIL, on: 6/7 December 2001.” The subject was described as: “Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between Member States.” That page, together with its corrected version (called “corrigendum”), indicated that on 6th December fourteen delegations (from Member States) had agreed to the draft Framework Decision as it stood in the Annex. There were then fifteen Member States. It also contained a number of indications of “parliamentary scrutiny reservations” from several Member States including Ireland. Ireland was also noted as having made a declaration concerning the Central Authority and the meaning of the words “executing judicial authorities.”
The document annexed to that page contained a draft of the proposed Framework Decision. A footnote stated that “the English and other versions will have to be revised in the light of the French version, as French was the original language of the Draft.”
The Dáil resolution was agreed without a vote. A corresponding resolution was passed by Seanad Eireann on the same evening.
The Appellants’ Submissions
The written submissions on behalf of the appellants criticise the “apparent haste with which the process” in the two Houses of the Oireachtas was conducted. Only one hour was allowed for debate. The Seanad motion was moved and passed late at night. A number of members of the Houses complained that inadequate time was being allowed for consideration of such an important measure. The Minister acknowledged the time pressures involved, stating:
Time pressures can mean that proposals will be brought to parliaments for approval when negotiations at EU level are either still in train or just barely concluded.
The result is that the Dáil and Seanad are being asked to debate texts the “latest version” of which only became available yesterday. It is likely to be the final shape of the decision.
Third Pillar business is progressing in a way that will require us to look afresh at how we conduct business efficiently and effectively at EU level while facilitating the necessary level of oversight and scrutiny by the Houses of the Óireachtas.
The Court has been informed of cogent criticisms by academic writers and others of the hastiness of the parliamentary procedure and the inadequate time permitted for parliamentary scrutiny. However, Dr Michael Forde, Senior Counsel for the appellants, as is recorded in the judgment of Peart J, made it clear that he “was not attacking or impugning what the Oireachtas did on the 12th December 2001.” Peart J noted:
“The plaintiff accepts that what happened on that occasion is beyond reproach, and that the resolution which was passed approving the proposal then presented to each House of the Oireachtas was one properly passed.”
Dr Forde also accepted at the hearing of the appeal that he cannot ask this Court to question the procedures of the Houses of the Oireachtas. He does not, therefore, seek to challenge the validity of the resolutions passed on 12th December.
This very clear concession renders irrelevant an argument advanced by the Minister that the resolutions passed by the Houses of the Oireachtas were not justiciable.
Dr Forde argued for a distinction between legislation adopted, over many years, pursuant to the Treaty Establishing the European Community and that adopted pursuant to the Treaty on European Union. The former treaty predominantly concerned commercial matters. No prior legislative approval is required for State participation in the institutional machinery of the Communities. Regulations or, subject to certain conditions, directives may have direct effect in Irish law. The Treaty on European Union, on the other hand implicates the core of national sovereignty, extending, as it does, to the field of criminal justice. Before the State can participate within the Council of the European Union in the adoption of Framework Decisions, there must be compliance with Article 29.4.6. The purpose of that provision, Dr Forde argued, is to confer upon the adopted measures the immunity from constitutional challenge provided by Article 29.4.10.
Dr Forde referred to discrepancies or differences between the proposed or draft measure which the Houses approved on 12th December and the Framework Decision as adopted in June 2002 and given legislative effect by the Act of 2003. He says that the differences between the draft and the final version of the Framework Decision were so substantial that the Houses could not be said to have given their “prior approval” as required by Article 29.4.6 of the Constitution.
Dr Forde argued, in the alternative, for two approaches to evaluation of these differences. The first is to say that “prior approval” must be given by both Houses for the precise version ultimately adopted. It is not sufficient to approve an earlier draft. He submitted, as he had in the High Court, that nothing short of prior approval for the final text would satisfy the constitutional requirement. Even the slightest change would, consequently, signify that Article 29.4.6 had not been complied with. That provision did not permit the Houses of the Oireachtas to confer a broad mandate on the executive to negotiate in Council. The second approach is that the Framework Decision as adopted departed to a very significant extent from the draft version approved by the Houses.
It is common case that the draft proposal for a Framework Decision placed before the Houses on 12th December 2001 differed from that which was adopted unanimously by the Council on 13th June 2002. The document presented on 11th December had been described both as a proposal and as a draft. Since it is not in issue that the documents are different, it is appropriate to highlight the most significant divergences mentioned by Dr Forde. There are three.
There are two differences in the list of offences set out in Article 2 of the Framework Decision, which dispenses with the requirement of double criminality:
· “Trafficking in stolen vehicles” in the final version replaces “motor vehicle crime” in the draft.
· “Counterfeiting of currency”, in the draft, included only “the euro” but extends in the Framework Decision, as adopted, to any currency.
The Framework Decision is expressly stated to extend to Gibraltar, whereas the draft contains no mention of Gibraltar. Dr Forde submitted that, if it were permissible, by amendment to extend the scope of the Framework Decision to include Gibraltar, it would have been possible to extend it to cover any country in the world.
The appellants submit that the consequence of non-compliance with Article 29.4.6 is that the Act of 2003 is repugnant to the Constitution.
The Minister submits that there is no doubt that the Houses of the Oireachtas approved the State’s participation in the adoption of the Framework Decision, prior to its adoption and that it is the quality, and not the fact, of that approval that the appellant seeks to impugn. Whereas the Constitution required the Houses of the Oireachtas to approve the exercise by the State of an option or a discretion provided by or under, in the instant case, Article 1.11 of the Treaty of Amsterdam, it does not require the Houses to approve any text, document or proposal, but rather to approve the exercise by the State of an option or a discretion. The strict reading contended for by Dr Forde would involve reading words into the constitutional text that are not there. What is approved in advance will not necessarily be the finished product and it is always possible that something approved in advance may mutate before it is definitively approved. The Constitution permits the Houses to confer a broad mandate upon the State in this context, though the Minister does not contend that it has done so in this case.
The Minister contrasts Article 29.5.1 of the Constitution with the Article at present under scrutiny. The former provision requires that the actual text of “every international agreement to which the State becomes a party shall be laid before Dáil Eireann.”
The Minister says that Article 29.4.6 vests exclusive power in the Houses of the Oireachtas to approve the exercise of the options or discretions mentioned. In his written submissions he cites the judgment of this Court delivered by Murray C.J. in Curtin v Dáil Eireann [2006] 2 IR 556 for the purpose of drawing an analogy with the case of Article 35.4.1 of the Constitution concerning the removal of a judge from office.
The Minister relied on Curtin v Dáil Eireann and on the judgment of Murray J., as he then was in T.D. v Minister for Education [2002] 4 I.R. 259 at 337, for the proposition that, unless it was shown that there had been “clear disregard” by the legislative branch of government of its constitutional obligations in the exercise of a power, which the Constitution of Ireland exclusively confers upon it, the issue as to how the Houses of the Oireachtas reached their determination or the evaluation of the material they had before them when they did so is a matter reserved exclusively to them.
When the matter of the Framework Decision came back before the Oireachtas in the form of the bill which became the Act of 2003, it is evident that the Oireachtas accepted that the mandate it had conferred on the executive had been properly executed. If it had been otherwise, the Oireachtas could have refused to enact the legislation.
The Houses of the Oireachtas, in allowing the State, i.e., the executive arm of government to exercise the option provided for by Article 1.11 of the Treaty of Amsterdam, were not required to approve any particular text. The objective evidence of what was before the Houses of the Oireachtas discloses that it consisted of a proposed, not a final, Framework Decision, expressly stated to being subject to parliamentary scrutiny reservations by a number of Member States, including Ireland. The Houses assented to the exercise of the option or discretion in the full knowledge that they were not approving the definitive text of the Framework Decision. Mr Anthony Collins, Senior Counsel accepted on behalf of the Minister that the result could have been different if the Houses had given approval to what purported to be a final version of the Framework Decision.
The Minister strongly supports the following passage from the judgment of Peart J in the High Court:
“When one comes to the passing of the Act on the 28th December 2003 giving effect to the Framework Decision, the position is clear. On that occasion the members of the Oireachtas had the option to express any concerns which they might have had that the Framework Decision which they were being asked to give effect to by the passing of the proposed legislation was not one that had received their prior approval before it was adopted on the 13th June 2002. I have been provided with no evidence of what happened in the Oireachtas on the 28th December 2003, and in the absence of some evidence of a clear disregard for its constitutional obligations, this Court must and will assume that the Act passed is a constitutional Act and that any majority of members who voted for the legislation to be passed were satisfied and entitled to be satisfied that what they were giving effect to was substantially the same instrument which had been voted upon on the 12th December 2001. It is not for this Court to examine in minute detail, or indeed at all, any textual or indeed other differences between one text and another. This Court must assume that the Oireachtas was satisfied that the resolution which was passed by each House on the 12th December 2001 was the constitutionally mandated prior approval for the exercise of the option or discretion which was the Framework Decision being given effect to on the 28th December 2003.”
The Minister submitted that the variations between the draft approved by the Houses and the final version were neither substantive nor material. In particular, no material or substantive differences had been identified in respect of: the title and objectives pursued, the scope of the arrest warrant, the grounds upon which a State may decline to execute an arrest warrant, the time limits for execution and surrender, the rights of a person whose surrender is sought, the rules governing specialty and onward transmission of a surrendered person to a third State. In substance, the Minister submits, that, although parliamentary scrutiny reservations were made by a number of Member States and the draft still had to be submitted to the European Parliament for consultation, the documents before the Houses were in substance the same as the Framework Decision ultimately adopted.
The legal and Constitutional Issues
Article 29 is the article of the Constitution which governs generally the activity of the State in its international relations. The government is the organ of State charged with the exercise of that function. Article 29.4.1 provides:
“The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.”
Article 29, as successively amended on five occasions, has authorised the State to ratify the treaties adopted since Ireland’s accession in 1973 to the European Economic Community, as it then was. The Eighteenth Amendment of the Constitution, authorising ratification of the Amsterdam Treaty, constituted an innovation. Acting on foot of the first three amendments to the Constitution, the Government participated, without prior parliamentary control, in the activities of the European Communities and the European Union. Since the ratification of the Amsterdam Treaty of 1997 and Treaty of Nice of 2001, the Constitution mandates prior parliamentary approval for the exercise by the State of certain powers contained in those two treaties, described by the Constitution, in each case, as “options or discretions.”
The Houses of the Oireachtas, by means of prior approval, thus control the exercise by the Government of the executive power it exercises as a participant in the activity of the European Union as a polity via the Council of Ministers and in its relations with the governments of other Member States. A measure of parliamentary and, hence, democratic control of the exercise of State power is thus assured. This objective is consonant with developing ideas and concerns about the need to remedy a democratic deficit in the European institutions.
The exercise of that control in practice implicates relationships between political action, firstly, at the level of the Union, i.e. in the Council, and, secondly, at national level, i.e. in the two houses of the National Parliament established under Article 15 of the Constitution. The present case also raises, in a particularly direct way, the question of the appropriate level of judicial intervention in or scrutiny of those parliamentary procedures.
It is appropriate, in the first instance, to address the meaning of Article 29.4.6 of the Constitution, then to examine the relationship of that provision with relevant articles of the Treaty on European Union and, finally, to consider the appropriate level of judicial review or control of parliamentary action.
Article 29.4.6 requires prior approval for the exercise of the prescribed “options or discretions.” Two questions then arise. The first is the meaning of the expression “options or discretions.” The second concerns the level of detail or precision of the advance approval required. The latter is the matter which has been most debated in the present case.
As the Minister has argued, it is necessary to consider, in context, the relevant terms of Title VI of the Treaty on European Union as amended by the Amsterdam Treaty. Neither the expression, “options nor discretions” nor either of its constituent words, in the singular or the plural, occurs in the text of Title VI. It is clear that the expression cannot refer to the general statement of objectives of the Union (Article 29) or to the general statements of what common action is to include (Articles 30 and 31). Article 34(1) provides:
“In the areas referred to in this Title, Member States shall inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations.”
That provision clearly does not create any option or discretion. It imposes an obligation. On the other hand, each of the types of action which the Council is empowered to take, acting unanimously, and which are listed in Article 34(2) from (a) to (d) is preceded by the word, “may,” indicating discretion. That list includes the discretionary power of the Council to adopt framework decisions. Participation by the State in the adoption of the Framework Decision constituted the exercise by it of an option or discretion and was the reason that the Minister rightly considered it necessary to move the resolutions of the Dáil and Seanad which were passed on 12th December 2001.
Next, it must be considered whether the Houses of the Oireachtas were, as a matter of strict principle, required to give prior approval of the exact text of the measure which was ultimately adopted. The Houses gave prior approval for the exercise of an option or discretion. The option or discretion as expressed in Article 34(2)(b) of Title VI is conferred on the Council acting unanimously. Thus, the resolutions approved in advance the State’s participation, with other Member States in Council, in the adoption of the Framework Decision. That participation must be regarded as a process, to which it is intrinsic and inevitable that texts originally proposed will, through discussion and negotiation, undergo change and amendment. Change of texts is inherent in the process of lawmaking. The Houses of the Oireachtas are composed of parliamentary representatives of the people and will have been assumed by the framers of the constitutional amendment to be conscious of that fact of political life. As the Minister has pointed out, the constitutional text does not mention any particular text. Article 29.4.6 does not require prior approval of the exact text adopted.
It follows that the first submission made on behalf of the appellants fails.
That does not, however, conclude the matter. Compliance with the requirements of Article 29.4.6 represents an important constitutional check on the exercise of State power. As the Court has already emphasised, it introduces a measure of parliamentary control over the actions of the executive, which cannot, therefore, be ignored.
The Court is satisfied, in particular, that the participation by the executive arm of the State in the adoption by the Council of a framework decision or other measure mentioned in Article 34(2) of Title VI without complying with its provisions would represent defiance of a mandatory constitutional requirement. Any act of the Oireachtas enacted for the purpose of implementing the measure would constitute an attempt to validate unconstitutional action by the executive. For that reason, any such enactment would be repugnant to the Constitution and invalid. The same result would appear to follow if the prior parliamentary approval were expressly and strictly limited to the adoption of a specified text.
Nonetheless, Article 29.4.6 constitutes a parliamentary and, in practice political, and not a legal control over government action. It is for the members of the Houses of the Oireachtas to decide on the degree of authority they wish to confer on the executive to participate in the adoption of measures pursuant to Title VI. It is they also who must judge retrospectively whether their mandate has been observed, when called on to enact implementing legislation. They should be permitted to judge whether the measure adopted comes within the scope of the prior approval. That will be a matter of degree.
In the present case, the Houses of the Oireachtas had before them on 11th and 12th December 2001 a document describing itself as a draft Framework Decision and as a Proposal for a Council Framework Decision.
A significant number of small changes of a drafting type were made before the final version was adopted. None of these, as the Minister has submitted, affected the essential scheme of the proposal. There are no significant alterations to the objectives pursued, the scope of the arrest warrant, the grounds upon which a State may decline to execute an arrest warrant, the time limits for execution and surrender, the rights of a person whose surrender is sought, the rules governing specialty and onward transmission of a surrendered person to a third State.
Three particular changes have been highlighted by the appellants. The list of offences concerned with counterfeiting was extended to cover all currency, not simply the Euro. The item listed in Article 2 as “trafficking in stolen vehicles” was originally described as “motor vehicle crime.” Taking the offence of counterfeiting, the effect of the change is that counterfeiting currencies other than the Euro is not to include in the Framework Decision an offence which would not otherwise be covered, but to dispense from the requirement of double criminality. Under Article 1.1, any offence is covered which is punishable by at least twelve months imprisonment and comes within the scope of the Framework Decision. Article 1.4 permits Member States to require double criminality to be established, except in the case of those offences listed in Article 2.2.
Gibraltar, not having been mentioned in the draft, Article 33(2) provided that the Framework Decision was to “apply to Gibraltar.” Article 299 of the Treaty establishing the European Community provides that the Treaty applies to “the European territories for whose external relations a Member State is responsible.” In Case C-298/81 Gibraltar v Council [1993] ECR I-3605, Advocate General Lenz, interpreting that provision (previously numbered 227(4)) expressed the view that in “Community law,……Gibraltar is regarded as a European territory………for whose external relations a Member State (in this case, the United Kingdom) is responsible.” The Court did not deal with that point. The Treaty on European Union contains no provision corresponding to Article 299EC. Thus, whether that Treaty applies to Gibraltar is, at best, obscure.
The Court considers that, in the first instance, it is a matter for the Oireachtas, when called upon to enact implementing legislation, to evaluate any differences between the authority conferred by a resolution granting prior approval pursuant to Article 29.4.6 and the measure in whose adoption the State has participated pursuant to Article 34 TEU. The Houses of the Oireachtas constitute the National Parliament established under Article 15 of the Constitution. Article 29.4.6 confers on them exclusively the function of deciding whether to approve in advance the participation by the State in the adoption of specified European Union acts. Equally, it is in those Houses, together with the President, that resides the “sole and exclusive power of making laws for the State.”
In Curtin v Dáil Eireann, cited above, this Court noted at page 627 that “the Houses of the Oireachtas have the exclusive power to consider the passing of resolutions for the removal of a judge from office,” pursuant to Article 35.4.1 of the Constitution. The Court considered a number of authorities establishing the presumption of constitutionality accorded to legislation generally (Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413; Buckley and others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67; McDonald v. Bord na gCon [1965] I.R. 217 at p. 239; East Donegal Co-Operative Livestock Mart Ltd v. Attorney General [1970] I.R. 317); and resolutions of both Houses of the Oireachtas ( Goodman International Ltd. v. Mr. Justice Hamilton [1992] 2 I.R. 542). The Court concluded that “the courts must, in accordance with the principle of the separation of powers, exercise a significant level of judicial restraint when considering the exercise of that power.”
The Court addressed, at page 627, the need to “identify a standard by which the court can measure whether a designated organ of government is falling or is likely to fall short of its constitutional obligations.” The Court cited the judgment of Murray J., as he then was, in T.D. v Minister for Education [2001] 4 IR 259 at p. 337:
“I have already made the distinction between ‘interfering’ in the actions of other organs of State in order to ensure compliance with the Constitution and taking over their core functions so that they are exercised by the courts. For example, a mandatory order directing the executive to fulfill a legal obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a declaratory order as to the nature of its obligations could only be granted, if at all, in exceptional circumstances where an organ or agency of the State had disregarded its constitutional obligations in an exemplary fashion. In my view the phrase ‘clear disregard’ can only be understood to mean a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness.”
The Court, in Curtin, proceeded to apply the standard of “clear disregard” to the resolutions of the Houses of the Oireachtas proposing the removal of a judge from office in the following passage:
“The standard of “clear disregard” was used, in that case, in the somewhat different context of an order directed to the government to make provision for certain disadvantaged children. The legal basis for the adoption of this standard was, however, the fact that the matters at issue fell primarily within the executive province of government. The standard should also be applied, in the opinion of the court to the performance of the exceptional and sensitive function constitutionally assigned to one organ of government, the legislature, of removing of judges from office. It accords with the presumption of constitutionality.”
In the particular case, the plaintiff complained that the impugned resolutions proposed the establishment of a joint committee of the Houses of the Oireachtas with powers of investigation. The Court ruled as follows:
“Ultimately, this court could conclude that this provision was beyond the power of the Houses only if it was clear that it would be, recalling the dictum of Murray J., cited above, in “clear disregard” of the right of the applicant to the benefits of basic fairness of procedures and constitutional justice.”
Although the Curtin case was concerned with a quite different and very special power conferred exclusively on the Houses of the Oireachtas, the Court considers that the standard required to merit judicial intervention in parliamentary procedures, which it there laid down should be applied to the matters before the Court in the present case.
The Act of 2003 benefits, in any event, from the normal presumption of constitutionality. The resolutions of the Houses passed on 12th December 2001 benefit from the same presumption. It is the combined effect of the two actions which is at issue in the present case: in essence the implicit decision of the Oireachtas, at the time of enactment of the legislation, that it was satisfied that the terms of the Framework Decision fell within the scope of the prior approval comprised in the resolutions.
It follows from the fact that the resolutions of 12th December approved a draft proposal for a Framework Decision that the Houses approved any reasonable and usual drafting changes, amendments to improve and clarify the document. The question is whether the three changes mentioned constituted such significant departure from the approved text as to warrant the conclusion that the constitutionally necessary prior approval had not been given. The matter should be judged from the perspective of parliamentary bodies exercising parliamentary judgment and not from the point of view of hypothetical individuals who may be more or less affected by the enacted measure than they would have been in the terms of the draft. Looked at from that point of view, neither the change from “trafficking in stolen vehicles” to “motor vehicle crime” nor the inclusion of offences, which would have been covered by the Framework Decision in any event, in the list of offences for which Article 2.2 dispenses with the requirement of double criminality is, in the view of the Court, significant. The express application of the Framework Decision to Gibraltar, a territory for whose external relations, one Member State is responsible could not, in the view of the Court be regarded as an important change. It is patently wrong to suggest that acceptance of the inclusion of Gibraltar would imply the possibility of extension to countries throughout the wprld. The “area of freedom, security and justice” described in Article 29 is obviously confined to the Member States of the Union. Part of the legal basis for the adoption of the Framework Decision is Article 31(1)(b) which envisages “facilitating extradition between Member States.” In none of these cases could it be said that the Oireachtas or the Houses of the Oireachtas acted in clear disregard to Article 29.4.6 of the Constitution.
For these reasons, the Court is satisfied that the challenge to the constitutionality of the European Arrest Warrant Act 2003 is not well founded. The Court will order that the appeal be dismissed.
MJELR -v- Snela
[2008] IEHC 202 (20 June 2008)
Judgment of Mr Justice Michael Peart delivered on the 20th day of June 2008:
The surrender of the respondent is sought by a judicial authority in Germany on foot of a European arrest warrant dated 11th February 2008, and which was endorsed for execution by the High Court on the 24th April 2008. The respondent was duly arrested on the 25th April 2008 and as required was brought before the High Court from where he was remanded from time to time pending the hearing of this application for his surrender under s. 16 of the European Arrest Warrant Act, 2003, as amended (“the Act”).
No issue is raised by the respondent as to his identity, and I am satisfied that he is the person in respect of whom this European arrest warrant has been issued.
No undertaking is required in this case under s. 45 of the Act.
The respondent’s surrender is sought for the purpose of serving the balance of a seven years sentence in Germany following his conviction for offences which have been marked in the warrant as being within the categories of offences set forth in Article 2.2 of the Framework Decision, and as such are offences in respect of which double criminality/correspondence is not required to be verified.
There is no reason why the surrender of the respondent should be refused under sections 21A, 22, 23 or 24 of the Act, and I am satisfied also, and in the absence of any objection being raised by the respondent in this regard, that his surrender is not prohibited by Part 3 of the Act or the Framework Decision.
There is one issue only raised by the respondent. It is that the circumstances in which he left Germany following his conviction but before the final determination of his appeal against that conviction on a point of law are such that he is not a person who comes within s. 10(d) of the Act which provides:
“10.—Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—
(a) …
(b) …
(c)…
(d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she—
(i) commenced serving that sentence, or
(ii) completed serving that sentence, …” (my emphasis)
The factual basis for that submission is contained in an affidavit sworn by the respondent, and supported by an affidavit which has been sworn by the German lawyer who represented him in relation to the prosecution which led to his conviction and sentence.
From the respondent’s affidavit it appears that he is a Polish citizen who left Poland and went to Germany in 2000 in search of work as a tiler. He says that while there he married a lady who died in 2005 while the respondent was in pre-trial detention awaiting his trial. He states that his Polish passport was issued to him in September 2002, but that in 2000 when he arrived in Germany he was permitted to reside there having been issued with a residence permit issued, which expired on the 23rd February 2003. The offences for which he was convicted were committed, according to paragraph (e) of the warrant, states that the offences for which he was convicted were committed between May 2002 and Easter 2003. He was arrested and put in pre-trial detention in November 2003. His conviction was on the 31st August 2005, following which he remained in detention. An appeal was lodged. According to German law, it appears that where an appeal is lodged any detention of the accused pending the determination of that appeal is categorised as still being ‘pre-trial detention’. There was considerable delay in the hearing of that appeal, and during that period of delay the respondent applied for his release on the ground that his continued delay pending his appeal was disproportionate. A Higher Regional Court in Germany ordered his release by order dated 17th August 2006, and this apparently was an unconditional release in the sense that, as we would be familiar in this country, there was no condition attached to that release such as might equate to bail or conditional release. His German lawyer has confirmed in her affidavit that this was the nature of the order made for his release. She has stated also that the only condition attached to his release was that he should have an address for correspondence to be sent to him in relation to his appeal. It would appear that the address given for correspondence was that of his lawyer since she has also stated that on the 19th March 2007 she received a letter notifying that he was required to go to prison following the determination of his appeal, and that she received a second such notification on the 6th August 2007.
The respondent relies on the unconditional nature of this release for his submission that following that release there was no restriction of other prohibition under German law which made it unlawful or otherwise prevented him from being free to leave Germany before his appeal hearing.
He states that following his release he no longer had any place to live, that his wife had by this time died, had no source of income, was homeless, and was unable to work in Germany as he had no work permit. By this time of course, Poland had acceded to the European Union in May 2004, and, as a Polish European Union citizen he would not have required a residence permit to reside in Germany provided, according to his German lawyer, he had enough means to support himself, which he did not since he did not have a work permit. He goes on to state that within days of his release he contacted the Immigration Office in Germany to request another residence permit. He says that this was refused and that he was given no reason for that refusal, but suspects that it was because of his conviction. He then states that he “was told that as Poland had recently acceded to the European Union, I could travel to any other European Union member state” and that he then informed that Immigration Office that he intended to leave Germany for Ireland, and that they did not object to that.
Thereafter the respondent contacted his brother who was living in Poland, but who then travelled to Germany and paid for a ticket for him to travel to Ireland. He arrived here on the 25th August 2006, having shown his passport in Berlin Shonefeld airport on leaving. On arrival here he again presented his passport to the Irish authorities on arrival here.
He states that the reason why he left Germany and came to Ireland was that he had been told that he could not work in Germany, and had no means to support himself in Germany having been refused a residence permit, and left therefore as an economic necessity. He knew other Polish people living here including two of his brothers, and on arrival here his brothers helped him. He has obtained work here, has obtained a PPS Number, and he has exhibited a copy of his P60 for the year ending 2006. He states that he has never sought to hide the fact that he was in this country, and that his work colleagues have been aware that he has been the subject of prosecution for the offences referred to in the warrant.
A significant matter to refer to also is that the evidence has been given to this Court following the arrest of the respondent by Sgt. James Kirwan, that at the time he was arrested the respondent stated that the reason why he had come to this country following his release from custody in Germany in August 2006 was that he felt safe here as this country was not part of the Schengen agreement. In his affidavit, the respondent has referred to this comment and accepts that he said this to Sgt. Kirwan. But he states also that this was not in fact the reason why he came to this country, and that he mentioned it because he believed that a European arrest warrant would not apply in Ireland because Ireland was not a party to the Schengen agreement.
Before this application came on for hearing the Central Authority here sought further information from the issuing judicial authority in relation to certain matters, such as how the sentence of seven years for the four offences for which he was convicted was actually divided in respect of each offence, and the circumstances in which the respondent’s release was ordered by the Higher Regional Court on 17th August 2006. There is reference also to an application for a ‘pardon’ by the respondent, but he submits that this application was in fact an appeal. Nothing turns on that distinction for the purposes of this application.
Mr Dwyer BL for the respondent has referred to the fact when the Higher Regional Court in Berlin released the respondent from his pre-trial detention pending the hearing of his appeal, there were no conditions attached to that release by way of bail or otherwise such that the respondent was not free to leave Germany and come to this country. He refers also to the averment by the respondent that upon his release and before coming here he contacted the Immigration Office and that he was told that he was free to leave, and that thereupon he was entitled to feel that he was free to leave Germany, and that accordingly he should be considered not to have “fled” as contained in s. 10(d) of the Act, in the same way as in the case of Minister for Justice, Equality and Law Reform v. Tobin, that respondent was found not to have broken any Hungarian law by leaving that country when he did. Mr Dwyer seeks to distinguish the present case from that of Minister for Justice, Equality and Law Reform v. Sliczynski
, ex tempore, High Court, 11th October 2007 in as much as in that case the respondent had left having been released on certain conditions, and by leaving he breached the conditions of same.
Mr Dwyer seeks to distinguish the present case also from the case of Minister for Justice, Equality and Law Reform v. Stankiewicz, unreported, High Court, 6th May 2008. In Mr Dwyer’s submission, the respondent in that case had simply made assertions of his own that he had breached no conditions by leaving Poland and coming to this country to seek work. There was no evidence adduced from a Polish lawyer to support his contention that he had not breached any condition of his release. In that case, the Court determined that the onus upon a respondent who raises this point of objection cannot be adequately discharged by mere assertion and in the absence of cogent evidence. Mr Dwyer refers to the supporting evidence from the respondent’s German lawyer who conforms that in this case the respondent was released without any conditions pending his appeal.
Mr Dwyer also distinguishes the present case from the case of Minister for Justice, Equality and Law Reform v. Dunkova, unreported, High Court, 30th May 2008, because, unlike that case, the present respondent received, according to himself, an assurance from the Immigration Office in Germany that he was entitled to leave Germany. Mr Dwyer asks this Court therefore to accept the respondent’s averments that he left Germany in order to seek work here since he was homeless following his release, was unable to support himself in Germany as his work permit had expired, and a renewal of his work permit was refused. In such circumstances, it is submitted that he cannot be deemed to have “fled” in the sense of that word as found in case of Minister for Justice, Equality and Law Reform v. Tobin, unreported, Supreme Court, 25th February 2008 at paragraph 31 of the unreported judgment.
James Dwyer B.L. submits that the evidence that he was permitted to leave having spoken to the Immigration Office is uncontroverted by the Applicant herein. He submits that this Court must have regard to the subjective fact of what was in the respondent’s own mind when he left Germany in determining whether in leaving he was doing so in order to “flee”, and that he has stated clearly that his intention was simply to gain employment. He submits that there is some objective evidence also which can support that state of mind in the form of the respondent’s averment that his work permit had expired and was not renewed, and the fact that he left Germany within days of his release, unlike a situation where a person may have spent some weeks or months in the country before leaving which would contradict the assertion that he left as he had no means of supporting himself.
Emily Farrell BL for the applicant responds to these submissions by submitting that there is no evidence adduced by the respondent as to which Immigration Office the respondent contacted and which, according to him, indicated that he was free to leave the country when he did, or what was the rank of the person there who told him this. She points also to the very different facts of the Tobin case where even the Hungarian Court accepted that the respondent breached no Hungarian law by leaving having entered into a financial bond for that very purpose. She refers to the fact that when Mr Tobin entered that bond the Hungarian Court was aware that he was leaving the country, and was also aware that if he did not return there was no extradition arrangement between Hungary and Ireland at that time under which he could be extradited back for the purpose of his prosecution. She submits that the Tobin decision must be seen as confined to the very particular facts of that case, and not extended to cover the circumstances of the present case. By contrast she submits that the respondent in his affidavit has accepted that in the event that his appeal was unsuccessful, he would be sought for surrender and required to serve his sentence. She submits that it would be incorrect for this Court to have regard simply to what the respondent states was in his mind by way of motivation to come to this country, i.e. to seek work, and in any event submits that the respondent’s statement to Sgt. Kirwan when he was arrested that he was under the impression that since Ireland was not part of the Schengen Agreement he was “safe” here, and that this statement should be seen as inconsistent with his own assertion now that this was not the real reason why he came here.
Ms. Farrell has referred to the judgment of this Court in Minister for Justice, Equality and Law Reform v. Ciobanica, unreported, High Court, 5th March 2008. In that case the respondent had left Romania after he had been arrested for an offence, attended court by arrangement for questioning and was then told that the case would be considered and was postponed to another date to be fixed. He then left Romania with his family. In that case I was satisfied that the respondent ‘fled’ Romania in the knowledge that a prosecution was under way against him. In so concluding I stated:
“First of all I am satisfied that the respondent has not established that he did not ‘flee’ in the sense of evading justice. He must be taken to have been aware prior to his departure from Romania that he faced prosecution in relation to the offence, given that he was stopped by the police in relation to this matter and that he had appeared before a court where he was questioned in relation to it. No affidavit of law has been adduced to the effect that at the stage of his questioning there was no prosecution process in being against him in accordance with the provisions of the Romanian Criminal Code of Procedure.”
Conclusion:
The only issue remaining to be decided in this case is whether the respondent is somebody who ‘fled’ Germany after he had been released from pre-trial custody on the 17th August 2006 pending the determination of his appeal. The affidavit from his German lawyer confirms that there were no conditions attached to his release which precluded him from leaving that country, and that if he wished to work in Germany at that time he would have needed a work permit. This latter averment supports to an extent the respondent’s own averment that his purpose in leaving was to seek work as without a German work permit he had no way of supporting himself. The respondent seeks support for his subjective state of mind in that regard from the fact that he spoke to somebody in some Immigration Office before he left and that he was told that as Poland had acceded to the European Union he could travel to any other EU member state, and that when he told this person that he intended to leave Germany he/she did to object to this. Against credibility in this regard, there is the undisputed fact that when he was arrested here by Sgt. Kirwan, he stated that he though he was safe here since Ireland was not part of the Schengen Agreement.
In my view the resolution of this issue cannot be achieved by reliance on the respondent’s assertion as to his intention to seek work, albeit that it is clear that he was unable to work in Germany without a work permit which had, according to him, been refused. The Court must also in this case have cause for doubting the credibility of even this subjective assertion in the light of his statement to Sgt. Linehan at the time of his arrest. That cannot be overlooked. But even without that statement, the Court must have regard to the overall circumstances of this case where the respondent has been convicted of an offence, sentenced to a period of imprisonment portion of which remains to be served, and to the fact that even though he was released from pre-trial detention on the basis that it was disproportionate to keep him in detention until his appeal was determined given the delay which had occurred, he was still aware that if his appeal was unsuccessful he would be required to serve that sentence. In such circumstances, even though there were no conditions attached to his release which specifically precluded him from leaving Germany, that fact alone does not mean that he was not evading justice by so leaving. There may well have been no reason why if he wished to do so he could not have left the country, for example even for a holiday, but that is not to be then taken as meaning that if he goes on holiday, and while there chooses not to return for his trial or an appeal, the making of such a choice does not turn his departure for a holiday into a flight from justice. To find otherwise would make a nonsense of the Framework Decision and its objective of securing the surrender of persons who are evading justice by fleeing the issuing state so that he is no longer amenable there to the judicial authorities.
There is a very strong presumption existing that where a person leaves the issuing state in the face of such a conviction and sentence and within days of his release from pre-trial detention, that he did so in order to avoid having to serve that sentence. This Court cannot in cases such as this simply take an averment at face value that when leaving, supposedly to seek work and make a better life for himself against a backdrop of either a conviction or conviction and sentence, he was not intending to flee in the sense of avoiding the consequences of such conviction/sentence. Respondents who are in such circumstances and who seek to rely on the judgment of this Court and that of Fennelly J. in the Supreme Court in Tobin are ignoring the existence of the so far, unique facts and circumstances of that case where the issuing judicial authority had specifically allowed the respondent to avail of a particular statutory provision of Hungarian law which enabled a person such as that respondent to enter into a financial bond involving a lodgement of cash which would be forfeited in the event that he did not return. The judicial authority was well aware that the respondent was intending to leave Hungary when he did, and facilitated that by returning his passport to him and allowing him enter that bond. The Court was also on record in that application as accepting that the respondent was free to leave when he did and that he breached no legal provision when he did. Added to that is the fact that at that stage Hungary had not acceded to the European Union, and since there were no extradition treaty arrangements in place between Hungary and Ireland, it was clear that the Hungarian Court was aware that his extradition could not be sought.
Those, as I have said, are, thus far, a unique set of circumstances which led a conclusion that the respondent had not ‘fled’ and was not therefore someone to whom s. 10 of the Act applied. The present case is very different indeed. None of the facts, such as they are, have discharged the onus of proof on the respondent to establish, and not simply assert in a vague, general and unspecific manner, that his intention when leaving was not to avoid or evade the prospect of serving his sentence should his appeal fail. Even without his own statement to Sgt Kirwan, which he accepts he made, that he felt safe here because Ireland was not part of the Schengen Agreement this Court would not, in all probability, have reached a different conclusion. With it, there can be no room for doubt. None of what has been proffered by way of evidence and submissions have any real persuasive value.
I am satisfied that all the relevant provisions of the Act and the Framework Decision are satisfied, and the Court is required to make the order for surrender.
Minister for Justice & Equality v Vestartas
(Unapproved) [2020] IESC 12 (02 April 2020)
Page 1 ⇓MacMenamin J.Dunne J.Charleton J.O’Malley J.Irvine J.THE SUPREME COURT[Appeal No. 108/19]IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003, AS AMENDEDBETWEEN:THE MINISTER FOR JUSTICE AND EQUALITYAPPELLANTV.MANTAS VESTARTASRESPONDENT(UNAPPROVED) Judgment of Mr. Justice John MacMenamin dated the 2nd day of April,2020Introduction1. In a judgment dated the 29th March 2019, the High Court (Hunt J.), refused anapplication brought by the Minister for Justice and Equality for the respondent‘s surrenderto the Republic of Lithuania where, as a young person, he had committed a substantialnumber of offences, and had partly served a sentence subsequently imposed on him. Hewas later released on parole. In contravention of his parole conditions, he left Lithuaniaand moved to Ireland. Later, whilst in this State, he formed a relationship with hispartner. The couple have two children. The elder child was born before the respondentmoved to Ireland, but he is now in loco parentis to that girl, who is aged twelve. Thecouple‘s younger daughter is now aged four years.Page 2 ⇓2. Bearing in mind these and other features of the case, including delay, the High Courtjudge held that, to make an order for the return of the respondent to Lithuania wouldinfringe the private and family rights of the respondent, his partner and the childrenunder Article 8 of the European Convention on Human Rights (―the ECHR‖; ―theConvention‖). He therefore refused to make the order sought. He held that theseexceptional features were such that the public interest, which would normally compelsurrender, was heavily and unusually compromised having regard to the adverse effectsof making such an order. He held that, during the time the respondent was in Ireland, hehad formed relationships which constituted a de facto family, giving rise to rights underArticle 8 of the ECHR. He concluded that these features were sufficiently weighty torender a proposed surrender an unwarranted and disproportionate interference with suchrights.3. Subsequently, the Minister applied to the High Court to certify that grounds existed for anappeal to the Court of Appeal. It was contended that the judgment raised issues ofexceptional public importance concerning the interpretation of provisions of the EuropeanArrest Warrant Act, 2003, as amended (―the 2003 Act‖).4. In the course of that application, the Minister submitted that the High Court judge hadtaken into account a number of features which should not have formed part of theassessment. These included findings that the respondent had part-served his sentence;observations on the gravity, or otherwise, of the breach of the parole conditions imposedon him; a finding that the respondent had shown signs of rehabilitation whilst in thisjurisdiction; and a conclusion that there had not been a satisfactory or full explanation ofthe delays which had taken place prior to the issuing of the European Arrest Warrant(―the EAW‖) on the 21st December, 2016, which was transmitted to Ireland more thanone year later.5. In an addendum judgment delivered on the 27th May, 2019, Hunt J. rejected theMinister‘s application and declined to grant a certificate for an appeal to the Court ofAppeal. He held that he had applied the balancing exercise required under s.16 of the2003 Act as identified by this Court in Minister for Justice and Equality v. Ostrowski[2013] IESC 24; [2013] 4 I.R. 206 (paras. 5–6). He observed that the question of delay,considered in detail in the substantive judgment, fell to be considered in the context ofthe effects and consequences of the particular period of delay on the facts of theindividual case before him (para. 9). He expressed the view that, if the relevance of delayas a consideration in such applications had been in doubt, the judgments of this Court inFinnegan v. Superintendent of Tallaght Garda Station and Anor. [2019] IESC 31 had putthe materiality of that feature beyond doubt (para. 9). Citing the judgment of this Courtin Minister for Justice and Equality v. J.A.T. (No. 2) [2016] IESC 17; [2016] 2 I.L.R.M.262, Hunt J. held that the Article 8 factors in this case, when weighed cumulatively, werepowerful, such as would warrant a refusal to surrender. Both judgments wereconsolidated in a composite judgment dated the 2nd July, 2019.Application for LeavePage 3 ⇓6. The Minister then applied for leave to appeal directly to this Court. In the application forleave, it was contended that the High Court judgment raised issues of general publicimportance and would have a wide-ranging impact on other EAW proceedings. This wasbecause the analysis was potentially applicable to all proceedings where surrender wasrequested for the purpose of serving the balance of part-served sentences. The Ministerobserved that, anecdotally, approximately one half of all conviction, as opposed toprosecution, warrants that came before the High Court related to part-served sentences,particularly so in relation to warrants emanating from the Baltic States. Moreover, it wassubmitted that the judgment gave rise to basic questions regarding the role of the HighCourt and the status of the statutory limitations on the role of that Court contained in the2003 Act.7. More specifically, it was argued that the High Court judgment raised the question as towhether, in determining an application for surrender, that Court might properly haveregard to issues such as whether the objectives of parole or rehabilitation had been metunder the Act, where these were, in fact, properly matters for the Lithuanian courts. Itwas contended that the High Court had trespassed into areas where it was not permittedto go under the legislation, and that this judgment was at variance from other High Courtjudgments (see, Minister for Justice and Equality v. Duffy [2019] IEHC 127 and Ministerfor Justice, Equality and Law Reform v. Dunkova [2011] IEHC 36, where Irish courts hadrefused to have regard to such matters, deeming them questions to be considered by thecourts of the issuing state).8. The respondent submitted that the case involved no more than an application of principlespreviously outlined by this Court in Ostrowski, and that if, as in this case, there werematters such as delay to which a respondent could refer, such features might give rise toan inference that the public interest in pursuing an extradition was at the lower end of thescale. He contended that, where there were also other factors present, these,cumulatively, could properly fall to be assessed by the High Court judge, and, in anappropriate case, lead to a refusal to surrender. In short, the respondent‘s case was thatthe judge correctly took these features into account and applied the correct legalprinciples in his decision.9. This Court determined that the issues raised in the judgment were of general publicimportance. Specifically, the question arose as to whether the High Court had correctlyinterpreted and applied the Act and the principles enunciated in the jurisprudence.10. Prior to addressing the judgment under appeal, it is necessary to first consider the 2003Act, and then two decisions of this Court referred to earlier: Ostrowski and J.A.T.The Legislative Framework11. The legislative intent behind the 2003 Act was to give effect to the European CouncilFramework Decision of the 13th June, 2002, on the European Arrest Warrant and thesurrender procedures between Member States (2002/584/JHA) (―the FrameworkDecision‖). The philosophy behind the original Framework Decision was to introduce anew and simplified system for the surrender of sentenced or suspected persons for thePage 4 ⇓purpose of execution or prosecution of criminal sentences. This system would remove thecomplexity and potential for delay inherent in previous extant extradition procedures(Aranyosi and Căldăraru (Joined Cases C-404/15 and C-659/15 PPU) at paras. 75–76).12. Thus, systems of extradition which hitherto on occasions had a significant governmentalor political input, were replaced by a new regime of what was identified in the FrameworkDecision and subsequent jurisprudence, as a free movement of judicial decisions incriminal matters, covering both pre-sentence and final decisions. At the outset, theprocess was seen as being located within the area of freedom, security and justicerecognised in European Union (―EU‖) treaties. The project involved the introduction of asystem of ―judicialisation‖ of the process of returning offenders to Member States, wherethey were to face prosecution or completion of sentence.13. The entire edifice of the Framework Decision is founded on a system of mutual recognitionof judicial decisions on criminal matters between each EU Member State. The role ofcentral authorities, as emanations of the executive of each Member State, whilst highlyimportant, is limited to the provision of practical and administrative decisions (Recital 9 ofthe Preamble to the Framework Directive). Under the EAW system, the function ofordering or refusing surrender is now exclusively reserved to the judiciaries of MemberStates, to be determined on legal grounds.14. This allocation of responsibility rendered it necessary that EAW procedures also be subjectto legal controls and rights protections. This was in order that judicial authorities mightmake determinations within law, and on defined and uniform legal criteria. The system ispredicated on the existence of the special relationship which exists between MemberStates of the EU, which, in turn, is recognised by the treaties themselves, reflecting themaintenance and continuation of a high level of trust between all Member States.15. The duty to act in accordance with the highest fundamental principles of the EU, includesthe maintenance of trust and the protection of the rule of law, peace, freedom anddemocracy. This framework is grounded upon the existence of the common foundation ofhuman rights protections to be found in the ECHR and the Charter of Fundamental Rightsof the EU (―the Charter‖). It is self-evident that the maintenance of these values hingeson the continued existence of the rule of law and an independent judiciary in eachMember State (see Recitals 9 and 10 of the Framework Decision, and the judgments ofthis Court in Minister for Justice and Equality v. Balmer [2016] IESC 25; [2017] 3 I.R.562).16. The Framework Decision contains not only an outline of duties, but of rights protections.All Member States of the EU are obliged to enforce ECHR, and now Charter, rights(regarding the ECHR, see Minister for Justice, Equality and Law Reform v. Stapleton[2007] IESC 30; [2008] 1 IR 669). The fact that rights protection may come under thesupervision of a supranational court which can definitively rule on the compliance of aparticular system with basic human rights is, therefore, itself an essential component ofthe system. This does not preclude a recognition of differences between the legal systemsof each contracting state.Page 5 ⇓Fundamental Rights17. Surrender may be refused if it is established on cogent evidence that to make such anorder would involve exposing a person to a situation where there is a real risk that he orshe might be exposed to a denial of fundamental rights. Ireland will not refuse tosurrender a person to another country with whom it has a bilateral or multilateralagreement merely on the basis that he or she might be treated differently, or under adifferent regime, than in this State. Delivering judgment in Minister for Justice, Equalityand Law Reform v. Brennan [2007] IESC 21; [2007] 3 IR 732, Murray C.J. rejected theproposition that an order under the Act of 2003, or indeed any order for extradition,might be refused if the manner in which a trial in the requesting state, including themanner which a penal sanction was imposed, did not conform to the exigencies of ourConstitution if such a trial or sentence had taken place in this country (para. 37). Heobserved that such an argument could hardly have been the intention of the Oireachtas inadopting s.37(1) of the 2003 Act – which addresses constitutional and ECHR protections—since it inevitably would have had the effect of ensuring that most requests for surrenderor extradition must be refused.18. It is self-evident that the manner, procedure and mechanisms by which fundamentalrights will be protected in different Member States may vary according to national lawsand constitutional traditions. Checks and balances in each national system may, too,vary, even though they might have the same objective, such as ensuring a fair trial. AsMurray C.J. observed in Brennan, few legal systems would wholly comply with the preciserequirements of our Constitution (para. 39).19. Nonetheless, Murray C.J. was of the view that, in considering an application for surrenderof this type, an Irish court must have the jurisdiction to consider circumstances where itmight be established that surrender would lead to an egregious or flagrant denial offundamental or human rights (para. 40). An instance of this would be if it were clearlydemonstrated that there was so fundamental a defect in the system of justice in anissuing state as to give rise to a situation where the grant of an application to surrendermight actually violate such fundamental rights.20. For an order of surrender to be refused on such grounds, the question is not whether thelegal regime in an issuing state is at variance from that under the Constitution. Rather, itis whether it can be established, on cogent, clear evidence, that the circumstances are soegregious, or the undermining of the rule of law so flagrant, so as to create a real riskthat to grant an order to surrender would lead to a denial of fundamental human rights.Such a denial could arise from circumstances in Ireland or in the issuing state.21. It follows from this consideration, that the Framework Decision and the Act will operateon the premise that, in general, it is not the duty of Irish courts to apply principles orconsiderations which would be applicable to a trial or other criminal proceeding in Ireland,to proceedings which, properly, would be dealt with in an issuing state in the event of asurrender being ordered.Article 8 ECHRPage 6 ⇓22. What is in issue in this appeal falls into a somewhat distinct category. The main questionwhich arises is whether an order for surrender would be ―incompatible‖ with the State‘sobligations under the ECHR and its protocols (s.37(1) of the 2003 Act). This is subject toa rather different, and at times more complex test, by virtue of the nature of the ECHRprotection.23. Article 8(1) ECHR guarantees the right to respect for an individual‘s private and familylife, home and correspondence. But that guarantee is subject to the proviso that publicauthorities shall not interfere with the exercise of that right, except such as in accordancewith law, and is necessary in a democratic society in the interests of national security,public safety, the economic wellbeing of the country, for the prevention of disorder orcrime, for the protection of health or morals, or for the protection of the rights andfreedoms of others (Article 8(2)). The terms of Article 8(2) are, therefore, sufficientlybroad to encompass orders for extradition, or in this case, surrender. But as will be seen,these Article 8 considerations arise within a statutory framework which it is nownecessary to consider.24. The judgment under consideration must be assessed in the light of the provisions of the2003 Act, subsequently amended on a number of occasions, and relevant decisions of thiscourt. It must be considered under various headings, addressing first the test as actually.The Test Applied in the High Court Judgment25. The High Court judgment was delivered by a highly experienced judge. It contains a fulldescription of the circumstances of the case. It is carefully reasoned. As alreadydescribed, the Court was asked to address whether surrender should be ordered where itwas claimed such an order would violate private and family rights under Article 8 which,as set out at para. 23 above, is subject to qualifications. On its own terms, therefore, theprotection contained in Article 8 is less than, for instance, the absolute prohibition ontorture and inhuman or degrading treatment to be found in Article 3 of the ECHR.26. In an important passage, Hunt J. directly set out the test he proposed to apply in the casebefore him. He described the duty of the Court, where resistance is offered ―to surrender‖by virtue of a constitutional or ECHR right, as being to conduct a ―fact-specific enquiry‖into all relevant matters, so that a ―fair balance‖ could be struck between the rights of thepublic and those of the person in question. The judgment continued:“Such an exercise is not governed by any pre-determined approach or pre-setformula. Each of the competing interests must be measured and balanced. In thiscontext, the interests of the public, underpinned by weighty considerations such asfreedom and security, will virtually always merit significant value; the weight ofindividual interests will have greater variability. Consequences inherent in thesurrender process, without more, attract a much lower value than consequenceswith a real and substantial effect on the individual concerned” (para. 23).27. Thereafter, the judgment outlined the features which were identified as indicating thepublic interest in ordering surrender (para. 25). These included the actions or inactions ofPage 7 ⇓the requesting state, the purpose of the request for surrender, the nature of the sentenceoriginally imposed, the extent of the sentence served, the young age of the respondent atthe time of the many offences of which he was convicted, the nature of his breach ofparole, and the purpose of the parole itself (paras. 25–29). The judgment concluded thatcertain features in the case, such as delay, indicated that the public interest in surrenderwas at the lower end of the scale (para. 40).28. The judgment having outlined the respondent‘s ―private interests‖ in the form of hisprivate and family rights under Article 8 of the ECHR, concluded that these, with the otherfactors mentioned, were such as would indicate that an order of surrender should not bemade (para. 43).29. It is undoubtedly true that these ―private interest‖ circumstances as described, did reflectthe facts of the respondent‘s own individual situation. The first aspect of the questionhere is one of statutory limitation; that is, the extent to which any, or all, of thesefeatures are appropriate for an Irish court to consider in reaching a determination underthe 2003 Act and, if so, how they should be weighed? The nature of the legal test – andany limitations thereof – are therefore central questions to this appeal, and indeed manyother such applications. It is necessary first to consider the precise terms of the 2003 Act.How the balance is weighed is fundamental; in what circumstances can private intereststo outweigh public interests?The Act of 200330. The analysis which follows must be seen with the full recognition that there is already aconsiderable body of jurisprudence on the application of Article 8 of the ECHR in an EAWcontext. But what is to be found there must be assessed within the legislative framework.The 2003 Act sets out clear pointers to the approach which should be adopted. Theseinclude s.4A, which was inserted into the 2003 Act by s.69 of the Criminal Justice(Terrorist Offences) Act, 2005. This came into effect on the 8th March, 2005. Section 4Aprovides:“It shall be presumed that an issuing state will comply with the requirementsof the Framework Decision, unless the contrary is shown.” (Emphasis added)31. At one level, seen alone, this provision constitutes a simple evidential presumption offuture compliance by the issuing state with the Framework Decision. It deals with theduties and obligations of such states concerning the manner in which they will deal withthe person if surrendered and after such surrender has taken place. If there is cogentevidence of non-compliance, then issues may arise which an Irish court might have toaddress. However, a mere assertion of non-compliance, or the possibility of non-compliance, will not be sufficient to dislodge the presumption (see, the judgment ofMurray C.J. in Minister for Justice, Equality and Law Reform v. Altaravicius [2006] IESC 23;[2006] 3 IR 148 at pp. 158–160). The presumption applies to all applications,whether the form of defence arises under the Constitution or the ECHR.Page 8 ⇓32. But, on another level, the section speaks specifically to the task facing the High Court.This is not to say that the section imposes a legal, as opposed to an evidential, burden onthe respondent; but, as will now be explained, it cannot be said that the balance is, in thewords of the High Court judgment, ―fair‖, in the sense of being entirely equal betweenpublic and private rights.33. While the judgment of the High Court is indeed detailed, it does not refer to s.4A, theeffect of which permeates any discussion of the duties of the Court in considering theapplication in question.34. Section 5 of the 2003 Act places a duty on the High Court judge to consider whether ornot the offences specified in the warrant correspond to those under the law of this State.That issue does not arise in this case. Hunt J. found that the offences in question didcorrespond with offences under Irish law, and no appeal is brought against that finding.35. Section 10 of the Act also contains significant words. Under the heading ―Obligation toSurrender‖, it provides:“Where a judicial authority in an issuing state issues a European arrest warrantin respect of a person –…(d) on whom a sentence of imprisonment or detention has been imposed in thatstate in respect of an offence to which the European Arrest Warrant relates,that person shall, subject to and in accordance with the provisions of this Actand the Framework Decision, be arrested and surrendered to the issuing state.”(Emphasis added)Subject to the provisions contained in s.37, which outlines defences, these terms, too,suggest a duty of compliance.36. Section 16 also speaks to the balance. It provides that, where a person does not consentto surrender, the High Court may, upon such date as is fixed under the Act, make anorder directing that the person be surrendered to such other person as is duly authorisedby the issuing state to receive him or her, subject to compliance with certain conditionsregarding identity and other proofs. But this duty is subject to an essential proviso, to theeffect that surrender will only take place provided such surrender is not prohibited by Part3 of the Act.37. Part 3 concerns rights protections. It includes s.37 which, insofar as material, providesthat a person ―shall not be surrendered‖ under the Act if his or her surrender would be―incompatible‖ with the State’s obligations under the ECHR or its protocols, or wouldconstitute a contravention of any provision of the Constitution other than for the reasonthat the offence specified in the warrant is one to which s.38(1)(b) applies (s.37(1)(a)–(b)). The respondent and his partner are a de facto family (see, para. 2 above). ThePage 9 ⇓argument before this Court has therefore been framed entirely within ―private and familyrights‖, as protected in Article 8 of the ECHR, rather than the Constitution. Two pointsarise. First, and as already mentioned at paras. 23 and 25 above, Article 8 protectssignificantly qualified rights. Second, there is little European Court of Human Rights(―ECtHR‖) case law on surrender/extradition procedures in the context of infringement ofArticle 8.38. Section 38 of the Act contains certain limitations, which may be characterised as comingwithin the description of ‗proportionality‘. It is the only provision in the Act which nowcontains such limitations. Briefly, it provides that a person shall not be surrendered inrespect of certain offences falling below a certain minimum threshold of seriousness. Theoffences here fall above that minimum threshold. The provision also contains otherlimitations, to the effect that surrender will not take place unless the offence correspondsto an offence under the law of this State. The offence must be punishable by a maximumperiod of not less than 12 months imprisonment. Alternatively, a term of imprisonment ordetention of not less than 4 months must have been imposed on the person in respect ofthe offence in the issuing state, and the person requested must be required under the lawof that state to serve all or part of that term of imprisonment. Both of these conditionsapply.39. But, even seen by themselves, and without consideration of the case law, these statutoryprovisions set out substantial limitations on the role of the High Court in carrying out anassessment under the Act.40. To summarise the position thus far; the Act contains a presumption of compliance withthe Framework Decision: when a court is satisfied that the relevant proofs are compliedwith, the Act stipulates that a person shall be arrested and surrendered to the issuingstate (see, ss. 4A and 10). But a court must also carry out an assessment of private andfamily circumstances under s.37 of the Act in order to ascertain whether or not an orderto surrender is compatible with the State‘s obligations under, in this case, Article 8 of theECHR.41. But the test involves a significant weighting process which now must be described in thecontext of the decided case lawOstrowski42. In one sense, interpreting the statute is a simple matter. A more complex question, butequally critical, is how, precisely, the public and private interests should be weighed in thecourt‘s assessment? These questions were considered by this Court in the cases nowanalysed. It is necessary not only to consider what principles were applied, but how thisCourt described the balancing process, and how the public and private interest featureswere actually to be weighed.43. In the first case to be considered, the respondent, Mr. Ostrowski, had moved from Polandto Ireland with his siblings and one parent. He went on a brief visit back to Poland wherehe was found by the police to be in possession of a small quantity of marijuana.Page 10 ⇓44. Just as here, the High Court judge in that case adopted an ―open-ended balancingprocess‖ and gave considerable weight to ―proportionality factors‖ (Minister for Justiceand Equality v. Ostrowski [2012] IEHC 57). He engaged in a hypothetical assessment ofwhat sentence might be imposed in the event of surrender. The judge held that it was itwas inherently unlikely that the respondent would receive a custodial sentence; that, ifsurrendered to Poland, he would likely suffer a further deprivation of liberty; that hisprospects of being granted bail in Poland would be reduced; and that the Polishauthorities could have written to the respondent in Ireland informing him that the matterwas not going to be dropped, and inviting him to return to his home state. The judgeobserved that there had been a delay in executing the warrant. He had regard to the factthat there had been some elapse of time between the endorsement of the warrant by theHigh Court in April 2010 and the respondent‘s arrest in 2011, which the judge concludedhad ―led to a false sense of security, and then increased stress and anxiety for therespondent‖ (section 7 of the judgment).45. Against that background, the judge then turned to the Article 8 features. He took intoaccount the burden on the respondent and his family of his having to be repatriated toPoland in custody in the event of his surrender (section 7). He observed that to make anorder surrendering the respondent would disrupt his family life ―in a significant way‖. Heheld that, whilst interference in family life was only to be expected when a person faced adeprivation of liberty, it was usually a proportionate measure, and not a breach of his orher right to respect for family life (section 7).46. This last assertion could only be seen as problematic. While a sentence will be―proportionate‖ in its adherence to the proper principles applicable to that exercise, quitefrequently a prison sentence will regrettably have a significant effect on private and familylife. But such interference will generally be justified by reference to Article 8(2) of theECHR, and the limitations contained there as to what is in accordance with law, andnecessary in a democratic society and for the prevention of disorder or crime.47. In Ostrowski, the High Court judge held that, taken in conjunction with his familycircumstances, the features identified above were ―unusual‖ (section 7). Having weighedthem all up in the balance, and having afforded each circumstance what he considered tobe its appropriate weight, the judge concluded that he was not satisfied, overall, that itwould be a proportionate measure to order the surrender of the respondent on foot of theEAW. He concluded, rather, that it would represent a ―disproportionate‖ interference withthe respondent‘s fundamental rights, and particularly his rights to liberty, to enjoyphysical and mental health, and respect for family life.48. That approach could undoubtedly be described as an ‗open-ended‘ balancing processhaving regard to public interest proportionality factors as against the private interestECHR factors, in the context of elapse of time. While the facts, of course, differ somewhatfrom the instant case, the similarities are striking.49. But the High Court judge‘s approach in Ostrowski was rejected by this Court (DenhamC.J.; Murray, O‘Donnell, McKechnie and MacMenamin JJ.), which concluded there was aPage 11 ⇓duty to make an order for surrender. The Court delivered three judgments (cited at para.5 above). Three other members of the Court expressed explicit concurrence with thejudgment delivered by Denham C.J. It is important to emphasise that the judgment ofMcKechnie J. is a concurring judgment which expresses no dissent from that of DenhamC.J. In fact, the ratio of each judgment is the same. The judgment which I deliveredspecifically concurred with that of Denham C.J.50. Denham C.J. considered the wording and policy behind the Framework Directive. Herwords not only speak to the principles applicable, but importantly, to the appropriateweight to be attached to public and private interests. She emphasised that the obligationexpressed both in the Framework Decision and the Act, was that Member States shouldexecute any warrant on the basis of the principle of recognition (para. 60). She pointedout that it was the responsibility of the courts to implement and apply the 2003 Act (para.23). She stated that the Court was required to surrender a person sought to besurrendered under the Act of 2003, as long as the provisions of the Act are complied with(para. 23). But these observations must, as stated by Denham C.J., be seen as subject tothe provisions of s.37, to the effect that a court must always have regard to the questionas to whether or not the surrender is compatible with the State‘s obligations under theECHR, or in contravention of the Constitution.51. Denham C.J.‘s judgment firmly rejects the argument that the triviality of the offence(s) inquestion should be a bar to a surrender, provided that the offence or offences camewithin those identified within the ambit of the 2003 Act (para. 25). She observed that, tosome degree, the Framework Decision might be said to have addressed a proportionalityquestion by providing for a minimum gravity test with regard to offences which fall withinthe range of the Framework Decision (para. 27). She stated that this was reflected in s.38of the Act of 2003.52. But the Chief Justice then went on to set out in very clear terms the limitations on therole of the High Court, holding that the Court had:“no role to look at possible sentences which might be awarded in an issuingstate when a person is surrendered and to consider whether such a sentence isproportionate” (para. 29).She added that it would be virtually impossible in the vast majority of cases for the HighCourt, or any national court, to ascertain the likely sentence to be imposed by a court inthe requesting state in all the circumstances of a particular case, even if, in a minority ofcases, it might be thought possible (para. 29).53. On this, she made clear:“Once an EAW meets the minimum gravity test for an offence set out in theFramework Decision and the Act of 2003, it is not for the High Court to create andapply a proportionality test to a potential sentence” (para. 30).Page 12 ⇓Such considerations were, rather, a matter for a court of the issuing state – in Ostrowski,Poland. Referring to Eurojust, the supervisory forum for the operation of the FrameworkDecision, Denham C.J. observed that, while the question of triviality was a matter whichmight be addressed in ―another‖ forum, it was not a question to be considered by thecourts of Ireland (para. 31).54. In Ostrowski, the respondent‘s parent, brother and sister had moved to Ireland someyears previously, thereby making a ―collective decision to stay in Ireland‖. Therespondent‘s immediate family were, therefore, in Ireland, and his intention was to stayin this State on a long-term basis. But these private and family circumstances wereinsufficient to establish an Article 8 defence under the ECHR. This Court held that the HighCourt had erred in adopting such an approach, and that it was not for that Court to―create‖ a proportionality test for the potential sentence which a respondent mightreceive. This was a matter for the courts of the issuing state.55. Directly addressing Article 8 private and family rights, at para. 36, Denham C.J. quotedwith approval from the judgment delivered by Fennelly J. in this Court in Minister forJustice, Equality and Law Reform v. Gheorghe [2009] IESC 76. Fennelly J. observed atpara. 48 of Gheorghe that it was a regrettable, but inescapable incident of extradition ingeneral, and surrender under the EAW system in particular, that persons sought forprosecution in another state will very often suffer disruption of their personal and familylife. He went on to point out that Article 1 of the Framework Decision expressly providesthat it was based on fundamental rights and fundamental legal principles, then enshrinedin Article 6 of the Treaty on European Union. But, he said, no authority had beenproduced to the Court to support the proposition that surrender should be refused wherea person would, as a consequence, suffer disruption, even severe disruption, of familyrelationships (para. 48).56. Denham C.J. observed that only in an exceptional case could such rights outweigh therequirement to surrender (para. 37). Ostrowski was not such a case. Thus, she held thatthere was no foundation upon which to find for the respondent on that ground. It followedthat to succeed, the private and family rights which arose would have to be genuinelyexceptional. The Chief Justice specifically held that the ―general principle ofproportionality‖ did not arise in the case (para. 37).57. In Ostrowski, McKechnie J. delivered a very comprehensive and closely reasonedconcurring judgment. This traced the origins of the 2003 Act from the FrameworkDirective, considered the terms of the Act itself and assessed the manner in which ECHRand constitutional protections might arise in a judicial determination.58. The judgment then turned to the question of balancing rights. There followed a passagewhich, in many if not all particulars, is strikingly similar to the identification of a testcontained in para. 23 of the judgment now, under appeal.59. But, it must be emphasised, in the passage about to be quoted, McKechnie J. was notreferring to the test to be adopted by a court in finally determining whether or not toPage 13 ⇓order surrender, but rather the antecedent proportionality test which might be appliedwhen raising a rights-based defence. Thus, it was in that specific context, that he statedat para. 104 that:“In summary, where resistance is offered by virtue of a Convention orConstitution right, the court must conduct a fact specific enquiry into all relevantmatters so that a fair balance can be struck between the rights of the public andthose of the person in question.” (Emphasis added)60. That passage speaks only in the context of resistance being offered by virtue of aConstitution or Convention right. At para. 23 of the judgment under appeal, quoted atpara. 26 earlier, the words ―to surrender‖ appear after the word ―resistance‖. There is asubtle, but important, difference in meaning and effect. McKechnie J. was not speaking ofa defence to surrender, but rather the fact-specific enquiry on the antecedent question ofresistance being offered by virtue of a Convention or Constitution right. It was in thatcontext that a proportionality test would arise. It was in that process the court must strikea ―fair balance‖ between public and private interests and rights.61. Later in the judgment, McKechnie J. did indeed turn to how the Act should be appliedwhen it came to the ultimate question of whether to order surrender. He considered theinterpretative effect of the decision of the Court of Justice of the European Union (―theCJEU‖) in Pupino (Case C-105/03) [2005] ECR I-5285. He also took into account thegeneral principle that, under the common law, there existed a presumption that whenenacting domestic legislation such as the Act of 2003, the Oireachtas intended to do so ina manner which would be consistent with its international obligations. He then addressedArticle 1.2 of the Framework Decision, which provides that Member States:“shall execute any European arrest warrant on the basis of the principle ofmutual recognition and in accordance with the provisions of this FrameworkDecision.”62. With all these factors in mind, he expressed the following very clear views on the ultimatetest under s.16, at para. 148:“The question therefore is whether, with the aid of this interpretive approach,there can be implied into the provisions of the 2003 Act, in particular thosereferable to a surrender hearing, an overall requirement on the High Courtto apply a proportionality test of the scope and breadth as above mentioned. Inmy view, it is not possible to so do.” (Emphasis added)63. He went on:“This conclusion results from the express wording of article 1.2 of theFramework Decision, which applies in furtherance of the mutuality principles whichare the very foundation of the instrument itself, together with the expressprovisions of the Act in the context of execution, which make it clear that unlessPage 14 ⇓the mandatory or optional barriers to extradition… can be availed of, the HighCourt must, if satisfied as to formal matters, make the order as requested. Aspreviously stated, it does not have a residual power of refusal.” (Emphasis added)64. Just as did Denham C.J. at para. 37 of her judgment, McKechnie J. rejected the possibilityof an overall requirement that the High Court should apply a ―general proportionality test‖of the scope and breadth he described. That is not to say that a court may not haveregard to a truly exceptional set of circumstances such as, perhaps, involving egregiousdelay.65. While any decision to surrender must, of course, be compatible with the Conventionprotections afforded, the process does not involve a general proportionality test. But noless important are the actual terms of Denham C.J.‘s judgment. These convey theconstant and strong public interest which a court must weigh in determining whether tomake an order.66. To summarise on this issue, I think the High Court judgment incorrectly elided twoseparate tests into one overall proportionality assessment which does not correspond withthe requirements of the Act.67. Ostrowski makes clear that, to be successful, an Article 8 defence must cross a highthreshold. Below that, while Convention or constitutional rights necessitatingproportionality assessments will often arise for consideration in many cases, these will notbe sufficient to defeat a claim for surrender. The test must be seen within therequirements of ss.4A, 10, and 37(1) of the 2003 Act, as explained in Ostrowski.68. In carrying out an assessment in our law for the purposes of s.16 of the Act, therefore, itis not accurate to speak of the task as one which is not governed by any predeterminedapproach, or pre-set formula, balancing competing public and private interests. In fact,the constant and weighty public interest in ordering surrender is not only underlined byArticle 8(2) considerations such as necessity under law, freedom and security, but thewords of ss.4A and 10 of the Act. The test must be seen in light of the clear exposition inthe judgments in Ostrowski. A court may often have to take private and family rightsconsiderations into account. But it can only do so having regard to the limitationcontained in Article 8(2) of the ECHR, and the public interest considerations inherent inthe Act and the Framework Decision. To surmount these, in any case, would necessitatethat the evidence requirement be high. The assessment does not involve a balancebetween the rights of the public and those of the individual. It is one, rather, where, asthe Act provides, a court shall presume that an issuing state will comply with therequirements of the Framework Decision – unless the contrary is shown on the basis ofcogent evidence. When faced with an application under the EAW, an Irish court should notcarry out a general proportionality test on the merits of the application; but rather, itshould apply the specific terms of the Act, albeit subject to a careful consideration ofwhether, if necessary, applying a proportionality test to an Article 8 Convention right, toorder surrender would involve a violation of that ECHR right to the extent of beingincompatible with the State‘s obligations under the Convention.Page 15 ⇓69. I am, therefore, driven to the conclusion that the High Court judgment under appealproceeded under a misapprehension regarding the test to be applied in an application forsurrender under s.16 of the 2003 Act. But that does not absolve this Court from itselfcarrying out an assessment in order to determine, applying the correct test, whether anorder for surrender should have been made.70. The principle that Irish courts may refuse an order for surrender under s.37 of the Act, iswell established. To take one illustration, in Minister for Justice, Equality and Law Reformv. Rettinger [2010] IESC 45; [2010] 3 IR 783, this Court (Denham, Fennelly andFinnegan JJ.) refused an order for surrender to Poland on the grounds that there was areal risk of a violation of the absolute prohibition against torture and inhuman ordegrading treatment under Article 3 of the ECHR due to the prison conditions in thatMember State. But, even there, the Court held that a possibility of such treatment wouldnot be sufficient (per Denham J. at para. 31). The evidence had to go further. Itestablished a real risk of violation of what was, in that instance, an absolute protection. Inthat context, this Court found that s.37(1)(c) of the Act required reasonable grounds forbelieving that a real risk existed (per Fennelly J., at para. 74).71. But there are real distinctions between the circumstances in Rettinger and the instantcase. Here, what is in question is not the absolute right to be found in Article 3 of theECHR, but rather an alleged risk to the qualified right to private and family life which issubject to the qualifications contained in Article 8(2) of the ECHR. Thus, the evidence ofan Article 8 violation would have to be so clear that, in the words of s.37(1), an order forsurrender would be incompatible with the State‘s obligations under the Convention or itsprotocols. The Act of 2003 therefore makes it entirely clear that it is the duty of thecourts to have careful regard to constitutional and ECHR guarantees and protections.Minister for Justice v. J.A.T. (No. 2)72. In Minister for Justice v. J.A.T. (No.2), cited at para. 5 above, this Court did have toconsider a truly exceptional case, where the Article 8 circumstances were entirely outsidethe norm. The case involved a second EAW, issued in relation to the VAT offences alleged.The fact that a second warrant was issued was due to flaws in the first EAW, which, asthis Court held, could have been, but were not, addressed in the application concerningthat first warrant. A very considerable time had passed since the alleged offences. Furthertime had elapsed since the appellant had been arrested on foot of the second EAW.73. Denham C.J. described the other unusual features of the case. Her judgment had regardto the oppressive effect that the two EAWs had on the appellant, his son and his family;the absence of explanation for the failure to remedy the defects in the first warrant; andthe fact that there had been no engagement by the authorities, either on that issue or toexplain the delays. She observed that the Court also had to have regard to the duty toprotect fair procedures and the principle that a party in litigation should not benefit fromproceedings which were, de facto, abusive of the court‘s process.74. But critically in J.A.T., there was clear, cogent medical evidence concerning the degree ofincursion into the appellant‘s Article 8 private and family rights. The appellant himself wasPage 16 ⇓psychologically vulnerable. He was stressed, not sleeping, suffering from considerableanxiety and depression, and worried about the care of his son (per Denham C.J. at para.67). The appellant reported to his doctor that his whole family was ―falling apart‖ and thathis dependent son not only suffered from chronic schizophrenia which would not improve,but would most probably deteriorate as he got older, especially if he continued to abusealcohol (paras. 67–68). He had a daughter in England who also had mental health issues,which appeared to have started around the time of the initial proceedings.75. The uncontroverted medical evidence further established that not only that the appellantwas in quite a distressed state, but that his doctor would fear for the appellant‘s mentalhealth if he was required to go through the full process of court appearances andextradition proceedings for a second time. The appellant‘s wife was not in a position to bethe son‘s primary carer, and the appellant played a primary role in running the family.This was an almost unique set of circumstances.76. O‘Donnell J.‘s judgment concurred with the order proposed by Denham C.J. Hisjudgment, too, forms part of the ratio. It laid particular emphasis on the fact that, in EAWproceedings, considerable weight is to be given to the public interest in ensuring thatpersons charged with offences actually do face trial (para. 4). He referred to the ―constantand weighty‖ interest in surrender under an EAW, as well as under bilateral or multilateralextradition treaties. He pointed out that the fact that people accused of crimes should bebrought to trial was not only a fundamental component of the administration of justice ina domestic setting, but also internationally. He further mentioned the important andweighty interest in ensuring that Ireland not be seen as a haven for fugitives and tohonour its treaty obligations; if anything, there was a greater interest and value inensuring performance of those obligations entailed by membership of the EU (para. 4).The judgment identified what are described as the particular and specific factors in J.A.T.:the repeat application, lapse of time, delay, impact on the appellant‘s son, and knowledgeon the part of the requesting and executing authorities of those factors, all weighedcumulatively (para. 10).77. At para. 2, O‘Donnell J. pointed out that when, under United Kingdom (―U.K.‖) legislation,the courts in the neighbouring jurisdiction had given consideration to Article 8 defences,the consequence had been to give rise to a substantial number of subsequent applicationswhere such defences had been relied upon (see, the judgment of the U.K. Supreme Courtin HH v. Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25; [2012] 4 AllER 539). The question of the weight to be given to public and private interests was laterreviewed in that jurisdiction, when, in a subsequent judgment, Polish Judicial Authoritiesv. Celinski and Ors. [2015] EWHC 1274 (Admin); [2016] 3 All ER 71, a Divisional HighCourt of England and Wales laid considerable emphasis on the principle that substantialweight should be given to the public interest in compliance with extradition requests, theundesirability of the United Kingdom being seen as a haven for fugitives from justice, andthe fact that the judgment in HH had to be seen within its own specific factual context,where there were highly unusual Article 8 features (paras. 8–9). The Divisional Courtemphasised that ―proportionality‖ questions, the culpability of the defendant and thePage 17 ⇓integrity of the sentencing regime in each individual state were matters for the issuingstate (paras. 12-13). While persuasive judgments from the neighbouring jurisdiction willalways be illuminating, it is important to emphasise that the terms of the U.K. ExtraditionAct, 2003, and the duties of a court in considering such applications, are very differentfrom those contained in the Irish Act of 2003.Consideration78. Having analysed the effect of the statute, and the nature of the test as explained, it isthen necessary to consider the facts as fully outlined in the High Court judgment.Applying the principles with their correct weighting, the evidence adduced must beevaluated to determine whether an order for surrender should be made. As well as otherfactors, counsel for the respondent urged the Court to take into account the passage oftime which had elapsed. No authority was cited to this Court for the proposition that theelapse of time, per se, could give rise to a refusal to surrender. One cannot, of course,preclude the possibility that, in a given situation, very lengthy delay, perhaps giving riseto exceptional Article 8 consequences, could be a significant factor in an EAW application.But the question is whether this is such a case? For the purposes of this appeal, counselfor respondent Minister prepared a chronology of events. The reference to the Kovalkovasjudgment is explained below this chronology.79. Chronology:11th June, 1989: Respondent‘s date of birth2nd September, 2003–21st May, 2005: 43 offences committed17th November, 2004: Respondent convicted of 7 offences10th February, 2005: Respondent convicted of 2 further offences4th November, 2005: Respondent convicted of 7 further offences28th February, 2006: Respondent convicted of 25 further offences30th June, 2006: Respondent convicted of 1 further offence1st July, 2006: Respondent convicted of 1 further offenceComposite sentence imposed: 5 years and 8 months22nd June, 2009: Respondent released on conditional parole12th September, 2011: Lithuanian court revoked his parole2nd December, 2013: EAW issued by the Lithuanian Ministry of Justice10th November, 2016: Kovalkovas judgment delivered by the CJEU (see, 477/16 BPU)9th December, 2016: Notice from Ministry of Justice regarding modification of the EAWPage 18 ⇓21st December, 2016: New EAW issued by regional courtApril, 2018: EAW transmitted to the Central Authority30th April, 2018: Central Authority in Ireland requests additional information7th May, 2018: Additional information received (No. 1)14th May, 2018: EAW endorsed by the High Court28th July, 2018: Respondent arrested29th July, 2018: Respondent brought before the High Court30th July, 2018: Respondent was given bail26th September, 2018: Respondent filed points of objection and affidavit11th October, 2018: Central Authority requested further information24th October, 2018: Additional information received (No. 2)18th January, 2019: Surrender hearing before the High Court1st March, 2019: High Court judgment delivered27th May, 2019: High Court refused to grant certificate of leave to appeal4th June, 2019: Notice of Appeal to the Supreme Court2nd August, 2019: Determination of the Supreme Court ([2019] IESCDET 193)22nd August, 2019: Notice of Intention to Proceed (filed late by consent)80. As the High Court judge correctly concluded in this case, there were indeed significantelapses of time. The respondent served three years out of the five-year and eight-monthcomposite sentence finally imposed on him on the 1st July, 2006. He was granted paroleon the 22nd June, 2009. He was released on the 1st July of the same year. The order forrelease was revoked in September 2011. The High Court judgment infers that therespondent came to Ireland in late 2011 or 2012. At some point, he was placed on thewanted list in Lithuania. But the authorities did not establish his whereabouts until theyear 2013.81. The Central Authority in Ireland requested further information as to the reasons for delay.The Lithuanian Ministry for Justice had previously issued an EAW in 2013. But, in fact, thewarrant before the High Court was issued in Lithuania in December 2016 and was nottransmitted to Ireland for execution until April 2018.Page 19 ⇓82. Counsel for the Minister referred this Court to evidence that on the 9th December, 2016,the Siauliai County Court in Lithuania received a notice regarding what is termed―modification‖ of the earlier warrant for the respondent. Counsel submits that thismodification was likely to have related to the judgment of the CJEU issued in the case ofKovalkovas a few weeks earlier, which held that the Lithuanian Ministry of Justice was nota ―judicial authority‖ for the purpose of Article 6 of the Framework Decision, and wastherefore not entitled to issue the warrant (see, Kovalkovas (Case C-477/16 PPU; 10thNovember, 2016) at para. 48).83. But the High Court judgment under appeal also expressed the view that other elapses oftime were also matters of significant concern. The judge observed that the elapse of timebetween the grant and revocation of parole had not been addressed by the requestingstate, although if this had been the only period of unexplained delay it would not, of itself,be particularly significant. However, he went on to observe that, from the informationavailable, it appeared that during the time between the grant of parole on the 22nd June,2009, and the revocation of parole on the 12th September, 2011, the respondent was stillamenable to the Lithuanian authorities, as they were monitoring his conduct, and wereaware then that he had not fulfilled the parole conditions which led to the matter beingreturned to the relevant court on the 12th September, 2011 (para. 31).84. The judgment also expressed concern as to the overall elapses of time which occurred,and that there had not been any full explanation for the elapse of time between therevocation of parole and when the earlier EAW was issued on the 2nd December, 2013.Perhaps the difficulty did indeed arise from the pending Kovalkovas case before the CJEU,which was not resolved until 2016. This was not explained in evidence. This wasunsatisfactory and was not in full accord with the principles underlying the Act of 2003and the Framework Decision.85. On the 10th October, 2018, the Central Authority in Ireland asked for a furtherexplanation regarding the elapse of time which had taken place between the issue of thesecond EAW in December, 2016 and its arrival in Ireland in April 2018. The response fromthe Lithuanian Central Authority was to the effect that further information had beensought from the court of first instance and that it would not be possible to provide furtherinformation before the 22nd October, 2018, but that as soon as further information wasreceived, it would be forwarded. No further information has emerged. One cannot buthave some sympathy for the learned trial judge‘s concerns, both as to the elapse of timeand the absence of information, both then and since.86. The question of the passage of time from the commission of an offence no longer formspart of the framework of the 2003 Act. Section 40(a)–(b) of the Act, which formerlyprovided that a person should not be surrendered for a corresponding offence when, byreason of the passage of time, such person could not be proceeded against in this State,was deleted by s.19 of the Criminal Justice (Miscellaneous Provisions) Act, 2009 witheffect from the 25th August 25, 2009, by virtue of the Criminal Justice (MiscellaneousPage 20 ⇓Provisions) Act, 2009 (Commencement) (No. 3) Order 2009 (S.I. No. 330/2009). But thiswas not the only observation on the elapse of time question.87. There are indications however that the High Court may have considered that elapse oftime was sufficient in itself to defeat an EAW application. As indicated at para. 5 above, inthe supplemental judgment delivered in response to the Minister‘s application to certifythat points of law of exceptional public importance arose, the High Court judge observedthat if the relevance of delay as a consideration had ever been in doubt in this area, therecent judgments of the Supreme Court in Finnegan (cited at para. 5 above) ―put thispoint beyond doubt‖.88. Finnegan dealt with the question of egregious delay in the issuing of a warrant. But thejudgment of the majority of this Court was clearly limited to the unusual circumstances ofthat case. The judgment did not establish any general principle to the effect that delay inprocessing the warrant in that case could figure as a factor in an EAW assessment. Infact, in Finnegan, O‘Donnell J. pointed out at para. 13 that, under the EAW regime, elapseof time itself ―cannot be a ground for refusing surrender‖. (Emphasis added; see, also,Minister for Justice, Equality and Law Reform v. Stapleton [2007] IESC 30; [2008] 1 I.R.669 and Minister for Justice, Equality and Law Reform v. SMR [2007] IESC 54; [2008] 2I.R. 242). In itself then, delay cannot be a factor.89. Though a matter of legitimate concern, in this case the delay is to be viewed against therespondent‘s private and family circumstances. Unless truly exceptional or egregious,delay will not alter the public interest, although there may come a point where the delayis so lengthy and unexplained as to constitute an abuse of process, or to raise otherconstitutional or ECHR issues. The High Court judgment holds that there had been asignificant dilution of the public interest which would ordinarily apply (para. 37). It posedwhat was characterised there as a modified and weakened public interest in surrender,evidenced by the elapses of time and other factors. Against this, it posed the private andfamily factors in the case (para. 38). But for the reasons set out above, there was amisapprehension as to the nature of the assessment. This is not a balancing exercisewhere public and private interests are placed equally on the scales. It is nonethelessnecessary to have regard to the circumstances.90. The question of weighting again arises in this section of the judgment under appeal. Thepublic interest in making an order is clear, constant and substantial. But in this case, thejudge also held that the elapse of time prior to 2011, from 2013 to 2016 and later from2016 to 2018, did not ―signify a pressing social need in Lithuania for the return of [therespondent]‖ (para. 35). He expressed particular concern regarding the delay from 2016onwards in light of the previous elapses of time. What then are the family circumstances?Private and Family Circumstances91. The respondent lives with his partner and the two children near a provincial town. Theysigned a further lease for their home for nearly two years in early 2018. Both of theirchildren attend/attended pre-school and primary school in Ireland. Both children are Irishcitizens and have always lived in Ireland. The respondent is in loco parentis in relation toPage 21 ⇓the older of the two girls and states his intention to continue so to act. His relationshipwith his partner has now continued for approximately seven years. Since he arrived inIreland, the respondent has lived openly under his own name. The only two convictionsagainst him are for driving without insurance and depositing grass cuttings in a place notdesignated for such purpose. The respondent‘s partner has no convictions. She works in aretail outlet. Both she and he are well-settled in the area. There are undoubtedly factorsin the case which would attract sympathy, but beyond that the evidence simply does notgo. The evidence falls very far short of that described in J.A.T.92. It cannot be said therefore that there are ―exceptional‖ Article 8 factors. The judgeobserved that the sole feature of particular interest was the young age of the children forwhich the respondent was responsible. He made the observation that the potential effectof the loss of contact with their father for almost three years at their time of life would beobvious, particularly in the case of the child who was born in 2015 (para. 38).93. He described the evidence on that aspect of the case as ―general‖ and that, on theevidence, it was reasonable to conclude that the children‘s best interests would bevindicated by the continued provision of care and support by a present father (para. 38).While true, these observations make clear the lack of exceptionality – and the absence ofcogent evidence – on the facts which distinguished this case from the highly unusualcircumstances of J.A.T. These are undoubtedly factors which a Lithuanian court will takeinto account.94. The contrast with the exceptional facts in J.A.T. is plain. For an Article 8 defence tosucceed, it can only be on clear facts based and cogent evidence. The evidence must besufficient to rebut the presumption contained in s.4A of the Act (see, para. 41 above).The circumstances must be shown to be well outside the norm; that is, truly exceptional.In the words of s.37(1), they must be such as would render an order for surrender―incompatible‖ with the State‘s obligations under Article 8 of the ECHR. This wouldnecessitate that the incursion into the private and family rights referred to in Article 8(1)was such as to supervene the limitations on the right contained in Article 8(2), and overthe significant public interest thresholds set by the 2003 Act itself.95. The High Court judgment describes the youth of the offender at the time of his variousoffences. It can be said that many of the offences were thefts, sometimes significant andsometimes trivial. But the offences also included an assault on a car owner during thecourse of the theft of a car, where it appears, the respondent, was one of a group of threeoffenders who engaged in the crime. (para. 9). In the course of the offence, they falselyimprisoned the victim. But this consideration in the High Court judgment, was a type of―proportionality analysis‖ of the offences sentence and sanction. As this Court held inOstrowski, these are not factors which an Irish court is entitled to take into account underthe Act. But none of this precludes these issues being brought to the attention of theLithuanian courts. However even taken cumulatively, none of these, or the Article 8factors outlined, are sufficient to place this case in an ―exceptional‖ category.Page 22 ⇓96. Were it to be the situation that, on surrender, the respondent would be entirely shut outfrom raising these circumstances, this might be a different case. Arguably, such apreclusion would be a denial of fundamental rights. The warrant recites at para. 3.4 thatthe respondent was not personally served with the decision of the 12th September, 2011,but that he would be personally served with the decision without delay after surrender.Importantly, the EAW then goes on to recite that:“When served with the decision, the person will be expressly informed of his orher right to a retrial, or appeal, in which he or she has a right to participate, andwhich allows the merits of the case, including fresh evidence, to be re-examined,and which may lead to the original decision being reversed; and – the person willbe informed of the timeframe within which he or she has to request a retrial orappeal, which will be 7 days.”97. Later in the warrant, at box (h), it is stated that:“The legal system of the Issuing Member State allows for a review of the penaltyor measure imposed – on request, or at least after 20 years – aiming at a non-execution of such penalty or measure and/or – the legal system of the IssuingMember State allows for the application of measures of clemency to which theperson is entitled under the Act, or practice of the Issuing Member State, aiming atnon-execution of such penalty or measure.”98. These are important considerations regarding future compliance with fundamental rightsin the event of the respondent‘s surrender. There is no evidence that the respondentwould be precluded from raising any or all of the features of the case in the courts of theRepublic of Lithuania.Conclusion99. On the basis of s.4A of the 2003 Act, recited at para. 30 earlier, and in the absence of anycontrary evidence, this Court must presume compliance with the Framework Decision andthe protections it contains. It must presume that any determination in Lithuania of whatpart, if any, of the balance of the sentence the respondent will now have to serve after asubstantial elapse of time will be a judicial decision, following a proceeding where therespondent will be able to fully exercise his rights of defence, or mitigation, in an effectivemanner and thereby influence any final decision which could potentially lead to a loss offreedom.100. No case has been made that, on surrender, a new hearing as to sentence or penalty inthe Lithuanian courts will have any predetermined outcome; rather, it will be decided onthe basis of the facts then adduced (see, Tupikas (Case C-270/17; 10th August, 2017) atparas. 78–80, and Ardic (Case C-571/17 PPU; 22nd December, 2017) at para. 76).101. For completeness, it may be helpful here briefly to address the questions which formedpart of the application to the High Court to certify points of law for an appeal to the Courtof Appeal. This judgment holds, therefore, that a court is not entitled to take into accountPage 23 ⇓the fact that a requested person is to return to serve the balance of a part-servedsentence because of a breach of parole conditions, rather than to serve a sentence abinitio; or to assess the gravity of the breach of the parole conditions; or to considerwhether the requested person has achieved rehabilitation since being released; or to holdthat an omission to fully explain delay was in itself, sufficient, in conjunction with theother factors in this case, to warrant refusal.102. It is natural that there will be human sympathy in a situation like this. But this must takesecond place to the duties which devolve upon the courts under the Framework Decisionand the terms of the Act itself. The factors so fully outlined in the High Court judgmentwill doubtless be considered by the Lithuanian court. I would conclude that the High Courtjudgment misapprehended the test to be applied, and thereafter took into accountfeatures which are not permissible in an assessment of this type. While, of course, therewere circumstances which differentiate this case from others, none of them were such asto render the facts of this case, truly exceptional, or well beyond the norm, such as wouldwarrant a refusal to surrender.103. I would wish to add, however, that the EAW system is predicated on mutual trust. Ifcentral authorities in an executing state request information about factors such as theelapse of time, a full explanation will not only be helpful to the court in an executingstate, but will often be necessary for justice to be done. The information placed beforethis Court to explain the delay was insufficient. The information provided did not explainthat the delay – if there was such – was as a result of the judgment of the CJEU inKovalkovas. While it was suggested that further information would be available to explainthe later delay, it was never forthcoming. The absence of proper and necessaryinformation, even in response to direct requests, is not conducive to mutual trust andconfidence. Such full exchanges of information, creating mutual trust and confidence, arefundamental to the operation of the scheme. The capacity to verify, as well as proceed onthe basis of trust, is fundamental. But while these are unsatisfactory features of this case,they are of insufficient weight to be determinative. For the reasons set out in thisjudgment, I would nonetheless allow the appeal and make an order that the respondentmay be surrendered on the European Arrest Warrant to the Republic of Lithuania.
Result: Allow Appeal
Minister for Justice and Equality v Sedzik
[2020] IEHC 98 (24 February 2020)
Page 1 ⇓THE HIGH COURT[2020] IEHC 98[2019 No. 322 EXT]BETWEENMINISTER FOR JUSTICE & EQUALITYAPPLICANTANDMAREK ADAM SEDZIKRESPONDENTJUDGMENT of Mr. Justice Binchy delivered on the 24th day of February, 20201. By this application the applicant seeks an order for the surrender of the respondent to theRepublic of Poland pursuant to a European Arrest Warrant dated 26th May, 2017, (“theEAW”). The EAW was issued by a District Judge of the District Court in Krakow, theissuing judicial authority named in the EAW.2. The EAW was endorsed by the High Court on 7th October, 2019. The respondent wasarrested and brought before the Court on 20th November, 2017. This application firstopened before the Court on 11th December, 2019, and was then adjourned until 27thJanuary, 2020, following upon a direction by this Court, on 11th December, 2019,pursuant to s. 20 of the European Arrest Warrant Act 2003 (as amended) (“the Act of2003”) to the Central Authority in this jurisdiction, to request certain information of theissuing state which the Court considered essential in order to arrive at a decision on theapplication.3. At the opening of the application, I was satisfied that the person before the Court is theperson to whom the EAW refers. This was confirmed by counsel for the respondent at theopening of the application.4. I was further satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 ofthe Act of 2003 arise for consideration on this application, and that the surrender of therespondent is not prohibited for any of the reasons set forth in any of those sections.5. At para. B of the EAW, it is stated that the EAW is based upon a consolidated judgment ofthe Regional Court in Olkusz, Second Criminal Division, dated 24th March, 2006, whichbecame final on 11th April, 2006, combining the following convictions:i. A judgment handed down in absentia by the Regional Court in Olkusz SeventhDivision – Magistrates’ Court – dated 15th September, 2003, which became final on27th October, 2003.ii. A judgement of the same court dated 25th November, 2003, which became final on20th December, 2003;iii. A judgment of the same court, Second Division, dated 13th January, 2004, whichbecame final on 21st January, 2004, andiv. A judgment of the same court dated 22nd April, 2004, which became final on 30thApril, 2004.Page 2 ⇓6. At para. D of the EAW, the relevant box is ticked to indicate that the respondent appearedin person at the trial resulting in the decision. The decision concerned is the consolidatedjudgment dated 24th March, 2006, which became final on 11th April, 2006, combining thesentences imposed following upon the convictions referred to at para. 5 (i) – (iv) above,under case file reference II K 16/06.7. At para. E of the EAW, it is stated that it relates to four offences. Particulars of eachoffence are provided. In summary, these are;i. On 29th April, 2003, the respondent stole a cell phone from a named person, byrunning up to her, pulling it out of her hand and running away.ii. On 27th July, 2003, the respondent vandalised a Mercedes car causing damagetotalling 1,000 Polish Zlotys.iii. On 3rd February, 2003, the respondent entered an unlocked apartment and stoletwo televisions, a watch and an ID card, causing a loss of 1,700 Zlotys.iv. On 18th August, 2003, he and others spent 660 Zlotys with the knowledge that thesum had been stolen from two persons who are named.8. It is clear in each case the acts described in the EAW would, if committed in thisjurisdiction, constitute an offence under Irish law, and no argument to the contrary waspresented on behalf of the respondent.9. At para. E of the EAW, particulars are provided of the penalties applicable under Polishlaw in relation to each of the offences. The offences of theft are subject to a penalty ofup to five years, the offence of damaging the property of another is subject to the samemaximum penalty, and the offence of receiving stolen property is subject to a maximumterm of imprisonment of up to five years. As stated above, the respondent received aconsolidated sentence in respect of all offences of two years and eight months’imprisonment, of which one year eleven months and twenty-seven days remain to beserved. Accordingly, minimum gravity is established.10. As stated above, at para. D of the EAW, the box is ticked to indicate that the respondentwas present at the trial resulting in the decision. However, this refers to the judgment onthe consolidated sentence only, handed down on 24th March, 2006, (and which becamefinal on 11th April, 2006) under case reference II K 16/06. Those proceedings did notaddress the innocence or guilt of the respondent, but were concerned only with anapplication advanced by the respondent himself (according to the EAW) to consolidate hissentences with the intent that, under the provisions of Polish law, he would receive asingle sentence that is less severe than the total of all four sentences previously imposed.11. Since no information was provided as regards the attendance of the respondent at thetrials which resulted in a final decision regarding the guilt or innocence of the respondentin respect of the charges brought against him, the Central Authority here sought furtherinformation in this regard by letter dated 2nd August, 2019, whereby it requested aPage 3 ⇓completed section D table in respect of each of the judgments handed down in absentia.At para. E.3 of the EAW, it was indicated that just one of these judgments had beenhanded down in absentia, that being the judgment of 29th April, 2013, under reference K218/03.12. The issuing judicial authority responded by providing a completed section D in connectionwith all of offences. In the cases of offences reference numbers K 102/03 and K 479/03,it ticked box 1, indicating that the respondent appeared in person at the trial resulting inthe decision in each case. However, in case reference numbers 218/03 and 388/03, itticked box number 2 indicating that the respondent did not appear at the trial resulting inthe decision. In each case, having ticked the box at point 2, the issuing judicial authoritythen proceeded to cross out all boxes at point 3, contrary to the direction in point 3 whichstates: “If you have ticked the box under point 2, please confirm the existence of one ofthe following:…”13. However, information was provided at point 4, even though it is conditional on the tickingof one of the boxes under points 3.1b, 3.2 or 3.3. In case reference K 218/03 it is statedthat the respondent knew about the criminal proceedings because he was interviewed asa suspect on 27th May, 2003, and was informed as to the decision to bring chargesagainst him. It is further stated that during the interview he admitted the charges. Itfurther states that the first hearing was scheduled for 15th September, 2003, and therespondent did not attend court in person. Almost identical information is provided inrelation to case file reference K 388/03.14. Following upon the opening of this application before this Court on 11th December, 2019,this Court directed that further information should be sought from the issuing judicialauthority. Included in the information request was an enquiry as to whether or not therespondent was afforded the opportunity to reopen the question of his guilt or innocenceat the hearing of the application for a consolidated judgment. This resulted in a replydated 10th January, 2020. In answer to that question, the issuing judicial authoritystated that in an application for a consolidated judgment, “the court does not re-examinethe case or give a guilty or not guilty verdict”. The response (to the request for furtherinformation) also stated that, as regards case reference 218/03, a notice of hearing waspersonally served on the respondent on 27th July, 2003. Accordingly, on the face of itthis indicates that the issuing judicial authority might have ticked box 3.1a in relation tothis offence. The additional information also states that a transcript of the order made bythe court on 15th September, 2003, (whereby he was convicted of the relevant offences)together with the appeal guidelines were sent to the respondent on 25th September,2003, but he “did not claim the papers” which were returned following two attempteddeliveries.15. As regards case file reference 388/03, it is stated that the notice of the hearing wasserved on him, but the respondent did not receive the papers because they were returnedfollowing two attempts of service of the same upon him.Page 4 ⇓16. Points of objection were delivered on behalf of the respondent on 10th December, 2019.The respondent placed the applicant on full proof of all mattes required by the Act of2003. It was pleaded in a general way that the EAW does not contain all of theinformation required by the Act of 2003, and so the application should be refused byreason of non-compliance with s. 11 of the Act of 2003.17. It was also pleaded that surrender of the respondent is prohibited by reason of s. 45 ofthe Act of 2003, in circumstances where the EAW/ further information indicated that twoof the judgments had been obtained in circumstances where the respondent was notpresent, and in respect of which he does not have a right to a retrial or appeal. It wasalso pleaded that surrender is prohibited pursuant to s. 37 of the Act of 2003 by reason ofan interference with the rights of the respondent under Article 8 of the EuropeanConvention on Human Rights.18. In any event, only one point of objection was pursued at the hearing of this application,that being that surrender of the respondent is prohibited by s. 45 of the Act of 2003.Before addressing that objection, two further matters arise out of the further informationreceived from the issuing judicial authority dated 10th January, 2020. These are:i. In proceedings relating to the consolidation of several sentences, the court does notre-examine merits of the case, and accordingly does not deliver a verdict on theinnocence or guilt of the person concerned. It follows from this that in theseproceedings, the trial resulting in the decision for the purposes of determining theinnocence or guilt of the respondent, is not the judgment described in the EAW asbeing the decision on which the warrant is based, under case reference K-16/06,but rather is the judgment, in each of the four cases concerned, in which the guiltof the respondent was finally determined.ii. Secondly, in answer to a specific question from this Court, the issuing judicialauthority confirmed that while there are circumstances in which a consolidatedsentence may be “de-aggregated” those circumstances have no application in thiscase. Accordingly, there is no mechanism whereby the consolidated sentence maybe proportionately reduced in the event that the respondent is not surrendered inrespect of all four convictions to which the consolidated judgment relates.Discussion and decision19. It is not in dispute that the respondent was not present for the hearings at which his guiltwas determined in case reference numbers 218/03 and 388/03. However, in case 218/03it is stated that a notice of hearing was personally served on the respondent, and whilethe issuing judicial authority did not tick box 3.1a in para. D, I think that this Court canbe satisfied from the additional information provided that the respondent was served withnotice of the proceedings on 27th July, 2003, and would therefore have been aware of thehearing date of 15th September, 2003.Page 5 ⇓20. The same cannot however be said of the conviction under case file reference 388/03. Therespondent was neither present in court, and nor are any of the circumstances set forth inthe table to para. D of the EAW indicated as being of any application.21. It is not in dispute that, as a general principle, where the Court finds that a person maynot be surrendered for any one of the offences the subject of a consolidated sentence, itis not possible to order the surrender of the person concerned because it is not possible todisentangle the sentence in respect of which surrender has been found to be prohibitedfrom the remaining offences (although this Court has done so in circumstances where theissuing state has provided an assurance that the consolidated sentence will beproportionately reduced, but as indicated above, that is of no application in theseproceedings). This principle was established in Minister for Justice, Equality & LawReform v. Ferenca [2008] 4 IR 480.22. However, it is the applicant’s case in these proceedings that the Court should order thesurrender of the respondent (in respect of all offences) having regard to the conduct ofthe respondent and his own lack of diligence in not attending court or arranging forrepresentation in court in case reference 388/03. The additional information providedstates that the decision to charge the respondent was made on 29th July, 2003, and onthe same day charges were presented to him personally. He received guidelines on hisrights and obligations. He was interviewed as a suspect and admitted the charges andchose not to make a statement. Having regard to all of these circumstances, on the basisof the decision of the Court of Justice of the European Union (“CJEU”) in Dworzecki (C108/16 PPU) it is submitted that the Court may make an order for the surrender of therespondent in respect of this offence, even though he was tried in absentia and did notreceive the notification of the hearing date.23. Moreover, the applicant argues, the Court is not prohibited by s. 45 of the Act of 2003from making an order for surrender in these circumstances. It is submitted that theCourt must interpret s. 45 in a manner that is consistent with the law of the EuropeanUnion, provided that the interpretation is not contra legem. Reliance is placed in thisregard on the decision of the CJEU in the case of Pupino.24. It is further submitted that such an interpretation of s. 45 would not be contra legem, andthat it is open to the Court to interpret the use of the word “shall” as meaning “may”.Reliance was taken upon the decision of this Court in the cases of Minister for Justice &Equality v. Tomas Skwierczynski [2018] IECA 204 and Minister for Justice & Equality v.Surma, a decision of Edwards J. of 3rd December, 2013.25. The respondent, on the other hand, submits that s. 45 demands a literal interpretation.There has not been compliance with the section and therefore surrender is prohibited.The Court is precluded from taking any other approach, and the respondent referred thisCourt to its own decision in the case of Minister for Justice & Equality v. Zarnescu[2020] IEHC 6.Page 6 ⇓26. As is apparent from the decision in Zarnescu, the decision of the Court of Appeal in thecase of Skwierczynski turned on the fact that in that case the appellant not only had aright of appeal against the decision delivered in absentia, but he had actually exercisedthat right of appeal. Accordingly, the Court determined that his rights of defence hadbeen adequately protected and that his surrender was not therefore prohibited by s. 45 ofthe Act of 2003. The circumstances in Zarnescu, as here, were very different and it wasnot open to the Court to arrive at any such conclusion.27. Moreover, since delivering the decision in Zarnescu, and since the hearing of thisapplication, this Court has become aware of the decision of the Court of Appeal in thecase of Minister for Justice & Equality v. Slawomir Palonka. The Court was not referred tothat decision either in these proceedings or in Zarnescu.28. In Palonka the Court was required to consider whether or not it was obliged to refuse thesurrender of the respondent in that case by reason of the fact that box 3.2 of para. D hadbeen ticked, but no information had been provided at point 4 of para. D which states: “Ifyou have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide theinformation about how the relevant condition has been met…” At para. 27 of her decisionin the matter, Finlay Geoghegan J. in the Court of Appeal stated:“Accordingly I have concluded that point 4 of point (d) of the Annex to theEuropean arrest warrant contains a mandatory requirement to provide informationabout how the condition was met where, as on the facts herein, the issuingauthority has ticked the equivalent to box 3.2. Hence s. 45 required the Europeanarrest warrant issued by the Republic of Poland in respect of the appellant to statethe information required by point 4 of point (d) in the Annex to the European arrestwarrant. As it did not do so the High Court was precluded by ss. 16(1)(c) and (e)from making an order for surrender.”29. Prior to arriving at that conclusion, Finlay Geoghegan J. considered the well-knownprinciples of statutory interpretation as set out in Howard v. Commissioners of PublicWorks [1994] 1 IR 101 and also the obligation of the courts to apply and interpretprovisions of national law as far as possible in the light of the wording and purpose of theFramework Decision (Minister for Justice, Equality & Law Reform v. Altaravicius [2006] 3IR 148) provided that the Court does not strain the interpretation to the extent ofinterpreting national legislation contra legem. In her decision, Finlay Geoghegan J.considered not just the provisions of s. 45 of the Act of 2003, but also ss. 16(1)(c) and(e) of the Act of 2003 which, taken together with the opening paragraph of 16(1) of thatAct provides as follows:“16(1)Where a person does not consent to his or her surrender to the issuing state,the High Court may…make an order directing that the person be surrendered tosuch other person as is duly authorised by the issuing state to receive him orher, provided that:Page 7 ⇓(c) The European Arrest Warrant states, where appropriate, the matters requiredby s. 45…(e) The surrender of the person is not prohibited by Part 3.”30. At paras. 15 and 16 of her judgment, Finlay Geoghegan J. stated:“15. To put it another way if the European Arrest Warrant discloses that the person,whose surrender is sought did not appear in person at the proceedings resulting inthe sentence or detention order in respect of which the European Arrest Warrantwas issued then s. 16(1)(c) does not permit a surrender unless the European ArrestWarrant indicates the matters required by s. 45.16. This interpretation, in my view, is the only interpretation permitted by the wordsused by the Oireachtas in s. 16(1)(c) and s. 45 and is consistent with andconfirmed by s. 16(1)(e) of the Act of 2003 as amended. As appears, this is afurther and distinct condition which must be met in accordance with the proviso ins. 16(1). A person may only be surrendered provided that “the surrender of theperson is not prohibited by Part 3”. Section 45 of the 2003 Act falls within Part 3 ofthe Act. Hence s. 16(1)(e) as amended also prohibits the surrender of a person towhom s.45 applies i.e. who has not appeared in person at the proceedings resultingin the sentence or detention order in respect of which the European Arrest Warrantwas issued, unless there is compliance with s.45 i.e. the European Arrest Warrantindicates the matters required by the section.”31. In his judgment in Palonka, Peart J., with whom Finlay Geoghegan J. concurred, arrivedat the same conclusion. At para. 28 of his judgment, he noted that s. 16(1)(e) of the Actof 2003 had been amended in 2012. As originally enacted that subsection made provisionfor a refusal of surrender where “(e) the surrender of the person is not prohibited by Part3 or the Framework Decision (including the recitals thereto)”. The effect of theamendment in 2012 was to delete the underlined words, Peart J. held that “this makes itvery clear that when considering whether surrender is prohibited, the Court is required todo so by reference to the provisions of the Act alone, and insofar as there may be someconflict between the provisions of the Act on a literal interpretation, and an interpretationwhich conforms to the objectives of the Framework Decision, the latter interpretationwould be contra legem.” He went on to say, at para. 29:“The provisions of section 45 are very clear. Under section 16(1)(c) of the Actsurrender is prohibited unless the European arrest warrant states, whereappropriate, the matters required to be stated by section 45… To give thesection a purposive interpretation in the light of the stated objectives andprovisions of the Framework Decision would in this case fly in the face of clearnational legislation.”32. It is of course the case that the decision of the CJEU in Dworzecki was handed down bythe CJEU almost exactly a year after the decision of the Court of Appeal in Palonka. AsPage 8 ⇓mentioned earlier, the applicant in this case relies on Dworzecki, arguing that it affordsthe Court flexibility in its interpretation of the Act of 2003, to the extent that it may takeinto account the conduct of the respondent in considering whether or not surrender isprohibited by s. 45 of the Act of 2003. However, as I pointed out in Zarnescu, Dworzeckiis concerned with an interpretation of the Framework Decision, and not the Act of 2003.To interpret the Act of 2003 in the manner contended for by the applicant would, in thewords of Peart J. in Palonka, “fly in the face of clear national legislation.”33. To all of the above I would add that in the more recent decision of this Court (Coffey J.) inthe case of Artur Jerzy Zielinksi, an ex tempore judgment delivered on 17th February,2020, Coffey J. refused an order for surrender on the grounds that the requirements of s.45 of the Act of 2003 had not been met, even though he also found, in the case of someof the charges at least, that the in absentia and conviction and sentence arose from amanifest lack of diligence on the part of the respondent. He, too, considered Dworzecki,Palonka and Skwierczynski, but considered the latter to be a decision on its own narrowfacts.34. I am in no doubt at all that, notwithstanding the level of involvement that the respondentin these proceedings had in the various proceedings before the Polish Courts, this Court innonetheless precluded from making an order for the surrender of the respondent becausethe requirement of s. 45 of the Act of 2003 have not been satisfied. The application must,therefore, be refused.
Result: Application refused.
Minister for Justice & Equality v Maguire, Minister for Justice & Equality v Farrell
[2020] IEHC 77 (14 February 2020)
U
Page 1 ⇓THE HIGH COURT[2020] IEHC 77[2017 No. 58 EXT]BETWEENMINISTER FOR JUSTICE & EQUALITYANDCIARAN MAGUIRETHE HIGH COURTAPPLICANTRESPONDENT[2017 No. 59 EXT]BETWEENMINISTER FOR JUSTICE & EQUALITYAPPLICANTANDSEAN PAUL FARRELLRESPONDENTJUDGMENT of Mr. Justice Binchy delivered on the 14th day of February, 20201. By these applications, the applicant seeks the surrender of each of the respondentspursuant to European Arrest Warrants dated 10th March, 2017 (“the EAWs”) for thepurpose of the prosecution of each of the respondents arising out of the same events thatoccurred in Northern Ireland on 18th June, 2015, in which it is alleged that each of therespondents played an active part.2. The hearing of the applications commenced on 5th December, 2019, and concluded on6th December, 2019. However, further submissions were received by the Court on 17thDecember, 2019 in light of further information provided, to which I refer below. Theidentity of the respondents is not in dispute and I am satisfied that the persons before theCourt are the respondents named in the EAWs.3. The issuing judicial authority (“IJA”) in each case is stated, at para. I of the EAWs, to bethe District Judge (Magistrates’ Court) sitting at Laganside Court, Belfast Magistrates’Court. The EAWs were both endorsed by this Court on 20th March, 2017.4. In each case it is stated that two warrants of arrest have been issued (for eachrespondent) in respect of one offence of attempted murder and one offence of possessionof explosives with intent. For the offence of attempted murder, the IJA has in each caseticked the box for “murder, grievous bodily injury” at para. E (1) of the EAWs. There wasno dispute about this, and accordingly it is not necessary for the applicant to demonstratecorrespondence in relation to these offences. In relation to the offence of unlawful andmalicious possession and control of an explosive substance, the applicant submits that onthe facts of this case (which I address below) the offence corresponds to an offence unders. 3(1)(b) of the Explosive Substances Act, 1883 (as amended by s. 4 of the Criminal Law(Jurisdiction) Act, 1976 and s. 36 of the Criminal Justice Act, 1999) which provides:-“3(1) A person who in the State or (being an Irish citizen) outside the State unlawfullyand maliciously –Page 2 ⇓(a) …(b) Makes or has in his possession or under his control an explosive substancewith intent by means thereof to endanger life, or cause serious injury toproperty, whether in the State or elsewhere, or to enable any other person soto do,Shall, whether any explosion does or does not take place, and whether any injuryto person or property is actually caused or not, be guilty of an offence and, onconviction on indictment [shall be liable to a fine or imprisonment] for a term notexceeding 20 years and the explosive substances shall be forfeited.”5. It was not argued on behalf of the respondents that the actions allegedly undertaken bythe respondents as set forth in the EAWs do not correspond to this offence. I am satisfiedthat the actions, if committed in this jurisdiction (or indeed outside the State if committedby an Irish citizen) would indeed constitute an offence under Irish law and accordinglycorrespondence is established as regards this offence.6. The EAWs state that the offence of attempted murder is subject to a sentence ofimprisonment for life, and possession of explosives with intent is also subject to asentence of imprisonment for life. Accordingly, minimum gravity is established in relationto each offence.7. At the hearing of these applications, I was satisfied that none of the matters referred to inss. 21A, 22, 23 and 24 of the European Arrest Warrant Act 2003 (as amended) (the “Actof 2003”) arise, and that the surrender of the respondents is not prohibited for any of thereasons set forth in any of those sections.Description of actions of respondents as set forth in EAWs8. At paragraph E of the EAWs it is stated that on 18th June, 2015, at approximately 02.45hours, a serving police officer in Northern Ireland awoke and looked out her bedroomwindow to see a male on the ground at the driver’s door of her husband’s vehicle. Herhusband is also a serving police officer. She knocked at the window causing the male toflee and then called the police. At the scene police found a device underneath the policeofficer’s car, which was found to be an improvised explosive device.9. Police officers travelling to the scene observed two vehicles driving in convoy at highspeed from the direction of the town of Eglinton. These vehicles travelled across theborder, but in the meantime the Police Service of Northern Ireland (“PSNI”) had passedon descriptions of the vehicles to An Garda Síochána, and a Garda vehicle identified oneof these vehicles passing through the village of Killygordon (15km from Lifford) and gavechase to the vehicle. The vehicle was a Volkswagen Passat and matched the descriptionof one of the vehicles given by the PSNI to An Garda Síochana. The Gardaí successfullyapprehended the Passat which had three male occupants. All three were arrested onsuspicion of membership of an illegal organisation. The driver of the Passat is alleged toPage 3 ⇓be one of the respondents, Mr. Maguire. The other occupants were the other respondent,Mr. Farrell, and the third is stated to be Mr. Seán McVeigh.10. The EAW relating to Mr. Farrell states that he was taken to Milford Garda Station wherehe was interviewed by Gardaí after caution and subsequently released without charge.Mr. Farrell was found to have in his possession a Toyota car key. The other car observedtravelling in convoy with the Volkswagen Passat was a Toyota. The registration numberof both the Passat and the Toyota had been noted and both vehicles were identified ashaving been stolen. The Toyota key taken from Mr. Farrell was tested on the Toyota(which was later recovered) and it successfully worked in the door locks and ignition. Carmats from the vehicles were both found to have explosive residue. Forensic examinationof the DNA profile recovered from the Passat matched Mr. Farrell’s DNA.11. Mr. Maguire was taken to Letterkenny Garda Station where he was also interviewed byGardaí (after caution) and released without charge. His DNA profile was recovered from adifferent pair of gloves found in the vehicle. A low quantity of explosive material wasdetected in one of the gloves, and also on jeans and a Wrangler hooded coat seized fromMr. Maguire.12. Importantly, during the course of this hearing it was acknowledged by the applicant thatwhile in custody, each of the respondents received the standard form of caution that theywould receive in this jurisdiction to the effect that they were not obliged to say anythingbut that anything that they might say would be taken down in writing and might be givenin evidence. It is common case that this is the extent of the caution given to therespondents while detained by the Gardaí for questioning, and that the caution did notextend to warning them that, if they remained silent in custody, inferences might bedrawn from that silence in the event that they were surrendered to Northern Ireland fortrial in that jurisdiction. It is also common case that both respondents elected to exercisetheir right to remain silent and that neither made a statement of any kind to the Gardaí.13. It is relevant at this juncture also to record that prior to the hearing of this application,the respondents had each issued judicial review proceedings against the applicantwhereby they sought orders of mandamus requiring the applicant to respond to requestsfor information in relation to and arising out of their detention by the Gardaí, and furthersought an order of mandamus requiring the applicant herein to provide informationrequested by the applicant, purportedly pursuant to the provisions of Directive2012/13/EU of the European Parliament and of the Council of 22nd May, 2012, on theright to information in criminal proceedings (“the Directive”). The reliefs sought wererefused both in the High Court by Donnelly J. in a decision delivered on 11th February,2019, and, subsequently, in the Court of Appeal in a decision delivered by that court(Kennedy J.) on 1st November, 2019. This latter decision in particular has somerelevance to these proceedings in the context of the reliance placed by both respondentson the Directive, in opposition to this application.14. In its decision in the judicial review proceedings, the Court of Appeal also indicated thatjudicial review was not the appropriate mechanism for seeking orders for delivery of thePage 4 ⇓documentation and other materials that they sought, and that the appropriate applicationwas for an order of discovery of the same. Accordingly, the respondents each thenmoved applications for discovery before this Court, which applications were dismissed in adecision delivered by this Court on 26th November, 2019. The respondents then appealedthat decision, and that appeal was dismissed in a judgement of the Court of Appealdelivered on 4th December, 2019.15. A decision was taken by the Director of Public Prosecutions not to try the respondents inthis jurisdiction for the offences for which their surrender is sought in Northern Ireland.Materials gathered by the Gardaí in the course of their investigation have been handedover to the authorities in Northern Ireland. Although, as will be seen, the respondentscontend that there was a violation of their constitutional rights while in custody, noallegation was made that these materials were obtained unlawfully by the Gardaí.Points of objectionIn the case of Ciaran Maguire16. Points of objection were first filed on behalf of Mr. Maguire on 3rd May, 2017. Sevenobjections were raised, but just one of these was pursued at the hearing of theapplication i.e. that the surrender of the respondent is prohibited by s. 37 of the Act of2003, because it would be in breach of his constitutional rights and in particular thoserights guaranteed by Article 38 and 40 of Bunreacht na hÉireann. Specifically, it ispleaded that:-(i.) Evidence taken in violation of his constitutional rights would be tendered againsthim at his trial.(ii.) That if surrendered to Northern Ireland he would not enjoy the constitutionalprotection of his life, liberty and health as guaranteed by Bunreacht na hÉireann.17. A further point of objection was filed on behalf of Mr. Maguire on 6th March, 2019. Bythis objection, it is pleaded that, if tried for the offences described in the EAW, he will berequired to give evidence in his own defence, failing which an adverse inference may bedrawn by the court based upon his failure to give such evidence in circumstances wherethe court is satisfied that the prosecution case against him is sufficiently strong to requirean answer from the defendant. This objection arises out of Articles 3 and 4 of TheCriminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”), and it is claimedthat this is contrary to Mr. Maguire’s constitutional right to trial in due course of lawpursuant to the provisions of Article 38 of Bunreacht na hÉireann.18. In their written submissions, counsel for Mr. Maguire also submitted that he was notadequately warned, while in Garda custody, of a real and serious risk of anunconstitutional intrusion of his right to silence in the trial process in Northern Ireland.19. At the commencement of the hearing of this application, counsel for Mr. Maguire putforward a further objection on his behalf for the first time. While counsel for the applicantsubmitted that it was too late for the respondents to advance new objections, hePage 5 ⇓conceded that the applicant would not be prejudiced if the objection were allowed, andaccordingly I allowed the objection to be made on behalf of Mr. Maguire. As far as theformal pleadings are concerned, counsel for Mr. Maguire submitted that this newobjection fell within a general objection made by Mr. Maguire in his points of objection of3rd May, 2017, where it is pleaded that the EAW does not contain all of the information ordetails required by the Act of 2003. Specifically, however, it was now asserted on behalfof Mr. Maguire that the EAW does not contain the information required by the Directive.Article 1 of the Directive provides:-Subject matterThis Directive lays down rules concerning the right to information of suspects oraccused persons, relating to their rights in criminal proceedings and to theaccusation against them. It also lays down rules concerning the right to informationof persons subject to a European Arrest Warrant relating to their rights.”20. Article 3 of the Directive then deals with the entitlement to information about rights ofsuspects or accused persons, and although it is not stated, these by implication are rightsupon arrest, such as the right of access to a lawyer and the right to remain silent. Article4 of the Directive provides that Member States shall ensure that suspects or accusedpersons who are arrested are provided with a written letter of rights, as well as, inter alia,the right of access to the materials of the case.21. Article 5 is headed “Letter of Rights in European Arrest Warrant Proceedings” and is theonly article that deals specifically with such proceedings in the Directive. It was notcontended by the respondents or argued on their behalf in these proceedings that theydid not receive their rights under Article 5 of the Directive.22. Article 6 of the Directive deals with the right to information about the accusation, andArticle 7 sets out the rights of access to the materials of the case. Article 7.1 provides:-“Where a person is arrested and detained at any stage of the criminal proceedings,Member States shall ensure that documents related to the specific case in thepossession of the competent authorities which are essential to challengingeffectively, in accordance with national law, the lawfulness of the arrest ordetention, are made available to arrested persons or their lawyers.”This right is expanded upon and set out in greater detail in sub articles 7.2 – 7.5.23. Counsel for Mr. Maguire, in advancing this argument, accepts that the Court of Appeal, inthe judicial review proceedings, has already addressed the entitlement of personsarrested pursuant to a European Arrest Warrant, to information pursuant to the provisionsof the Directive in this regard it is helpful to set forth the conclusions of Kennedy J. on theissue at paras. 74 – 77 of her decision:-“74. Article 1 of the Directive addresses the subject matter of the Directive. The termsof the article draw a clear distinction between the rights of suspects or accusedpersons relating to criminal proceedings and to the accusation against them and thePage 6 ⇓right to information of persons subject to a European Arrest Warrant. Article 7which concerns the access to documents does not have application to a personarrested on foot of a EAW. The provision under the Directive which concerns EAWproceedings is limited to that of Article 5 which provides for a letter of rights.Annex II sets out a model letter of rights as provided for in Article 5 whereas themodel for rights to be provided for in terms of Article 4 which concerns suspects oraccused who are arrested or detained is set out in Annex I. It is therefore clearthat the provisions of Article 7 do not apply to a person arrested on a EAW.75. The appellants are not facing criminal proceedings in this jurisdiction and thereforecannot rely on the provision of Article 6 or Article 7. Article 5 applies to those whoare arrested for the purpose of the execution of a European Arrest Warrant. Thosepersons must be provided promptly with an appropriate letter of rights in terms ofAnnex II but cannot rely on the provisions of Article 6 or 7.76. In my view there is no basis to distinguish the decision in EP on the basis that theappellants are seeking information from the authorities in this jurisdiction ratherthan from the issuing state. Donnelly J. interpreted the Directive and the rights ofthe Directive provides for persons arrested on criminal charges and arrested on aEAW. The interpretation is not therefore based on whether the information soughtfrom the requesting State or the issuing State.77. In the circumstances I am satisfied that the trial judge was correct in finding thatthere was no evidence that the appellants’ rights under the Directive would not beavailable to them in the requesting State should they be surrendered.”24. Counsel for Mr. Maguire, while acknowledging the decision of the Court of Appeal in thejudicial review proceedings as regards the interpretation of the Directive argues that thatdecision was in a particular context, and that the context is not the same when this Courtis giving consideration to the application to surrender a person on foot of a EuropeanArrest Warrant. He submits that there is more at stake than what was sought in thejudicial review proceedings and that in an application such as this, the issue is about theobligations of the issuing state to ensure that when somebody is arrested elsewhere inEurope pursuant to a European Arrest Warrant, that person is informed of the basis forthe arrest and provided with relevant information about the arrest, and in particular isprovided with information as regards his/her right to appeal or to challenge in the issuingstate the underlying domestic arrest warrant on which the issue of the European ArrestWarrant depends. He argued also that the principle of equivalence in European lawrequires that persons arrested on foot of a European Arrest Warrant should receiveequivalent treatment to those arrested pursuant to national arrest warrants, and it wouldbe anomalous and contrary to that principle if those arrested pursuant to a EuropeanArrest Warrant did not enjoy the full range of rights and entitlements provided by theDirective.25. In advancing these arguments, counsel for Mr. Maguire relied upon a recent referencemade by a court in Bulgaria to the Court of Justice of the European Union (“CJEU”), inPage 7 ⇓which the Bulgarian court posed questions as to the applicability of the Directive and inparticular Articles 4, 6 and 7 of the Directive, to a person who has been arrested on thebasis of a European Arrest Warrant. This reference appears to have been procuredthrough an internet search and the precise status of the reference is unknown. However,that is not to doubt that such a reference has been made. Counsel for Mr. Maguiresubmits that notwithstanding the decision of the Court of Appeal as regards the limitedrelevance of the Directive to European Arrest Warrant proceedings, this Court shoulddefer a decision on this application pending a decision of the CJEU on the reference by theBulgarian court, or alternatively that this Court should make a similar reference to theCJEU.26. In this regard, counsel for Mr. Maguire further argues that the Court should have regardto recent decisions of the CJEU concerning the entitlement of public prosecutors to issueEuropean Arrest Warrants. Initially, counsel referred to cases such as OG (C 508/18), PI(C 82/19 PPU) and PF (C 509/18). These cases address issues arising out of the issue ofEuropean Arrest Warrants in some Member States by prosecutors, rather than by judges,and focus on the requirement under the Framework Decision that the issuance of aEuropean Arrest Warrant must be subject to a dual level of protection, the first being atthe stage of issue of a national arrest warrant , and the second being at the point of issueof a European Arrest Warrant. They consider how this dual level of protection may beachieved where it is a prosecutor issues the European Arrest Warrant.27. Because it was indicated to the Court that there were still further decisions of the CJEUawaited, in which these matters are also addressed, and which were due to be deliveredon 12th December, 2019 and which might be of relevance to the within proceedings, theproceedings were adjourned further to 17th December, 2019. The decisions which wereawaited were indeed delivered on 12th December, 2019, although no official translationswere available in English. In any case, counsel for Mr. Maguire produced supplementalsubmissions arising out of those decisions on the basis of unofficial translations. In thecase of XD (C-625/19 PPU), in a passage relied upon by the respondents, the CJEUstated, as regards effective judicial protection in European Arrest Warrant applicationsthat:-“The Framework Decision 2002/584 forms part of a comprehensive system ofguarantees relating to the effective judicial protection provided for by other Unionrules, adopted in the field of judicial cooperation in criminal matters, whichcontribute to facilitating the exercise of the rights of the persons sought on thebasis of a EAW even before he or she is handed over to the Member State ofprogramme.”(The use of the words “of programme” are not understood and may be a translationerror.)28. An identical paragraph appeared in another decision delivered on the same date in thecase of YC (C-626/19 PPU) at p. 7 thereof. In these cases, the CJEU held that it ispermissible for the second level of protection in the issue of a European Arrest Warrant toPage 8 ⇓be provided by means other than judicial oversight in the issue of the warrant, such as byproviding a mechanism to appeal or otherwise challenge the issue of the European ArrestWarrant, either before or after the surrender of the requested person (see para. 70 of thedecision in YC), or alternatively by affording the requested person the opportunity tochallenge the national arrest warrant, which formed the basis for the issue of theEuropean Arrest Warrant, as in XD. In both judgments the CJEU, in the course of itsjudgment made reference to the provisions of another Directive, Directive 2013/48/EU onthe right of access to a lawyer in criminal proceedings (the “2013 Directive”). At para. 73in YC it is stated:-“73. Article 10 of Directive 2013/48/EU of the European Parliament and of the Council ofthe 22nd October, 2013, on the right of access to a lawyer in criminal proceedingsand in proceedings relating to the warrant of European judgment, on the right toinform a third party upon deprivation of liberty and on the right of persons deprivedof their liberty to communicate with third parties and with consular authorities…,requires the competent authority of the executing Member State to inform, withoutundue delay after deprivation of liberty of the persons whose surrender isrequested, that they have the right to assign a lawyer in the issuing MemberState.”29. Neither Ireland nor the United Kingdom have adopted the 2013 Directive. Counselargued that the fact that Ireland has not done so serves to emphasise the importance ofthe applicability of the Directive in European Arrest Warrant proceedings. It is submittedthat the EAWs are invalid and defective, since they did not contain information on theavailability, under the laws of the issuing state, of challenging the lawfulness of theissuing of the EAWs, and nor was such information otherwise provided to therespondents.In the case of Sean Paul Farrell30. Points of objection were first delivered on behalf of Mr. Farrell on 5th May, 2017. Fourobjections were raised by this notice, but just one of these objections was pursued at thehearing of this application. By this objection, Mr. Farrell puts the applicant on full proofthat the EAW relating to Mr. Farrell is compliant with the Act of 2003, and that thesurrender of Mr. Farrell would be in accordance with the Act of 2003 and the CouncilFramework Decision of 13th June, 2002, on the European arrest warrant and thesurrender procedure between Member States (2002/584/JHA) (the “FrameworkDecision”).31. A further point of objection was delivered on behalf of Mr. Farrell on 27th February, 2019.This is in identical terms to the further point of objection delivered on behalf of Mr.Maguire on 5th March, 2019, which I have set out above.32. Mr. Farrell also adopted the objection advanced, for the first time, on behalf of Mr.Maguire at the commencement of the hearing of this application, as summarised at para.19 above.Page 9 ⇓33. Each of Mr. Farrell and Mr. Maguire adopted the objections made by the other. All of theobjections pursued by them at the hearing of the application are summarised above; inresponse to a specific question from me, counsel for the respondents confirmed that theywere not pursuing any of the other objections made by them in their points of objection.The Criminal Evidence (Northern Ireland) Order 198834. Since they are so central to these proceedings I set out below the provisions of Articles 3and 4 of the 1988 Order:-“Circumstances in which inferences may be drawn from accused’s failure to mentionparticular facts when questioned, charged, etc.3.— (1) Where, in any proceedings against a person for an offence, evidence is giventhat the accused—(a) at any time before he was charged with the offence, on being questionedunder caution by a constable trying to discover whether or by whom theoffence had been committed, failed to mention any fact relied on in hisdefence in those proceedings; or(b) on being charged with the offence or officially informed that he might beprosecuted for it, failed to mention any such fact, being a fact which in thecircumstances existing at the time the accused could reasonably have beenexpected to mention when so questioned, charged or informed, as the casemay be, paragraph (2) applies.(2) Where this paragraph applies—(a) the court, in determining whether to commit the accused for trial or whetherthere is a case to answer;(b) a judge, in deciding whether to grant an application made by the accusedunder(i) Article 5 of the Criminal Justice (Serious Fraud) (Northern Ireland)Order 1988 (application for dismissal of charge where a case of fraudhas been transferred from a magistrates’ court to the Crown Courtunder Article 3 of that Order); or(ii) paragraph 4 of Schedule 1 to the Children’s Evidence (NorthernIreland) Order 1995 (application for dismissal of charge of violent orsexual offence involving child in respect of which notice of transfer hasbeen given under Article 4 of that Order); and(c) the court or jury, in determining whether the accused is guilty of the offencecharged,may—Page 10 ⇓(i) draw such inferences from the failure as appear proper;(2A) Where the accused was at an authorised place of detention at the time of thefailure, paragraphs (1) and (2) do not apply if he had not been allowed anopportunity to consult a solicitor prior to being questioned, charged or informed asmentioned in paragraph (1).(3) Subject to any directions by the court, evidence tending to establish the failuremay be given before or after evidence tending to establish the fact which theaccused is alleged to have failed to mention.(4) This Article applies in relation to questioning by persons (other than constables)charged with the duty of investigating offences or charging offenders as it applies inrelation to questioning by constables; and in paragraph (1) “officially informed”means informed by a constable or any such person.(5) This Article does not—(a) prejudice the admissibility in evidence of the silence or other reaction of theaccused in the face of anything said in his presence relating to the conduct inrespect of which he is charged, in so far as evidence thereof would beadmissible apart from this Article; or(b) preclude the drawing of any inference from any such silence or other reactionof the accused which could be drawn apart from this Article.(6) This Article does not apply in relation to a failure to mention a fact if the failureoccurred before the commencement of this Article.Accused to be called upon to give evidence at trial4.—(1) At the trial of any person (other than a child) for an offence paragraphs (2)and(4) apply unless—(a) the accused’s guilt is not in issue; or(b) it appears to the court that the physical or mental condition of the accusedmakes it undesirable for him to… give evidence;but paragraph (2) does not apply at the conclusion of the evidence for theprosecution, his legal representative informs the court that the accused will giveevidence or, where he is unrepresented, the court ascertains from him that he willgive evidence.(2) Where this paragraph applies, the court shall, at the conclusion of the evidence forthe prosecution, satisfy itself (in the case of proceedings on indictment conductedwith a jury, in the presence of the jury) that the accused is aware that the stagehas been reached at which evidence can be given for the defence and that he can,Page 11 ⇓if he wishes, give evidence and that, if he chooses not to give evidence, or havingbeen sworn, without good cause refuses to answer any question, it will bepermissible for the court or jury to draw such inferences as appear proper from hisfailure to give evidence or his refusal, without good cause, to answer any question.(4) Where this paragraph applies, the court or jury, in determining whether theaccused is guilty of the offence charged, may—(a) draw such inferences as appear proper from the failure of the accused to giveevidence or his refusal, without good cause, to answer any question;(5) This Article does not render the accused compellable to give evidence on his ownbehalf, and he shall accordingly not be guilty of contempt of court by reason of afailure to do so.(6) For the purposes of this Article a person who, having been sworn, refuses to answerany question shall be taken to do so without good cause unless—(a) he is entitled to refuse to answer the question by virtue of any statutoryprovision, or on the ground of privilege; or(b) the court in the exercise of its general discretion excuses him from answeringit.(7) Where the age of any person is material for the purposes of paragraph (1), his ageshall for those purposes be taken to be that which appears to the court to be hisage.(8) This Article applies—(a) in relation to proceedings on indictment for an offence, only if the personcharged with the offence is arraigned on or after the commencement of thisArticle;(b) in relation to proceedings in a magistrates’ court, only if the time when thecourt begins to receive evidence in the proceedings falls after thatcommencement.”Further Information35. On my direction the central authority here made a request for further information of theIJA by letter of 20th December, 2019, as follows:-“1. Is it open to a trial court in the Issuing State (Northern Ireland) to draw inferencespursuant to article 3 and/or article 4 of the Criminal Evidence (Northern Ireland)order 1998 in connection with interviews outside the territory of the Issuing State(Northern Ireland), specifically those conducted in Milford and Letterkenny Gardastations with the two respondents?”Page 12 ⇓36. A reply to this request for information was received from District Judge Fiona Bagnall,presiding District Judge at Laganside Courts, by letter dated 10th January, 2020. In thisreply, District Judge Bagnall divided the question asked into two questions, as follows:-1) Is it open to a trial court in the Issuing State (Northern Ireland) to draw inferencespursuant to Article 3 and/or Article 4 of The Criminal Evidence (Northern Ireland)Order 1988 in connection with interviews outside of the territory of the IssuingState (Northern Ireland). Specifically, those conducted in Milford and LetterkennyGarda Stations with the two respondents?2) Is it open to a trial court in Northern Ireland to draw inferences pursuant to Article4 of The Criminal Evidence (Northern Ireland) Order 1988 in connection withinterviews outside the territory of the issuing state, specifically those conducted inMilford and Letterkenny Garda Stations with the two respondents?37. In reply to question 1, District Judge Bagnall stated:-“In an interview conducted in Northern Ireland, the suspect is cautioned inaccordance with Article 3 of the Criminal Evidence (NI) Order 1988 as follows:‘You do not have to say anything but I must caution you if you do notmention when questioned something which you later rely on in court it mayharm your defence. If you do say anything it may be given in evidence.’` In the circumstances of this case, where the Garda interviews have been conductedwithout the caution under Article 3 being administered, the prosecution would notask the court to draw inferences pursuant to Article 3 of the 1988 Order and it isnot considered an adverse inference could be drawn by the trial court of its ownvolition.”38. In answer to the second question posed, District Judge Bagnall replied as follows:-“It is open to a court to draw an adverse inference under Article 4 of the 1988Order if either accused does not give evidence on his own behalf at trial. Howeverthis is an entirely separate matter to their decision not to answer questions duringGarda interview. Their position adopted at interview is not relevant to the inferencethat can be drawn under Article 4. It should be noted that the ECHR in Murray v.U.K. has found that the provisions of the 1988 Order did not constitute a violationof Article 6 (1) of the Convention.”Affidavits of Sean Devine BL39. Affidavits of laws were sworn on behalf of Mr. Farrell by Sean Devine BL, a member of theBar of Northern Ireland who has practiced in that jurisdiction continuously since 2007. Heis also a member of the Bar of Ireland. He deposes as to the possible impacts of Articles3 and 4 of the 1988 Order on the trial of Mr. Farrell. The first affidavit was sworn on 4thDecember, 2019, in advance of these proceedings, and his second affidavit was filed on29th January, 2020, in order to address the response received by this Court from the IJAPage 13 ⇓to the request for additional information made by this Court pursuant to s. 20 of the Actof 2003 referred to above.40. In his first affidavit, Mr. Devine states, at para. 20, inter alia:-“In my opinion, having regard to the various statutory provisions relating to thedrawing of inferences from failure to answer questions, it is unlikely that theprosecution would succeed in persuading a trial judge to draw adverse inferencesfrom the failure of Mr. Farrell to answer questions during Garda interview.Regarding the jurisdiction of the trial judge to draw an adverse inference from thesilence of the accused at trial, it is highly likely, in my opinion, that any trial judgein Northern Ireland would accede to an application by the Crown to draw suchinferences, based on the evidence adduced at trial other than his failure to answerquestions asked by Gardaí. However, I cannot say, as a matter of law, that thetrial judge would not be entitled to take into account the opportunity Mr. Farrell hadto offer explanations to Gardaí, which said opportunity was declined by him.Indeed, the Crown will be likely to invite the Court to look at ‘all of thecircumstances’ when deciding whether to draw such inferences (and the extent ofthose inferences) and that could include his decision not to respond to Gardaíquestioning.”41. In relation to the adverse inferences which may be drawn under Article 4 of the 1988Order, Mr. Devine avers, at para. 31:-“The judge must tell the jury that the burden of proof remains upon the prosecutionthroughout and that the defendant is entitled to remain silent. An inference fromfailure to give evidence cannot on its own prove guilt. Therefore, the jury must besatisfied that the prosecution have established a case to answer before drawing anyinferences from silence. Importantly, and perhaps surprisingly, the judge shouldnot go further and say that the case is not strong and they should therefore be lessready to draw an inference against him. The rationale being that this would involvethe judge making an assessment at the strength of the prosecution case whichwould pre-empt the jury’s role.”42. In his second affidavit, Mr. Devine addresses the additional information provided byDistrict Judge Bagnall. In relation to Article 3 of the 1988 Order, he avers that while hedoes not take issue with the response given by District Judge Bagnall, nonetheless hebelieves “that the Crown will have a wide discretion as to how it puts its case and it ishighly likely that they will place before the Court a detailed exposition of Mr. Farrell’sknown movements and activities in the time immediately after the events that form thesubject of the charges in this case.” At paras. 14 and 15 of his second affidavit heavers:-“14. I say that the explanations from the parties about the fact that the interviews tookplace in Milford Garda station and that, for example, no reliance is placed uponthose interviews as the ‘incorrect’ warning was given (i.e. a warning which wouldPage 14 ⇓not trigger the use of Article 3) could or would probably lead to judicial questionsconcerning the wording of the warning that was given.15. I say that the precise impact of this is difficult to quantify but I believe that anyimpact could only be detrimental to an accused, even in the absence of a statutoryadverse inference under Article 3. I say further that this is especially so within thecontext of trial proceedings in Northern Ireland, where practitioners and Courts areconditioned to the fact that silence during interview can have very significant andharmful effects upon an accused’s defence at trial, due to the existence of the 1988Order for such a long time. I say that any trial Court in Northern Ireland wouldexpect the defence to be keen to adduce an exculpatory account, if given duringinterview, and so the absence of such an account would inevitably lead to apresumption that the accused remained silent. In my opinion, this could only accrueto the detriment of the accused.”43. At para. 17 of his second affidavit he avers:-“I say that the UK response dated 10th January 2020, composed with the kindassistance of the PPSNI, is couched in suitably and appropriately qualified terms.That is, it states that “it is considered that” the trial court could not, of its ownmotion, take silence in the Garda Station into account in deciding the nature of theadverse inference from silence in the trial. I would tend to agree with thisproposition, subject to the discussion above in terms of the fact that the existenceof these interviews will inevitably be a significant degree of focus upon Mr. Farrell’sarrest and detention for a period of time which was consistent with him beinginterviewed by police. Under normal circumstances, these interviews would, at thevery least, be referred to.”44. While each of the respondents filed their own points of objection, at hearing each adoptedthe objections of the other to the application. The points of objection formally served byeach of the respondents each contain objections that were not pursued at the hearing ofthe application, and which counsel for the respondents confirmed were not being reliedupon by the respondents. This decision, therefore, is concerned only with thoseobjections argued on behalf of the respondents at the hearing of the application, which Iaddress below.Discussion and decision45. I will first address the arguments made as regards the entitlement to informationpursuant to the Directive. The respondents accept that the Court of Appeal has alreadyruled, in the judicial review proceedings, on the interpretation and application of theDirective to these proceedings. However, they seek to distinguish that decision and theapplication that was then before that court from the arguments that they are making inthese proceedings that their clients have an entitlement to information under theDirective. It is suggested that there is some distinction to be drawn between what isdescribed as a “disclosure matter” in the judicial review proceedings and the informationrequired to be given at the time of arrest on foot of the European Arrest Warrant.Page 15 ⇓46. It is correct to say that the respondents, in seeking the reliefs they sought in the judicialreview proceedings relied on more than just the Directive, such as statutory regulations,fair procedures and due process (see paras. 7-11 of the decision of Donnelly J. in thisCourt). Also, some of the materials they sought by way of those proceedings were,arguably, outside the scope of the Directive, even if the Directive was found to beapplicable, but there is no need to consider that possibility in any detail. I mention it onlybecause for these reasons there may be some subtle distinction to be drawn between thecontext in which the Directive was invoked in the judicial review proceedings and thecontext in which it is invoked in these proceedings. But if there is, it is so subtle as to beinsignificant.47. In para. 6 (ii) of her decision, Donnelly J. records that the respondents were seeking anorder of mandamus requiring the first respondent (in those proceedings) to provide theinformation requested by the applicant pursuant to the provisions of EU Directive13/2012. Both Donnelly J. and, on appeal the Court of Appeal ruled very clearly that theprovisions of the Directive which the respondents are seeking to invoke in theseproceedings are provisions which only have application when a person is arrested, in theordinary course of proceedings, to face charges in the same Member State in which thatarrest takes place, as distinct from upon arrest pursuant to a European Arrest Warrant.The respondents are not charged with any criminal offence in this jurisdiction. In so far asthere was a criminal investigation here, it ended with the decision of the DPP not toproffer charges against them. The Court of Appeal has clearly ruled that, in EuropeanArrest Warrant proceedings, the entitlement of arrested persons is restricted to Article 5of the Directive. Furthermore, Donnelly J. had previously handed down a decision toprecisely the same effect in Minister for Justice Equality and Law Reform v. E.P.[2015] IEHC 662. This Court is bound by those decisions.48. So far as the reference by the Bulgarian court to the CJEU is concerned, very little isknown about the status of that reference. There is nothing to indicate that it has beenaccorded the expedited procedure. No authority was opened to this Court as to theapproach to be taken when a court is informed that questions that might be of relevanceto the deliberations of a court in one Member State, have been sent for consideration tothe CJEU by the courts of another Member State. However, in the particularcircumstances of this case, and having regard to:-1) The uncertainty as to whether or not the reference of the Bulgarian Court has beenaccorded the expedited procedure;2) The objectives of the Framework Decision to provide a simplified and expeditioussystem of surrender, between Member States, of persons wanted for prosecution ofoffences or serving sentences handed down by a Member State;3) The fact that this issue has already been the subject of two detailed judgments ofthis Court, and one of the Court of Appeal.Page 16 ⇓It is my view that it would be both incorrect and undesirable for this Court to deferdecision on this application pending a decision from the CJEU on the reference made bythe Bulgarian court, or for this Court to make any reference of its own to the CJEU.49. While counsel for Mr. Maguire argued that, since neither Ireland nor the United Kingdomhave adopted the 2013 Directive, this lends even greater force to the argument that therespondents should be entitled to receive the information provided for under theDirective, I cannot accept this argument. The fact is that the 2013 Directive has not beenadopted by either the issuing state or the executing state in this application. It is, quitesimply, irrelevant to these proceedings. Moreover, the fact that it has not been adoptedeither by this State or by the United Kingdom, cannot be used for the purpose ofoverturning or in some fundamental way changing the interpretation of the Directive bythe Court of Appeal. The fact that this State has elected not to adopt one directive,cannot be a basis to alter the meaning or interpretation of another.50. Insofar as reliance has been placed upon recent decisions of the CJEU, these cases wereall concerned with problems arising from the issue of European Arrest Warrants byprosecutors. In the cases referred to above, the CJEU held that the possibility ofchallenging the issue of a national arrest warrant or a European Arrest Warrant in theissuing state can offer a solution to this problem. It appeared to take some comfort fromArticle 10 (4) of the 2013 Directive, which deals with the right of access of a requestedperson to a lawyer in the issuing state, presumably because that might help to fulfil therights of a requested person to challenge the validity of the national arrest warrant or theEuropean Arrest Warrant. I might add that it is notable that Article 10(6) of the 2013Directive provides that the right of a requested person to appoint a lawyer in the issuingstate is stated to be without prejudice to the time limits set out in the FrameworkDecision. In any case, it is clear that those recent decisions of the CJEU only havepractical application in those Member States in which the European Arrest Warrant isissued by a prosecutor and not by a court. That does not arise in these proceedings. Therespondents have been accorded their dual level of protection through judicial oversight inthe issue of both the national arrest warrants and the EAWs.51. Finally, insofar as arguments were advanced on the basis of the principle of equivalence,they were not developed in any meaningful way and no authorities were opened to theCourt as to its application in these circumstances. The principle of equivalence, in generalterms, is concerned with the obligation of Member States to ensure that the law of theEuropean Union is applied and enforced by Member States in a manner equivalent to thedomestic law of those states. It does not seem to me to be engaged at all in theseproceedings. There is no question of not applying either the Directive or the FrameworkDecision in any manner that is less effective than domestic law. The fact that a personarrested on foot of a European Arrest Warrant is not entitled to receive the sameinformation that he or she is entitled to receive if arrested on foot of a national arrestwarrant in respect of the same matters is in no way incongruous. The European ArrestWarrant is the mechanism by which persons are surrendered in order to face charges (or,as the case may be, to serve sentences) that are the subject of a national arrest warrant.Page 17 ⇓It is entirely logical that it is only upon the surrender of the person concerned to facethose charges that he or she will then be entitled to receive the information required bythe Directive. If these rights were to be engaged at the time that a person is arrestedpursuant to a European Arrest Warrant, it would, as I said above, frustrate the time limitswhich are a key feature of the Framework Decision.52. For all of these reasons, I consider that the points of objection that have been raised onthe basis of the Directive or the reference made by the Bulgarian court to the CJEU, the2013 Directive and the recent decisions of the CJEU must be rejected.53. I turn now to address the objections to surrender advanced on behalf of the respondentsas regards the entitlement of a trial court in Northern Ireland to draw inferences pursuantto the 1988 Order. The first of these objections arises out of the possible application ofArticle 3 of the 1988 Order, particulars of which are set out above. It is first necessary toconsider the opinion of Mr. Devine, counsel retained for Mr. Farrell, but relied upon alsoby Mr. Maguire in relation to this objection. This opinion is expressed over the course oftwo affidavits, the second being in response to the additional information received fromthe IJA. As regards Article 3 of the 1988 Order, the most relevant parts of Mr. Devine’sopinion are set out in the passages quoted from the affidavits of Mr. Devine at para.s 40,42 and 43 above. Para.s 42 and 43 set forth passages from Mr. Devine’s second affidavit.Para. 40 quotes from a passage of Mr. Devine’s first affidavit which was sent to the IJAwith the request for additional information. In its response of 10th January, 2020, to thatrequest, the IJA stated as regards this issue:-“In the circumstances of this case, where the Garda interviews have beenconducted without the caution under Article 3 being administered, the prosecutionwould not ask the court to draw inferences pursuant to Article 3 of the 1988 Orderand it is not considered an adverse inference could be drawn by the trial court of itsown volition.”54. The IJA then addressed whether or not adverse inferences might be drawn under Article 4of the 1988 Order by reason of the failure on the part of the respondents to answerquestions at interview:-“It is open to a court to draw an adverse inference under Article 4 of the 1988Order if either accused does not give evidence on his own behalf at trial. However,this is an entirely separate matter to their decision not to answer questions duringGarda interview. Their position adopted at interview is not relevant to the inferencethat can be drawn under Article 4…”55. Mr. Devine addresses the additional information provided by the IJA in his secondaffidavit. He addresses the matter at paras. 12 and following as follows:-“12. I say that the trial judge would be likely to be made aware that the accused wasarrested and detained for two days. Furthermore, I say and believe that, even ifthe Crown did not seek to adduce the fact that Mr. Farrell was interviewed, thePage 18 ⇓court could ask whether he was interviewed. In those circumstances, it would notbe open to the parties to mislead the court and so the likely and natural outworkingof this would be some judicial questioning in terms of the product of thoseinterviews.13. I say and believe that a court in this jurisdiction would be naturally interested in theaccused’s responses to police questioning and would be accustomed to an interviewbeing a key part of the investigation. This would be the case even in the context ofa ‘no comment’ interview.14. I say that the explanations from the parties about the fact that the interviews tookplace in Milford Garda Station and that, for example, no reliance is placed uponthose interviews as the ‘incorrect’ warning was given (i.e. a warning which wouldnot trigger the use of Article 3) could or would probably lead to judicial questionsconcerning the wording of the warning that was given.15. I say that the precise impact of this is difficult to quantify but I believe that anyimpact could only be detrimental to an accused even in the absence of a statutoryadverse inference under Article 3. I say further that this is especially so within thecontext of trial proceedings in Northern Ireland, where practitioners and courts areconditioned to the fact that silence during an interview can have very significantand harmful effects upon an accused’s defence at trial, due to the existence of the1988 Order for such a long time. I say that any trial court in Northern Irelandwould expect the defence to be keen to adduce an exculpatory account, if givenduring interview, and so the absence of such an account would inevitably lead to apresumption that the accused remained silent. In my view this could only accrue tothe detriment of the accused.16. I say and believe that there is a prohibition on references to such interviews underthe law and Constitution of the Republic of Ireland, other than by way of formulasuch as, ‘the accused was interviewed but nothing of probative value emerged’.17. I say that UK response dated 10th January, 2020, composed with the kindassistance of the PPSNI, is couched in suitably and appropriately qualified termsthat is, it states that ‘it is considered that’ the trial court could not of its ownmotion, take silence in the Garda station into account in deciding the nature of theadverse inference from silence in the trial. I would tend to agree with thisproposition, subject to the discussion above in terms of the fact that the existenceof these interviews will inevitably be a significant degree of focus upon Mr. Farrell’sarrest and detention for a period of time which was consistent with him beinginterviewed by police. Under normal circumstances these interviews would, at thevery least be referred to.”56. The provisions of the 1988 Order are both detailed and clear. Article 3(1)(A) refers to anaccused being questioned, under caution by a constable. It is clear that neither of therespondents was so questioned. They were questioned in this jurisdiction, by the Gardaí,Page 19 ⇓following a caution that is significantly different in its terms to that required for thepurposes of Article 3 of the 1988 Order.57. The argument that is being advanced on behalf of the respondents is to the effect that,while it is not open to the trial court to draw inferences under Article 3 of the 1988 Order,it might nonetheless draw adverse inferences from the silence of the respondents duringquestioning by Gardaí when looking at “all of the circumstances”. Mr. Devine’s opiniondoes not appear to me to be based so much on an interpretation of Articles 3 and 4 of the1988 Order, as on his experience as a practicing barrister in criminal trials in NorthernIreland. This has led him to conclude that notwithstanding the clear and expressprovisions of Articles 3 and 4 of the 1988 Order, and the further information provided bythe IJA in its letter of 10th January, 2020, a court might well draw adverse inferencesfrom the silence of the respondents at Garda questioning, simply because the courts areused to drawing such inferences where accused persons are questioned, following theappropriate caution, in accordance with the provisions of the 1988 Order.58. This opinion places very little faith in the courts of the issuing state to distinguish betweentwo very different sets of circumstances. It follows that if this Court were to accept Mr.Devine’s opinion on the issue, it would be failing to accord to the authorities in NorthernIreland, and in particular to the judiciary in that jurisdiction, the trust and confidencewhich this Court is obliged to accord to those institutions pursuant to the express terms ofthe Framework Decision, and s. 4A of the Act of 2003, which provides “It shall bepresumed that an issuing state will comply with the requirements of the FrameworkDecision, unless the contrary is shown.” In my opinion, it is unthinkable that adverseinferences can be drawn from the silence of the respondents in Garda custody at a trial inNorthern Ireland and I am obliged to have trust and confidence in the judiciary ofNorthern Ireland that no such inferences will be drawn, as indicated in the letter receivedfrom the IJA dated 10th January, 2020.59. It is further submitted on behalf of the respondents that this application should be refusedbecause they were not warned, while being questioned in this jurisdiction, that they wouldnot have an absolute right to silence at trial in Northern Ireland, and that adverseinferences might be drawn (at trial in Northern Ireland) from their failure to answerquestions while in Garda custody. It is submitted that, in failing to so warn therespondents, there has been a violation of the constitutional rights of the respondentssuch that their surrender to Northern Ireland is prohibited . Reliance is placed upon thedecision of the Supreme Court in Larkin v. O’Dea [1995] 2 IR 485.60. The respondents further rely on the decision of the Court of Criminal Appeal in the matterof The People (DPP) v. Coddington [2001] 5 JIC 3101, in which the court held that thedirection given by the trial judge was inconsistent with the duty of a trial judge to instructthe jury that the onus to establish its case, including inferences, beyond reasonabledoubt, remains at all times with the prosecution. The court held:-“While the trial judge may remind the jury of the fact that the accused had, as ishis right, not given evidence in the trial they must be expressly instructed not toPage 20 ⇓draw any inference from the exercise of that right. In this case, the learned trialjudge not only recalled that the accused had not given evidence but did so in thecontext of the failure of the defence to provide evidence of an innocent explanationfor the presence of the money and without any direction that no inference was tobe drawn from his failure to give evidence.”61. It is submitted that there has been an egregious violation of the respondents’constitutional rights in failing to inform them in this jurisdiction of the difference betweentheir rights to silence at trial in this jurisdiction and that which prevails in the requestingstate. It is also submitted that the fact that the respondents will be denied theirconstitutional right to silence at trial in Northern Ireland is apparent from the judgment ofthe Crown Courts sitting in Belfast in the matter of R v. McVeigh [2019] NICC 8. Thoseproceedings involved the trial of Mr. Seán McVeigh, who was tried and found guilty of theoffences the subject matter of the EAWs.62. It is submitted by the respondents that the right to be presumed innocent includes theright to silence at trial and is not confined to the boundaries of the State. Article 4 of the1988 Order will result, therefore, in an egregious breach of the constitutional rights of therespondents, such as that referred to by Murray C.J. in Minister for Justice and Equality vBrennan [2007] 3 IR 732 and O’Donnell J. in Minister for Justice v. Balmer [2016] IESC 25,referred to below. Moreover, there are substantial grounds for believing that there isa real risk that the constitutional rights of the respondents will be violated at trial inNorthern Ireland, such as to meet the test for refusal of an application for surrender, asidentified in Minister for Justice, Equality & Law Reform v. Rettinger [2010] IESC 45, andagain more recently, in Minister for Justice and Equality v. Celmar [2019] IESCDET 45.63. I will first address the argument based on the warning given in custody. It is not indispute that the respondents received the appropriate caution from Gardaí prior tocommencement of interviews in Milford and Letterkenny, and that they exercised theirright to silence at interview. There is no obligation on Gardaí to provide separate cautionsof the kind to which they are entitled in the issuing state (upon their surrender), whetherthe United Kingdom or any other state, or as may be appropriate in that state. In fact theGardaí were not even to know that the respondents would eventually be sought for trial inNorthern Ireland, although they may well have surmised as much. Moreover, this is anentirely novel proposition, and if accepted would be quite unworkable. As counsel for theapplicant submitted, it would place the Gardaí in a situation where two parallel interviewsmight be required, depending on the response of those being questioned to the differentcautions. The reliance placed by the respondents in Larkin v O’Dea is misplaced. In thatcase the surrender of the respondents was refused because the court found that evidencetaken from the applicant in that case which was to be used at trial in Northern Irelandwas found to have been obtained, in this jurisdiction, in violation of his constitutionalrights. It follows therefore that he could not be sent to face a trial in which that evidencewould be used against him. While it is also the case that materials obtained by the Gardaífollowing upon the arrest of the respondents has been sent to Northern Ireland and isPage 21 ⇓likely to be used against them at their trial, no argument has been advanced that thisevidence was improperly obtained. For these reasons, this argument must be rejected.64. I turn next to address the argument that, at the conclusion of their trials, inferencesadverse to the interests of the respondents may be drawn by the court if, having beenwarned by the court in the terms required by Article 4 of the 1988 Order, the respondentseither do not give evidence or, that if they do so, they fail to answer any question withoutgood reason. It is contended on behalf of the respondents that such inferences amount toan egregious breach of their constitutional rights in this jurisdiction, such that theirsurrender should be refused.65. The right to silence under Irish law and its status as a constitutionally protected right iswell established and recognised in decisions relied upon by the respondents such asHeaney v. Ireland [1994] 3 IR 593 and The People (Director of Public Prosecutions) v.Finnerty [1999] 4 IR 364, in which case, Keane J. (as he then was) stated:-“It follows that the right of suspects in custody to remain silent, recognised by thecommon law, is also a constitutional right and the provisions of the Act of 1984,must be construed accordingly. Absent any express statutory provisions entitling acourt or jury to draw inferences from such silence, the conclusion follows inevitablythat the right is left unaffected by the Act of 1984, save in cases coming within ss.18 and 19, and must be upheld by the courts.”66. It is clear from this decision, and in Heaney, that the right to silence, while enjoyingconstitutional protection, is not unqualified and may be abridged by statute. Indeed,counsel for the respondents acknowledge that the right is not unqualified, but submit thatif it is to be abridged in any way, the person in detention should be warned of any powerthat exists allowing adverse inferences to be drawn from a failure to answer questions orgive evidence at trial. In this case, it is submitted that the abridgment of the right tosilence (at trial) under the 1988 Order, coupled with the fact that the respondents werenot informed whilst in custody in this jurisdiction that they would not have a right tosilence at trial, amounts to an egregious breach of the constitutional rights of therespondents.67. Throughout the European Union, Member States operate different procedures at trial. Thefact that procedures will vary from one Member State to another is no bar to surrender. Ifit were otherwise, the entire system of surrender provided for in the Framework Decision,as implemented in the Act of 2003 in this jurisdiction, would collapse. This was recognisedin Minister for Justice v. Brennan [2007] 3 IR 732. In those proceedings, which wereconcerned with an argument that provisions in United Kingdom law imposing a mandatoryminimum sentence, which did not take into account the particular circumstances of therespondent in those proceedings, violated his rights under the Constitution. At paras. 35-40 of his judgment, Murray C.J. stated as follows:-“[35] There is no doubt that the operation of the process for surrender as envisaged bythe Act of 2003, as amended, is subject to scrutiny as to whether in any particularPage 22 ⇓case it conforms with constitutional norms and in particular due process so that, forexample, the respondent in such an application has an opportunity to be duly heardin the proceedings.[36] However the argument of the respondent goes much further. He has contendedthat the sentencing provisions of the issuing State, in this case the United Kingdom,did not conform to the principles of Irish law, as constitutionally guaranteed,governing the sentencing of persons to imprisonment on conviction before ourCourts for a criminal offence.[37] The effect of such an argument is that an order for surrender under the Act of2003, and indeed any order for extradition, ought to be refused if the manner inwhich a trial in the requesting state including the manner in which a penal sanctionis imposed, does not conform to the exigencies of our Constitution as if such a trialor sentence were to take place in this country. That can hardly have been theintention of the Oireachtas when it adopted s. 37(1) of the Act of 2003 since itwould inevitably have the effect of ensuring that most requests for surrender orextradition would have to be refused. And indeed if that were the intent of theFramework Decision, which the Act of 2003 implements, and other countriesapplied such a test from their own perspective, few, if any, would extradite to thiscountry.[38] Indeed it may be said that generally extradition has always been subject to aproviso that an order for extradition, as with any order, should not be made if itwould constitute a contravention of a provision of the Constitution. I am not awareof any authority for the principle that the extradition or surrender of a person to aforeign country would contravene the Constitution simply because their legalsystem and system of trial differed from ours as envisaged by the Constitution.[39] The manner, procedure and mechanisms according to which fundamental rights areprotected in different countries will vary according to national laws andconstitutional traditions. The checks and balances in national systems may varyeven though they may have the same objective, such as ensuring a fair trial. Theremay be few, if any, legal systems which would wholly comply with the preciseexigencies of our Constitution with regard to these matters. Not all for example willprovide a right to trial by jury in exactly the same circumstances as ourConstitution does in respect of a trial for a non-minor offence. Rules of evidencemay differ. The fact that a person would be tried before a judge and jury in thiscountry for a particular offence could not, in my view, be a basis for refusing tomake an order for surrender solely on the grounds that in the requesting State heor she would not be tried before a jury. The exceptions which we have to the juryrequirement, as in trials before the Special Criminal Court, acknowledges that a fairtrial can take place without a jury even though it is constitutionally guaranteed formost trials in this country.Page 23 ⇓[40] That is not by any means to say that a Court, in considering an application forsurrender, has no jurisdiction to consider the circumstances where it is establishedthat surrender would lead to a denial of fundamental or human rights. There maywell be egregious circumstances, such as a clearly established and fundamentaldefect in the system of justice of a requesting State where a refusal of anapplication for surrender may be necessary to protect such rights…”68. Similarly, in Minister for Justice v. Balmer [2016] IESC 25, O’Donnell J., having referredto a number of cases, including Minister for Justice v. Brennan, said, at para. 31:-“[31] These cases are all examples of circumstances where objections under s. 37 havefailed. In each case, even assuming that the impugned foreign provision wouldhave been found to be incompatible with the Irish Constitution if enacted in Irishlaw, the court in each case nevertheless found that the surrender of such a personwas not prevented by s. 37, or, indeed by the Constitution of its own force. Theundesirability and inappropriateness of scrutinising foreign laws by reference toIrish constitutional standards is itself consistent with the approach taken in ThePeople (DPP) v. Robert Campbell [1983] 2 Ferwen 131 where, notwithstanding thefact that the trial occurred in the jurisdiction of the courts, the court did not applyIrish constitutional standards to the detention of suspects in Northern Ireland. Eventhough these cases are individual instances, they form a broadly consistent line ofauthority. They illustrate an approach which is, moreover, compatible with theobservations of Murray C.J. in Minister for Justice v. Brennan [2007] IESC 21,[2007] 3 IR 732 and, indeed, both the observations made and the decision inNottinghamshire County Council v. KB [2011] IESC 48, [2013] 4 IR 662.”69. The applicant relies upon the decisions above and also the decision of the Supreme Courtin the case of Minister for Justice v. Buckley [2015] 3 IR 619. In that case, the surrenderof the respondent was sought to face conspiracy charges in the United Kingdom. Therespondent contended that certain provisions of the Police and Criminal Evidence Act,1984 in the United Kingdom, which permitted the introduction into evidence of materialsthat would prove that other persons had been convicted of certain offences, gave rise to arisk of a violation of his rights guaranteed under Article 38 of the Constitution. In apassage relied upon by the applicant in these proceedings, O’Donnell J. held as follows, atpara. 28:-“[28] I would, therefore, summarise matters this way. First, the case advanced by therespondent is hypothetical, in that its actual or likely impact on the respondent isunclear, and certainly not capable of being characterised as a defect in the systemof justice of the requesting state. Second, even if, hypothetically, ss. 74 and 75 ofthe Act of 1984 are not in accordance with the values found in Article 38, it isimmaterial, if the respondent cannot show that what would be at issue would be, oris likely to be, an “egregious” departure amounting to a denial of fundamental orhuman rights (per Murray C.J. in Brennan [2007] IESC 21, [2007] 3 IR 732 at para.40, p. 744). There would have to be significantly more: a real and substantivePage 24 ⇓defect in the system of justice, where fundamental rights were likely to be placed atrisk, or actually denied. As Murray C.J. pointed out in Brennan, rules of evidence“may differ” between states, and that alone does not at all lead to the necessaryconclusion that there is a breach of fundamental rights in the requesting state.Finally, and again as held in Minister for Justice v. Brennan [2007] IESC 21 andNottinghamshire County Council v. KB [2011] IESC 48, [2013] 4 IR 662, the reachof Article 38, save in exceptional circumstances, goes no further than theboundaries of the State. There is nothing in Article 38 to suggest anything beyondthat. What is in question, then, is the lawfulness of the surrender of the respondentin this jurisdiction. I would, therefore, answer the first question in the negative.”70. It follows that it is necessary to consider whether or not Articles 3 and 4 of the 1988Order are likely to give rise to an egregious departure amounting to a denial of therespondents’ fundamental or human rights. In considering this, it is useful at thisjuncture to refer to the decision of the European Court of Human Rights (the “ECtHR”) inthe case of John Murray v. the United Kingdom (30 EHRR CD 57), a decision of that courtof 8th February, 1996. In those proceedings, the ECtHR was required to consider, interalia, whether or not Articles 3 and 4 of the 1988 Order violated Article 6 of the EuropeanConvention on Human Rights (the “Convention”). At paras. 45 and 46 of its decision, thecourt stated:-“45. Although not specifically mentioned in Article 6 (art. 6) of the Convention, therecan be no doubt that the right to remain silent under police questioning and theprivilege against self-incrimination are generally recognised international standardswhich lie at the heart of the notion of a fair procedure under Article 6 (art. 6) (seethe Funke judgment cited above, loc. cit.). By providing the accused withprotection against improper compulsion by the authorities these immunitiescontribute to avoiding miscarriages of justice and to securing the aims of Article 6(art. 6).46. The Court does not consider that it is called upon to give an abstract analysis of thescope of these immunities and, in particular, of what constitutes in this context‘improper compulsion’. What is at stake in the present case is whether theseimmunities are absolute in the sense that the exercise by an accused of the right tosilence cannot under any circumstances be used against him at trial or,alternatively, whether informing him in advance that, under certain conditions, hissilence may be so used, is always to be regarded as ‘improper compulsion’.47. On the one hand, it is self-evident that it is incompatible with the immunities underconsideration to base a conviction solely or mainly on the accused’s silence or on arefusal to answer questions or to give evidence himself. On the other hand, theCourt deems it equally obvious that these immunities cannot and should notprevent that the accused’s silence, in situations which clearly call for an explanationfrom him, be taken into account in assessing the persuasiveness of the evidenceadduced by the prosecution.Page 25 ⇓Wherever the line between these two extremes is to be drawn, it follows from thisunderstanding of ‘the right to silence’ that the question whether the right isabsolute must be answered in the negative.”71. The court then went on to consider the specific proceedings and noted that while theproceedings were without a jury, the trier of fact was an experienced judge. It furthernoted that the drawing of inferences under the 1988 Order is subject to an importantseries of safeguards designed to respect the rights of the defence and to limit the extentto which reliance can be placed on inferences. It noted at para. 51:-“In the first place, before inferences can be drawn under Articles 4 and 6 of theOrder appropriate warnings must have been given to the accused as to the legaleffects of maintaining silence. Moreover, as indicated by the judgment of theHouse of Lords in R. v. Kevin Sean Murray the prosecutor must first establish aprima facie case against the accused, i.e. a case consisting of direct evidencewhich, if believed and combined with legitimate inferences based upon it, could leada properly directed jury to be satisfied beyond reasonable doubt that each of theessential elements of the offence is proved (see paragraph 30 above).The question in each particular case is whether the evidence adduced by theprosecution is sufficiently strong to require an answer. The national court cannotconclude that the accused is guilty merely because he chooses to remain silent. Itis only if the evidence against the accused ‘calls’ for an explanation which theaccused ought to be in a position to give that a failure to give any explanation ‘mayas a matter of common sense allow the drawing of an inference that there is noexplanation and that the accused is guilty’. Conversely if the case presented by theprosecution had so little evidential value that it called for no answer, a failure toprovide one could not justify an inference of guilt (ibid.). In sum, it is onlycommon-sense inferences which the judge considers proper, in the light of theevidence against the accused, that can be drawn under the Order.In addition, the trial judge has a discretion whether, on the facts of the particularcase, an inference should be drawn. As indicated by the Court of Appeal in thepresent case, if a judge accepted that an accused did not understand the warninggiven or if he had doubts about it, ‘we are confident that he would not activateArticle 6 against him’… Furthermore, in Northern Ireland, where trial judges sitwithout a jury, the judge must explain the reasons for the decision to drawinferences and the weight attached to them. The exercise of discretion in thisregard is subject to review by the appellate courts.”72. The court then went to analyse the application of the 1988 Order to the specificcircumstances of the case, and having done so it did “not consider that the criminalproceedings were unfair or that there had been an infringement of the presumption ofinnocence”. Accordingly, there was no violation of Article 6 of the Convention.Page 26 ⇓73. However, the ECtHR also concluded that there had been a violation of the applicant’srights under Article 6 of the Convention by reason of the fact that the applicant did nothave access to his solicitor from the outset of his interview by the police, which right wasof particular importance given Article 3 of the 1988 Order, and the implications for theapplicant if he chose to remain silent during questioning .On the basis of this finding, therespondents argue that, although the respondents in these proceedings at all times hadaccess to a solicitor, that was in this jurisdiction, and they therefore did not receive theappropriate advices as regards the 1988 Order. However, as I have already determinedabove, there was no obligation on the Gardaí to provide the respondents with any cautionother than the caution that they are obliged to provide in this jurisdiction. Furthermore,as I have also determined above, on the basis of the evidence before me, and inparticular the response to further information received from the IJA, and also havingregard to my obligation to have trust and confidence that the fundamental rights of therespondents will be respected upon their surrender, this argument does not advance therespondents’ case.74. Somewhat unusually, in this case, it is possible to see how the court in Northern Irelanddealt with a person charged with the same offences (arising out of the same alleged acts)with which it is intended to charge the respondents, and how the court applied Articles 3and 4 of the 1988 Order in those proceedings. In his written decision in R v. McVeigh[2019] NICC 8, the judge, HH Fowler QC, reminded himself of the principles to be appliedin deciding whether or not the prosecution proved its case, particularly having regard tothe fact that he was acting as a judge alone, without a jury. He reminded himself that theburden of proof lies on the crown; that the prosecution must prove the defendant guiltybeyond a reasonable doubt; that the court must decide the case only on the evidenceestablished before it. He noted that the prosecution case depended on circumstantialevidence, and the principles applicable in considering circumstantial evidence. Hereminded himself that he must consider all of the evidence and guard against distortingthe facts or the significance of the facts to fit a certain proposition and that he must besatisfied that no explanation other than guilt is reasonably compatible with thecircumstances.75. He then went on to conduct a detailed analysis of all of the facts and the forensicevidence. At paras. 109 and 110 of his judgment, under the heading “Defendant’s failureto give evidence”, he stated:-“[109] At the conclusion of the Crown case the court addressed counsel for theDefendant in the usual terms stating that if the Defendant chose not to giveevidence the court may draw such inferences as appear proper from their failure todo so. I enquired if the Defendant intended to give evidence and if not had he beenadvised about the inferences which might be drawn if he chose not to do so. MrPownall QC stated that his client did not intend to give evidence and stated that hisclient had been advised about the inferences which might be drawn from his failureto do so.Page 27 ⇓[110] The Defendant is entitled not to give evidence, to remain silent and to make theprosecution prove his guilt beyond reasonable doubt. Two matters arise for him notgiving evidence. The first is that the case is tried according to the evidence. TheDefendant has given no evidence at his trial to undermine, contradict or explain theevidence given by the prosecution witnesses. Secondly, the law is that the courtmay draw such inferences as appear proper from the failure on the part of theDefendant to give evidence. The court must decide whether it is proper to hold theDefendant’s failure to give evidence against him in deciding whether he is guilty.The court may only draw an adverse inference against the Defendant for failing togo into the witness box to give an explanation for, or an answer to, the caseagainst him if the court considers that it is a fair and proper conclusion for the courtto reach. The court must first be satisfied that the prosecution case is sufficientlystrong to clearly call for an answer by the Defendant. Secondly it must be satisfiedthat the only sensible explanation for his silence is that he has no answer or nonethat would bear examination. I remind myself that the courts should not find theDefendant guilty only or mainly because he did not give evidence. But the courtmay take into account as some additional support for the prosecution case the factthat the Defendant has not given evidence when deciding whether the Defendant’scase is true or not.”The judge then proceeded to give his conclusions by reference to the evidence and drewinferences against the defendant on the basis of the evidence, and the fact that thedefendant had chosen to say nothing in relation to the case against him which the judgeheld “cries out for an explanation”.76. In addition to relying upon the affidavit evidence of Mr. Devine, the respondents rely uponthe case of R v. McVeigh in support of their argument that, if the respondents exercisetheir right to silence at trial in Northern Ireland, this is likely to result in adverseinferences being drawn by the trial judge, such as occurred in the case of Mr. McVeigh.While it is acknowledged that in this jurisdiction there is legislation that permits thedrawing of adverse inferences in the context of the failure of an accused person to answercertain questions under questioning from Gardaí at the investigation stage, there is nolegislation that permits the drawing of inferences from the failure of an accused to giveevidence at his own trial. That, it is submitted, goes beyond the bounds of what ispermissible under the Constitution, and taken together with the fact that the respondentsreceived no warning, when being questioned by the Gardaí, that such inferences are likelyto be drawn if the respondents are placed on trial in Northern Ireland, would constitute anegregious violation of the respondents’ constitutional rights.77. In considering whether or not Articles 3 and 4 of the 1988 Order will give rise to anegregious violation of the constitutional rights of the respondents, it is useful to refer tothe observations of the Supreme Court in the case of Rock v. Ireland [1997] 3 IR 484 inits consideration of the constitutionality of the legislation impugned in those proceedings.At page 501 of the judgement, Hamilton C.J. stated:-Page 28 ⇓“It is the opinion of this Court that, in enacting ss. 18 and 19 of the Act of 1984,the legislature was seeking to balance the individual’s right to avoid self-incrimination with the right and duty of the State to defend and protect the life,person and property of all its citizens. In this situation, the function of the Court isnot to decide whether a perfect balance has been achieved, but merely to decidewhether, in restricting individual constitutional rights, the legislature have actedwithin the range of what is permissible. In this instance, this Court finds they havedone so, and must accordingly uphold the constitutional validity of the impugnedstatutory provisions. While it is true that ss. 18 and 19 could lead to an accusedbeing convicted of a serious offence in circumstances where he or she mightotherwise have been acquitted, there are two important, limiting factors at work.Firstly, an inference cannot form the basis for a conviction in the absence of otherevidence. As the learned trial judge pointed out:—“…there is no doubt a strengthening of the State’s case but in no sense is itfinal and in neither event is the accused required to exculpate himself.”Secondly, only such inferences “as appear proper” can be drawn: that is to say, aninference adverse to the accused can only be drawn where the court deems itproper to do so. If it does not, then neither judge nor jury will be permitted to drawsuch inference.”78. On the basis of these safeguards, the Supreme Court in Rock considered the impugnedprovisions to be constitutional. Substantially the same safeguards are to be found inArticle 4 of the 1988 Order. Although it is not expressly stated in Article 4 that, beforeArticle 4 is triggered the prosecution must have established that the defendant has a caseto answer, on the respondents’ own case this is a requirement. These safeguards wererelied upon by the ECtHR in its conclusion that Article 4 of the 1988 Order did not violateArticle 6 of the Convention. If those safeguards were sufficient for the Supreme Court toconclude that the impugned provisions in Rock did not give rise to a violation of theplaintiff’s constitutional rights in that case, then it is difficult to see how Article 4 of the1988 Order can be said to give rise to an egregious violation of the respondents’constitutional rights.79. Drawing all of the above together, the following is established:-1) The right to silence in this jurisdiction is recognised under the Constitution and isaccorded protection accordingly. It is not, however, unqualified, and may beabridged in a manner that is proportionate to the objectives.2) While there are certain statutory provisions in this jurisdiction that qualify orabridge the right to silence, there is no equivalent to Articles 3and 4 of the 1988Order. To that extent, it is possible that the respondents, if they exercise theirright to silence at trial in Northern Ireland, may suffer a prejudice that they wouldnot suffer if they were put on trial in this jurisdiction.Page 29 ⇓3) That however, does not necessarily constitute a violation of their constitutionalrights. The protection afforded by Article 38 of the Constitution does not extendbeyond the boundaries of the State, unless the matters complained of would giverise to an egregious violation of the constitutional right asserted.4) Articles 3 and 4 of the 1988 Order do not violate Article 6 of the EuropeanConvention on Human Rights. While the rights protected by the Convention andthe Constitution are not identical, in this fundamental respect they are unlikely tobe very much different.5) There is no evidence that the manner in which Articles 3 and 4 are invoked inNorthern Ireland is such that would give rise to any cause for concern that theconstitutional rights of the respondents are likely to be violated egregiously, or incontravention of the principles enunciated in Rock. On the contrary, the applicationof Article 4 of the 1988 Order in R v. McVeigh demonstrates the application of thesafeguards necessary to avoid such an outcome.6) There is a statutory presumption that an issuing state will comply with therequirements of the Framework Decision which, at Article 1.3, requires MemberStates to respect the fundamental rights and principles enshrined in Article 6 of theTreaty on European Union. Moreover, there is a duty on this Court, pursuant to theterms of the Framework Decision to have trust and confidence in the issuingMember State that the respondents’ fundamental rights will be respected.7) It follows from all of this that the arguments of the respondents that their surrenderto Northern Ireland will give rise to an egregious violation of their constitutionalrights must be rejected. Since all other objections to their surrender have also beenrejected, the Court must order the surrender of the respondents pursuant to s. 16of the Act of 2003. For the avoidance of any doubt, I should add that I have beenfully satisfied that there has been full compliance with the Act of 2003 as regardsthe form and content of the EAWs.
Result: Order made for the surrender of the respondents pursuant to s. 16 of the European Arrest Warrant Act 2003.
The Minister for Justice and Equality v Leopold
[2020] IEHC 84 (30 January 2020)
Page 1 ⇓THE HIGH COURTIN THE MATTER OF THE[2020] IEHC 84EUROPEAN ARREST WARRANT ACTS 2003 AND 2012[2017/55/EXT]BETWEENTHE MINISTER FOR JUSTICE AND EQUALITYAPPLICANTANDMACIEJ LEOPOLDRESPONDENTJUDGMENT of the Court delivered (ex tempore) on the 30th day of January, 2020 byMs. Justice Donnelly1. The European arrest warrant before the Court issued on 13th February, 2017 by anissuing judicial authority (hereinafter, “IJA”) in Poland. The issuing authority seeks thesurrender of the respondent to prosecute him there for six offences allegedly committedbetween 2002 and 2006.2. There is a very long history in relation to this application. Over the past 10 years, Polandhas sought the surrender of this respondent in relation to different matters on sevenoccasions. Some of these relate to other offences than the present offences and I willrefer in more detail to the requests and various warrants below.3. The issue that I am primarily dealing with in this judgment is the respondent’s argumentthat the surrender is prohibited on the grounds of an issue estoppel, a res judicata or anyform of abuse of process based upon the exceptional circumstances of this case. It isimportant therefore to deal with the chronology of what has occurred since EuropeanArrest Warrants (hereinafter, “EAW’s”) were issued for this respondent in Poland.Chronology4. EAW 1 issued on the 11th May, 2010 and was endorsed on the 7th July, 2010. EAW 2was issued on the 19th July, 2010 and was endorsed on the 22nd September, 2010. EAW1 contained a single offence. EAW 2 referred to twelve offences. Only six of thoseoffences are contained in the present offence which is called EAW 7.5. The respondent was arrested on the 27th June, 2011 on foot of the two EAW’s: EAW 1and EAW 2. On the 7th December, 2011, the High Court ordered his surrender unders.16 in respect of the single offence on the 30th November, 2011. That Order forsurrender concerned the two warrants [2010 71 EXT] (EAW 1) and certain of the offencesoutlined in the second warrant (EAW 2) [2010 352 EXT]. It is accepted that Edwards J.in the High Court refused to surrender the respondent on EAW 2 in respect of five of thesix offences, the subject matter of the present application. Edwards J. ordered hissurrender in respect of the other offences in EAW 2. What is relevant to the presentproceedings is that his surrender was ordered on offence E (V), namely the offenceallegedly committed on 24th March, 2005 in Poznan. This is the same offence as offenceNo. V in the present warrant (EAW 7), contained at part E (C) therein.Page 2 ⇓6. On 28th December, 2011, the High Court ordered the respondent’s release pursuant toArticle 40.4 of the Constitution. This appears to have been in circumstances where hissurrender was not effected by Poland within the time allowed, and I will return to thislater in the judgment. From the information before this Court it appears there has neverbeen a clear indication from Poland as to why they did not effect surrender within thattime period.7. Since the release under Article 40 there have been a number of relevant events. Thesehave been set out in a very comprehensive chronology prepared by the Chief StateSolicitor’s Office. I accept that chronology and it is incorporated into this judgment.8. I will point to a number of brief matters. EAW 3 and 4 were issued in Jan/Feb 2012 andwere endorsed in May/June 2012 by the High Court. EAW 3 contains the same sixoffences for which surrender was sought on EAW 1. A fifth EAW issued on the 7thJanuary, 2013 and was endorsed on the 19th March, 2013. The respondent was arrestedon the 23rd April, 2013 in respect of this EAW. EAW 5 also contained the same sixoffences as EAW 1 and EAW 7.9. Over a number of months, these matters were adjourned. It appeared that the Polishauthorities were seeking to replace EAW 3. On the 8th November, 2013 the Ministerapplied to withdraw EAW 3 on the basis of additional information provided by the Polishauthorities.10. The respondent was afforded opportunities by the High Court to engage with the IJA’s. InPoland, he has engaged with the prosecutorial and judicial authorities in attempting todeal with offences underlying the warrants by way of applications to the Polishauthorities. Over the course of his engagement, it was made known to this Court that hehas been successful in many of the offences on the various warrants. For example, hereached agreement in respect of a large number of offences to be interviewed in thePolish Embassy in respect of same.11. On the 3rd December, 2012, EAW 4 was withdrawn at the request of the Ministerfollowing further information.12. EAW 5 was adjourned repeatedly at the request of the respondent initially because of hisapplication to the Polish Court, but later because of his desire to await the decision of theSupreme Court in the case of Minister for Justice and Equality v Lipinski [2017] IESC 26(which was referred to the Courts of Justice of the European Union (hereinafter, “CJEU”)),but was not decided by them in light of the intervening decision in the case of SametArdic (Case C-571/17), ECLI:EU:C:2017:1026.13. On the 30th May, 2016, the High Court endorsed EAW 6 dated the 8th April, 2016. EAW6 contained the same six offences as EAW 1 and EAW 7. There was an application towithdraw EAW 5 on the 13th June, 2016 and that was granted. The respondent wasarrested on EAW 6 on the 8th April, 2016. EAW 6 was then adjourned pending thedetermination of the Lipinski case.Page 3 ⇓14. EAW 7 was endorsed on the 13th March, 2017 and on that date, EAW 6 was withdrawn.The respondent was arrested on the same date on EAW 7. The matters then proceededbefore this Court.15. It is noteworthy that the cover letter sending the EAW states that this is a partiallyamended EAW because the Circuit Court in Poznan had decided to call off the search forthe respondent in respect of matters A and B referred to in EAW 6. This was in responseto the successful application by the respondent to deal with those matters in anothermanner.16. The respondent sought time to deal with the outstanding matters on EAW 7 in Poland andin light of what had occurred, he was granted time. In relation to these offences thisparticular prosecutor would not agree to him being interviewed in the embassy in Dublin.The matter had a hearing date in March 2018 but the respondent sought to raise what Iwill term, a “Celmer” type argument about the situation in relation to judicialindependence in Poland. The Court acceded to that adjournment and the matter wasadjourned from time to time on that basis. It was only on the 28th January, 2020 thatthe matter was finally put in for hearing before me; the Celmer case having been finallydetermined by the Supreme Court. There being nothing advanced specifically with regardto this respondent’s situation, and the risk to him personally of an unfair trial, I amsatisfied that there is no reason by virtue of a fair trial reason as to why he cannot besurrendered to Poland, and indeed that has not been advanced in this particular case,apart from the earlier generalities.17. The position therefore is that EAW 7 is to my best calculation, the fifth EAW for which hissurrender has been sought in respect of these particular matters. It is also apparent that,subject to my further consideration of the initial decision of this Court to refuse surrender,that the reason why so many EAW’s have issued is to take into account the domesticproceedings in which the respondent has successfully challenged the underlying orders.This resulted in the necessity for the Polish judicial authorities to reissue EAW’s to takeinto account the changed requests for his surrender that were then being made. It is alsothe case that the respondent sought and was granted delays in the final determination ofhis cases on the basis of legal issues which required to be determined by the appellatecourts.18. The respondent seeks to argue that his surrender should be refused on the grounds thatdelay has led to an abuse of process and/or that to return him would be oppressive due tothat delay, and/or due to the multiplicity of warrants as well as his own circumstancesand also the fact that his surrender has previously been refused in relation to five out ofsix of these offences.19. Further, the respondent seeks to argue that the High Court is bound by the finding ofEdwards J. that the respondent could only be surrendered on one out of the six chargeswhich are currently before the Court.The LawPage 4 ⇓20. There is no disagreement between the parties that there is no prohibition or bar to asecond, or indeed subsequent EAW’s issuing in relation to the same proceedings. InMinister for Justice and Equality v. Koncis [2011] IESC 37, Denham C.J. stated: -“While there is no express provision in the European Arrest Warrant Act 2003 asamended, referred to as ‘the Act of 2003’, for a second warrant to ‘go again’, it isnot expressly excluded. I am of the opinion that as long as the procedures are inaccordance with the Act of 2003 and that fair procedures have been followed thatthere is no reason why a second warrant on the same offences could not be issued,it would depend on all the circumstances of the case.”21. The above dicta requires that the circumstances of every individual case must be thefocus of any examination for the Court. It is also of significance that the CJEU has, in adecision of the 25th July, 2018 in the case of A.Y. (Case C-268/17), ECLI:EU:C:2018:602,held that a judicial authority of an executing Member State is required to adopt a decisionon any EAW forwarded to it, even where a ruling has been made on a previous EAWconcerning the same person and the same acts and the second EAW was only issued onaccount of the indictment in the issuing Member State of the person concerned.22. I am therefore satisfied that I must make a decision on this EAW in accordance with thelaw pertaining to EAW’s. This does not mean that I have no regard to the legalrequirements as to how I must approach the task in hand but I must engage at least withthis EAW.23. The Minister and the respondent have relied on many of the same cases often quotingsimilar dicta. These cases are Bolger v. O’Toole [2008] 4 IR 780, Heywood v. AttorneyGeneral [2008] IESC 60, Minister for Justice and Equality v. Tobin [2012] 4 I.R. 147,Minister for Justice v. J.A.T. (No. 2) [2016] 2 I.L.R.M. 262.24. In my view, the case of Minister for Justice and Equality v. Bailey [2017] IEHC 482 alsohas relevance as does the decision of the Court of Appeal in Minister for Justice andEquality v. Downey [2019] IECA 182.25. In relation to the position as to res judicata, I do not understand the respondent to pressthis issue with any seriousness. It is necessary to note the following: it is not the lawthat the question as to surrender is a matter that is finally decided when a surrender isrefused. That is inherent in the decisions of Koncis, Bolger and Heywood cited above.While it may well be that some of the judgments refer to res judicata not applying wherethe issues are technical ones, I am not satisfied that this means that where there hasbeen a decision on the merits of a particular case that that issue cannot be questioned atall. Indeed, in light of the decision in A.Y., I am satisfied that an executing judicialauthority charged with making a decision on an EAW is bound to act judicially inconsidering the matter. It may be that the principle of legal certainty or stare decisis maycover a point at issue, but that is different to saying the precise principle of res judicataapplies.Page 5 ⇓26. In accordance with O’Donnell J. in J.A.T. (No. 2), I am satisfied that “when a freshwarrant is issued, its validity becomes a separate issue. It is not res judicata because theissue under the new warrant has not been decided.” In my view, that dicta, whichaccords with the decision in A.Y., must be taken as superseding any reference in AttorneyGeneral v. Gibson (Unreported, Supreme Court, Keane C.J., 10th June, 2004) to thepossibility of res judicata arising where there has been a final adjudication made withinthe jurisdiction. That latter case applied to extraditions rather than surrender under the2003 Act. I do note that Murray J. in Tobin expressly stated that the issue of res judicatadid not arise in Tobin as it had been conceded that it did not arise. I am satisfiedhowever, that res judicata does not apply to my consideration of this issue.27. In relation to the question of issue estoppel as distinct from abuse of process or resjudicata, the Supreme Court authority is not so definitive. Murray J. in Tobin stated atpara. 145 that “res judicata should not be confused with the subsidiary principle of issueestoppel which would apply in extradition cases.”28. Hunt J. in Bailey understandably had significant regard to this dicta. He considered thatno other case clearly denied the applicability of issue estoppel in surrender cases. Fromthe cases he cited, he was of the view that there was no reason to exempt extraditionlitigation from the rationale behind the issue of estoppel. He held that the fact thatextradition litigation takes the form of an inquiry rather than an adversarial contextmakes no difference to this conclusion. There is, according to Hunt J. at para.15:-“the same interest in finality and certainty in relation to the outcome of suchinquiries as there is in other cases, together with the same necessity to avoid theparties to such inquiries and the courts conducting same being vexed repeatedlywith issues previously and conclusively decided as between the same parties.”29. In Bailey, the decision in question had been a reasoned one of the Supreme Court. Ishould note at this stage that Hunt J. separately held that the doctrine of stare decisisprevented surrender as he was bound by the decision of the Supreme Court.30. In respect of the question of whether an issue estoppel arises in the present case, it’simportant to note that the earlier decision of Edwards J. was a reasoned decision of theHigh Court in respect of the issue of correspondence of offences. His judgment, althoughex tempore, had been given the following day after it appears, significant legal argumentwhich spanned over two days. The judge made the decision within jurisdiction and whilehe may or may not have been correct or incorrect in that decision, it was one whichaffected the parties. The Minister never appealed that decision. It should also be notedthat the decision was one made between the same parties i.e. the Minister and therespondent, and both parties had their opportunity to deal with this matter in terms of thefacts and the law. I should also note that it has not been opened to me that the law oncorrespondence of offences has changed in the intervening time, although even if it hadthat would have invoked a different argument based upon the reasoning of two of the fiveSupreme Court judges in Tobin. I should also say that the issue of whether offencescorrespond to offences in this jurisdiction are matters which require deep consideration ofPage 6 ⇓the ingredients of criminal offences in this jurisdiction when compared with the facts thatare set out on the warrant requesting surrender. A decision on correspondence goes tothe heart of the issue of whether surrender/extradition is permitted. It is not a technicalissue of the type which had resulted in the District Court refusing the extradition inBolger, by way of example. It is also important in that respect, that EAW 7 (the presentEAW) does not “correct” any defect in the original warrant. There is no new informationprovided to this Court. It is the same request being repeated in exactly the samemanner. This Court is being asked to decide exactly the same issue on the same facts,i.e. is there correspondence of offences? The Minister seeks to argue that at leastanother offence should be considered for the purpose of making a decision on whetherthere is actually correspondence of an offence. In so far as we are considering whetherthere is an issue estoppel, the situation is therefore, that all factors and all parties are thesame, save that the Minister wants to put forward a new offence for consideration by theHigh Court, that is, a new legal argument for consideration. The Minister also makes therequest, but the Minister also makes a request to this Court to carry out its ownassessment of correspondence with regard to the full panoply of offences which could becovered, including those considered by Edwards J. but rejected by him.31. In terms of the ratio of the decision in Bailey. It is striking that the Minister neverappealed the decision of Hunt J. in Bailey. The principle of stare decisis applies to thatdecision. In Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 467 Clarke J inthe High Court stated: -“I have come to the view that it would not be appropriate, in all the circumstancesof this case, for me to revisit the issue so recently decided by Kearns J. in IndustrialServices. It is well established that, as a matter of judicial comity, a judge of firstinstance ought usually follow the decision of another judge of the same court unlessthere are substantial reasons for believing that the initial judgment was wrong.Huddersfield Police Authority v. Watson [1947] K.B. 842 at 848, Re Howard’s WillTrusts, Leven & Bradley [1961] Ch. 507 at 523. Amongst the circumstances whereit may be appropriate for a court to come to a different view would be where it wasclear that the initial decision was not based upon a review of significant relevantauthority, where there is a clear error in the judgment, or where the judgmentsought to be revisited was delivered a sufficiently lengthy period in the past so thatthe jurisprudence of the court in the relevant area might be said to have advancedin the intervening period. In the absence of such additional circumstances it seemsto me that the virtue of consistency requires that a judge of this court should notseek to second guess a recent determination of the court which was clearly arrivedat after a thorough review of all of the relevant authorities and which was, as wasnoted by Kearns J., based on forming a judgment between evenly balancedargument. If each time such a point were to arise again a judge were free to formhis or her own view without proper regard to the fact that the point had alreadybeen determined, the level of uncertainty that would be introduced would bedisproportionate to any perceived advantage in the matter being reconsidered.”Page 7 ⇓32. Bailey is a judgment which is binding on this Court unless there are substantial reasonsfor believing that the judgment is wrong. In my view, there is nothing obvious in theIrish decisions opened to me that suggests that there was a clear error in the applicationof the principle of issue estoppel. The only decision opened to this Court that might throwsome further light on this issue was that of A.Y. which was decided subsequent to Bailey.I do not understand that decision to set aside principles of legal certainty such as thosethat may incorporate questions of issue estoppel. At least, it does not do so to the extentthat I could be satisfied that there is a substantial reason to believe the decision of HuntJ. was wrong. In my view, all that A.Y. appears to state is that an executing judicialauthority is required to take a decision on each EAW that is presented for execution. Thatdoes not however, say how or what legal principles must be applied to the taking of thatdecision.33. In those circumstances, I am of the view that I am bound by the decision of Edwards J. inso far as there was an issue estoppel involved as regards the correspondence of offences.Therefore, I must refuse his surrender on offences C/ I, II, III, IV and the single offencein D.34. The only remaining offence is Offence V. I have carefully considered the transcript ofEdwards J. He gave full consideration to the question of correspondence and foundcorrespondence with the offence of an attempt to make a gain or cause a loss bydeception contrary to s. 6 of the Criminal Justice (Theft and Fraud) Offences Act, 2001.On the basis of the decision in Bailey, I am also bound to follow the decision of Edwards J.as there is an issue estoppel between the parties. That is not the end of the matterhowever as I now must consider whether it would be an abuse of process not to surrenderhim.Abuse of Process35. Peart J. in Downey stated at para.19 as follows:-“It is clear from J.A.T (No. 2) that there can be circumstances which justify theHigh Court refusing an application for surrender on the basis of abuse of process.But it is equally clear firstly that such cases require some exceptional circumstanceto justify such refusal, but, and critically, that the abuse asserted to exist must beof the processes of the High Court here dealing with the application for surrender,and therefore must relate to the application for surrender itself, and not to theprosecution of the offences which the respondent will face if he/she is surrendered.The different question whether there might be an abuse of process were therespondent put on trial for the offences for which surrender is sought is not amatter for determination in this jurisdiction on an application for surrender. Absentany suggestion that there is no possibility of a fair hearing of any application tohave his trial on these offences stayed, and there has been no such suggestionmade by the appellant, it is in my view clear that any such question of abuse ofprocess will be a matter to be pursued by the appellant before the courts in therequesting jurisdiction.”Page 8 ⇓36. Both sides agree that the abuse of process jurisdiction exists and there is no question inthe present case as regards abuse of process in relation to the respondent’s trial in Polandand I have dealt with the fair trial issues. What is at issue is whether it is an abuse ofprocess to surrender him; in other words, is it an abuse of the High Court’s process.37. In my view the most authoritative dicta on abuse of process comes from the decision ofthe Supreme Court in J.A.T. (No.2). O’Donnell J. with whom the other members of theCourt agreed, stated that something is either an abuse of process or it is not. Hecautioned courts to be wary of introducing a concept of duty of care into the considerationof warrants. He also acknowledged the considerable weight to be attached to the publicinterest in ensuring that persons charged with offences face trial and referred tointernational and EU obligations on Ireland under extradition and surrender agreements.38. In upholding the decision to refuse surrender, O’Donnell J. referred to three factors whichwere asserted cumulatively as leading to an order to refuse to surrender. With regard tothe first factor he stated as follows: -“The first factor is the undoubted fact that the first warrant was found to bedefective by order of this Court, and this is a repeat application. It is important, inmy view, to maintain, however, the clear distinction between the principles of resjudicata and the closely associated principles established in Henderson v.Henderson and A.A. v. The Medical Council [2003] 4 IR 302, on the one hand, andthe law relating to warrants on the other. Henderson v. Henderson deals with thequestion of a full inter partes hearing of civil proceedings under a process designedto ensure that the true issues between the parties are identified (if necessary byamendment of pleadings) and determined. The position in relation to warrants isfundamentally different. Importantly, there is no process of amendment. The issueis the validity of the warrant as issued. Strictly speaking, when a fresh warrant isissued, its validity becomes a separate issue. It is not res judicata because theissue under the new warrant has not been decided. Technically (and this is atechnical issue) the issue now is the validity of the new warrant. Nor is itappropriate to try to apply the concepts of bringing all claims at the same time. Inthe case of warrants, that would amount to saying that only one warrant could everbe issued. For these reasons and more, it has always been held that the fact thatan initial warrant has been found to be defective does not preclude the issuance ofa further warrant. (See ex tempore judgment of Denham J. in Bolger v. O’Toole(Unreported, Supreme Court, 2nd December, 2002) and ex tempore judgment ofKeane C.J. in Attorney General v. Gibson, (Unreported, Supreme Court, 10th ofJune, 2004). Indeed, it could be said that this is part and parcel of the law whichalso requires that warrants should be scrutinised with rigour. For my part,therefore, I do not think that concepts such as oppression and harassment byrepeated application, which employs part of the language used in Henderson v.Henderson, should be used in dealing with warrant issues. There may becircumstances in which the repeated issuance of warrants may be prohibited, eitherbecause of bad faith, the seeking of tactical advantage, or otherwise. It may alsoPage 9 ⇓be appropriate to consider the impact on an individual of repeated applications. Butthose situations require to be analysed in the context of the law relating towarrants, and not of some hybrid version incorporating the principle in Hendersonv. Henderson.”39. I must therefore take into account the various issues in this case.40. The first issue I have regard to is that this is the fifth application for his surrender inrespect of this matter. While the fact of repeated warrants is not determinative of theissue, it must be noted that this is certainly an unusual number of requests. It is howeverimportant to note that the main reason (apart from the first to which I will return) for thisnumber of warrants is that he has been successful in domestic proceedings and/orapplications to reduce the number of offences for which his surrender is sought. In favourof the respondent is that it appears there may well have been less intrusive means ofpursuing him in respect of these offences in the first place.41. It is of considerable importance that his extradition was ordered on this matter on the30th November, 2011. A stay was put on the order for surrender later, but by 16thDecember, 2020 the order for surrender was operable. He was not surrendered in timeand on the 28th December, by consent, his Article 40 application was conceded and hewas released. He had spent some time in custody.42. On considering this matter over the past two days, I came across a reference to a letterthat the Minister for Justice and Equality had sent to the Polish IJA. It occurred to methat this might have explained why the respondent had not been surrendered. By lettercontained at page 183 of the booklet, the Polish IJA had noted that EAW 1 “could not beexecuted due to the formal reasons on your side, which you informed this Court about inyour letter of 9th January 2012”. I now have the letter of the 9th January, 2012 and itgives to the Polish authorities an explanation as to why the Minister thought he hadfurther time in which to effect the surrender. It appears that a surrender date hadactually been agreed for the 28th December, 2011 which is the date he was actuallyreleased pursuant to an order under Article 40.4 of the Constitution. It cannot be saidthat the Polish authorities were in default by not surrendering him in time, and it is clearthat the Minister appears to have made an error based on a misinterpretation of a newpiece of legislation. In that regard, I want to make it clear that I do not consider that theerror was grossly negligent or made through want of diligence but was simply an error ofinterpretation that unfortunately but perhaps unsurprisingly in the context of complexlegislation, can occur.43. After being notified of the problem with surrender, it seems that there was reasonablediligence by the Polish IJA thereafter and the warrant was transmitted in due course andendorsed. The respondent was not arrested until sometime later in October, 2012 and Ihave no explanation as to why it took those months to arrest him, because it appears thathe was arrested by arrangement at the CCJ.44. The subsequent delays are as set out above.Page 10 ⇓45. Nowhere in the voluminous set of papers that I have, does it explain why the Polishauthorities were of the view that they were entitled to seek his extradition for the otheroffences, the offences for which Edwards J. had refused to surrender. According to A.Y.,it seems that no matter what, there is an onus on this Court to take a decision. I havenot been provided with any correspondence that would indicate that the Polish authoritieswere told of the refusal of surrender for some of these offences. I do note however thatat the beginning of the proceedings on EAW 7, it appears that both the Minister andrespondent were operating on the basis that there had been a surrender in relation to fiveout of six offences, and not a refusal of five out of the six offences.46. There has been a subsequent delay due to Lipinski and Celmer. In relation to the Celmerissue, I am not of the view that this is a matter to which this Court must pay attention.That occurred by necessary effluxion of time for proper consideration by a variety ofcourts of what were difficult issues.47. I am satisfied that most of the delay was actually due to the respondent seeking to havethe other offences for which his surrender was sought, dealt with by means other thanrecourse to the EAW. There is therefore an explanation, together with the Celmer delayfor the vast bulk of the delay including the delay in the beginning on the surrender whichseems to have been due to an error of interpretation.48. In relation to the offence for which he is sought, the maximum penalty is eight years. Hewill have to be given credit for the time spent in custody which is about 28 dayssubsequent to the order of surrender. The offence is attempted fraud. It dates back toMarch 2005 which is now almost 15 years ago. It is clearly not a crime of violence,however it is not an insignificant crime and it is one which carries a sentence of 8 years’imprisonment.49. I have to consider his personal circumstances. He is settled in Ireland for a considerableperiod of time, although it is not entirely clear how long. He lives here with his wife andchild. His mother in law is also in this jurisdiction. His father and mother separated whenhe was young but he saw his father weekly. His father died in 2003. His mother has MSand he does his best to help her in Poland. He was married in Poland in 1998 and theyhad one son but this marriage only lasted until 2002 when his wife became involved withsomeone else.50. He says it was because of this acrimonious divorce that he had problems with the law. Helater had problems with securing employment due to a combination of market conditionsand interference by his in-laws. He says he has resided in this jurisdiction sinceNovember 2006 and has lived here in his own name, registered with the appropriateauthorities and went on holidays. He became involved in a second relationship here andsays he registered his second child’s birth with the Polish embassy in this jurisdiction. Hedid not hide from the law and refers to his seven weeks in custody.51. In my view, there is little if anything in his circumstances that is exceptional or evenunusual or in any way raises real concerns about respect for his private and family life IPage 11 ⇓accept that exceptionality is not the criteria for the enquiry under Article 8. If there weresolely an Article 8 application I would have no hesitation in saying that the public interestin his surrender far outweighed his private interests. There may have been some delaybut this has mostly been explained. Although his surrender is sought for only one offenceit is not a minor one and carries a penalty of up to 8 years. In light of this offence, thereis a high public interest in his surrender. It will undoubtedly be difficult for his wife andchild if he were to be surrendered, but this is an unfortunate consequence of the public’sinterest in ensuring that alleged offences are prosecuted. Even after all this time relianceon Article 8 would not avail him.52. Much of the respondent’s claim to an abuse of the process centred on the fact that he hadsucceeded previously in resisting surrender on five out of six of these offences. Thatargument falls away now that I have refused his surrender in relation to the others.53. The strength of his argument lies in the fact that he was not surrendered in time. I donot accept that this gives rise to an abuse of process by itself. I also do not accept thatthe delay gives rise to an abuse of process. It is generally well explained. The shortperiod of unexplained time in 2012 between the endorsement and his arrest does notbring this within the sphere of an abuse of process.54. The Polish authorities have repeatedly asked for his surrender on offences for which hewas refused, and of course I have to take into account that it is only one offence now andthat he has been successful in relation to the others. I do not accept that that in and ofitself amounts to an abuse of process. It is not clear that the IJA were told about therefusal initially but it certainly appears that having asked again, they were not told by theMinister or this Court or even the respondent that they should not pursue him. In anyevent, even if they had been told, I do not think that it is an abuse of process per se foran IJA to make a repeat request where it has been refused. The decision in A.Y. makesclear that there is an onus to deal with warrants and it doesn’t say that there cannot be afurther request. Moreover, an IJA cannot be taken to understand that a particularMember State’s legal system may operate such matters as issue estoppel or in otherjurisdictions res judicata and that further requests would be refused if not based onsimple technical matters.55. Even when taken cumulatively, I am satisfied that there is no abuse of process in relationto any of the factors the respondent has raised. I am satisfied there is no mala fides orimproper motive or indeed any real culpability. It is not, in my view or in the words ofO’Donnell J., a situation where it “can nevertheless be said that to permit proceedings tocontinue would be an abuse of the Court’s process in the sense that it would no longer bethe administration of justice.” There was a failure to surrender him, the next EAW issuedpromptly but was not executed because of the various reasons as set out above. Therespondent has as I have said, no substantive Article 8 issues in his case. The offence,although not one of violence is reasonably serious. There is a high public interest insurrender even in a case such as this. Nothing in the behaviour of either the Polishauthorities or the Minister brings this into the realm of an abuse of process. There was noPage 12 ⇓mala fides and even if there was some want of care in certain periods, there is nothingcoming close to this request for surrender no longer being the administration of justice.In short, there is no abuse of process.56. I therefore order his surrender in respect of Count V in the EAW before me.57. For the avoidance of doubt, I will also say that I am satisfied that his surrender is notprohibited on any other ground as set out in s. 16 of the 2003 Act.58. I therefore am satisfied that I can order his surrender in respect of the sole Count V in theEAW before me. I therefore make the order under s. 16(1) that Mr. Leopold besurrendered to such other persons as is duly authorised by the issuing state to receivehim.
MJELR -v- Breen
[2008] IEHC 54 (04 March 2008)
Judgment of Mr Justice Michael Peart delivered on the 4th day of March 2008:
The surrender of the respondent is sought by a judicial authority in the United Kingdom on foot of a European arrest warrant dated 26th May 2006, which was endorsed for execution here by order of the High Court on the 11th July 2006. The respondent was arrested on foot of same on the 18th July 2006 and brought before the High Court as required by s. 13 of the European Arrest Warrant Act, 2003, as amended (“the Act”). He was remanded from time to time pending the hearing of this application for his surrender under s. 16 of the Act.
No issue is raised in relation to the identity of the respondent, and the Court is in any event satisfied from the affidavit evidence of the arresting officer, Sgt. Linehan that the person who was arrested is the person in respect of whom this warrant has been issued.
The warrant seeks the surrender of the respondent so that he can be prosecuted in England for the offence of escaping from lawful custody contrary to Common Law. From the warrant it is clear that while serving a sentence of imprisonment in a prison in Lincolnshire, which had been imposed upon him by a Court in Jersey (Channel Islands), that prison being what is known as ‘an open prison’, he escaped from that prison and came to this country. A point of objection has been raised as to correspondence, and in that regard it has been contended on the respondent’s behalf that leaving an open prison before completion of sentence is to be distinguished from escaping from prison, and in this way it is sought to contend that the action of the respondent of leaving that prison would not, if it had been done in this jurisdiction, amount to the offence in this jurisdiction of escaping from lawful custody contrary to Common Law. No authority has been put forward for such a proposition, and I am satisfied that if the respondent left an open prison in this jurisdiction without lawful authority, thereby escaping in the normal sense of that word, he would be guilty of the offence of escaping lawful custody contrary to common law, and I am satisfied therefore that correspondence is made out. It cannot be contended in my view that there is some distinction to be drawn between an open prison and what I will describe as a closed or lock-up prison for the purpose of the offence.
The minimum gravity requirement in relation to that offence here is satisfied, since the offence carries a possible maximum sentence of life imprisonment.
Subject to reaching a conclusion on the remaining point of objection raised on behalf of the respondent, I am satisfied that there is no reason under sections 21A, 22, 23 or 24 of the Act to refuse to order the surrender of the respondent, and I am further satisfied that the surrender of the respondent is not prohibited under any provision of Part 3 of the Act or the Framework Decision.
Point of Objection:
Before setting out the point of objection in question, I will set out some relevant facts which form the background to the present application. As I have stated, the surrender of the respondent is sought so that he can be prosecuted for an offence of “escaping from lawful custody contrary to common law”. According to the facts contained in the warrant, the respondent was sentenced to a period of 10 years imprisonment on the 29th April 2002 by the Royal Court of Justice of Jersey for an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely heroin.
It appears from the warrant that on the 18th August 2005 the respondent was sent by the Jersey authorities to a prison in Lincolnshire, England where he continued to serve the sentence imposed in Jersey. There are apparently arrangements in place between Jersey and the United Kingdom whereby persons convicted and sentenced in Jersey can serve that sentence in the United Kingdom.
It is stated in the warrant that the earliest date for his release at that stage was the 26th February 2008. Nine days following that transfer to what appears to have been an open prison in Lincolnshire, the respondent left that prison without authority to be absent, and on the 19th March 2006, the Lincolnshire police received information that he had been arrested in this jurisdiction where he was remanded in custody for an offence here.
It is further stated in the warrant that the respondent has “at least 913 days left to serve in respect of the sentence imposed by the Royal Court of Jersey”. It is important in relation to the submission now made on behalf of the respondent to state that in the warrant it is stated: “it is understood that the Attorney General’s Office, Jersey intend to make a separate application under the provisions of Schedule 1 of the Crime (Sentences) Act 1997 for his transfer from England, should the defendant be returned to England pursuant to this warrant and upon the completion of any sentence he receives in England for the offence of escape from lawful custody”.
The warrant at paragraph (f) states:
“United Kingdom law states that a person surrendered to the United Kingdom by Ireland shall not be surrendered to another Member State of the European Communities pursuant to a European arrest warrant in respect of an offence committed or alleged to have been committed before his surrender by Ireland to the United Kingdom save only where the Central Authority of Ireland gives its consent.”
The relevant provision of the United Kingdom Extradition Act 2003 (section 18) is set forth in the warrant. That section essentially provides that a person’s extradition to another Member State of the European Union is barred by reason of his earlier extradition to the United Kingdom from a member state, unless the consent of the latter member state has been obtained. In other words, if an order for the respondent’s surrender to the United Kingdom is made, the authorities in the United Kingdom must obtain the consent of the High Court here before they could surrender him on to another Member State for prosecution there in relation to a different offence.
Paragraph 8 of the warrant refers to a similar provision in relation to any onward surrender to what is referred to in the United Kingdom Act as a “Category 2 country”, being a country other than a Member State of the European Union. In other words, following a surrender of the respondent from this jurisdiction to the United Kingdom, the authorities there could not make an order for his onward surrender to such a Category 2 country without first obtaining the consent of the High Court here. That is the effect of these provisions.
Before addressing the concerns of the respondent in this regard, I should at this stage state that Jersey is not part of the United Kingdom, and neither is it a member state of the European Union. One would therefore think that Jersey must be a Category 2 country under the law of the United Kingdom, or, as we would refer to it here, a Part II country. If that were so, this court could be satisfied from the information contained in the warrant as to the law in the United Kingdom in this regard that no onward surrender of the respondent to Jersey, following his surrender from this jurisdiction, would take place without the consent of the High Court here being first obtained. In such circumstances, his surrender from this jurisdiction to the United Kingdom would not be prohibited, even though the intention to surrender him to Jersey was made known in the warrant.
However, in an affidavit sworn by Jason Elliott, a practising barrister and a member of the Inner Temple in London, it is explained that Jersey is not in fact a Category 2 country, as arrangements for extradition between Jersey and the United Kingdom are not effected under the provisions of the UK’s Extradition Act 1983 in so far as they refer to Category 2 countries. The reason for this, according to the affidavit of Mr Elliott, is that by virtue of section 13 of the Indictable Offences Act 1848, a backing of warrants system operates still to secure the return of criminal defendants from England to Jersey. That system is similar to the backing of warrants procedure which, under Part 3 of the Extradition Act 1965 here, prior to its repeal by the European Arrest Warrant Act 2003, operated between this country and the United Kingdom.
It is submitted by Aileen Donnelly S. C. on behalf of the respondent that if the respondent is surrendered from this country to the United Kingdom, the authorities in the United Kingdom will be obliged in due course to surrender the respondent to the authorities in Jersey under the backing of warrants system if a warrant is received from the authorities in Jersey for that purpose, and that accordingly the safeguards to which the respondent is entitled under the Framework Decision, as given effect to by the extradition legislation in both here and the United Kingdom whereby the consent of the High Court here must first be obtained, will be denied to him and circumvented.
Ms Donnelly has submitted therefore that the provisions of section 24 of the European Arrest Warrant Act 2003, as amended, cannot be complied with in the present case and that therefore his surrender must be refused. Section 24 provides:
“24. — — (1) 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 European arrest warrant shall not be extradited to a third country without the consent of the High Court and the Minister first being obtained.
(b) the person will be extradited to a third country without such consent first being obtained.
(2) it shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to extradite him or her to a third country, unless the contrary is proved.
(3) the issuing state may request, in writing, the High Court to consent to the extradition to a third country by the issuing state of a person surrendered to the issuing state under this Act.
(4) the High Court may give its consent to a request under subsection (3) if it is satisfied that
(a) where the person concerned in that state, and
(b) where a request for his or her extradition received in the State from the third country concerned,
his or her extradition pursuant to such a request would not be prohibited under the Extradition Act 1965 to 2001.”
In the view of all of these provisions, Ms Donnelly has submitted that, given the backing of warrants regime that exists in relation to extradition between the United Kingdom and Jersey, the presumption contained in section 24 (2) above is rebutted, and that this court must therefore refuse to order a surrender.
When this point was raised in the Points of Objection, the applicant filed an affidavit by David Auty, who is a solicitor working for the Crown Prosecution Service in the United Kingdom. He states that he was responsible for the drafting of the European arrest warrant in this case, and that it was he who, in good faith and following a conversation he had with a Senior Legal Adviser at the Attorney General’s Office in Jersey, inserted a paragraph in the warrant which I have already set forth, and which stated that the attorney general’s office in Jersey intended to make an application for the transfer of the respondent from England to Jersey upon completion of any sentence which he might receive in England for the offence of escaping from lawful custody.
I presume that the intention of Jersey seeking the respondent’s onward surrender to Jersey would be so that the respondent would serve out the remainder of the sentence imposed upon him in Jersey in 2002. He requests that this court should ignore that paragraph as it is incorrect, and in paragraph 5 of his affidavit he states that “the sole purpose of the European Arrest Warrant is to seek the return of the respondent for the purpose of prosecuting him for the offence of escaping from lawful custody”. In other words, he is stating that there is no intention to surrender the respondent to Jersey, either in the event of an acquittal in respect of the offence referred to in the warrant of escaping from lawful custody, or at the conclusion of any sentence which may be imposed upon him if he is convicted.
That affidavit was sworn by Mr Auty on the 28th February 2007. In a further affidavit sworn by Mr Auty on the 11th June 2007 he states that following discussions with representatives of the Home Office and the National Offender Management Service, Ministry of Justice, he believes the position now to be that “if the defendant is returned to the United Kingdom pursuant to the European Arrest Warrant dated 26th May 2006, he will be detained solely for the purpose of facing prosecution and any sentence that may follow for the offence of escaping from lawful custody”.
He goes on to state that “any transfer to Jersey can only be for the offence of escaping from lawful custody and this can only be upon the application of the defendant under the provisions of the Crime (Sentences) Act 1997.”
He states also that he has been asked to say within his affidavit that if a request for a transfer is received from the authorities in Jersey, such a request will not be proceeded with unless and until the consent of the Irish High Court has been obtained. He states also that since there is no legal mechanism in place to allow Jersey to make such an application, it is unnecessary for him to give such an assurance. Ms Donnelly submits that, given the backing of warrants system for extradition between the United Kingdom and Jersey under the legislation to which I have referred, this assurance cannot be taken at face value.
The applicant has provided a further affidavit by Melanie Cumberland, barrister at law in England, and she states that she has been requested by the Crown Prosecution Service to provide an opinion on the following two matters:
(1) In the event of that the respondent is extradited to the United Kingdom, if a request for a transfer is received from the authorities in Jersey, can an undertaking be given to ensure that such a request is not proceeded with unless and until the consent of the Irish High Court has been obtained?
(2) In the absence of such an undertaking, could the respondent simply be transferred to the Channel Islands under the backing of warrants procedure pursuant to section 13 of the Indictable Offences Act 1848?
She states that she has had sight of the warrant in this case as well as the affidavit of Jason Elliott, and the affidavits of David Auty to which I have referred, as well as various items of correspondence. She confirms that extradition from the United Kingdom to Jersey is governed by section 13 of the Indictable Offences Act 1848 and she sets out the provisions of that section in full. It describes the backing of warrants procedure and it is clear that it mirrors to a large degree the backing of warrants procedure to which I have already referred and which formerly existed between this country and the United Kingdom under Part 3 of the Extradition Act 1965. She states that this system is still in force as between the United Kingdom and Jersey. At paragraph 15 of her affidavit she states as follows:
“The backing of warrants system as defined by section 13 of the Indictable Offences Act 1848 is still in force. If Mr Breen’s transfer were requested from Jersey pursuant to this system, it would operate in the following way. The Court in Jersey would issue a warrant for Mr Breen’s arrest pursuant to section 13 of the Indictable Offences Act 1848. The warrant would be sent by the police force in Jersey to the corresponding police force in England. If the English police force were satisfied that Mr Breen was likely to be found in England, the warrant would be placed before a Magistrates Court in England, and the Court would endorse or ‘ back’ the warrant. Pursuant to this ‘ backed’ warrant, Mr Breen would then be arrested. The police forces in England and Jersey would then make the necessary arrangements for Mr Breen’s transfer to Jersey. The Crown Prosecution Service is not generally involved in this process. It follows that David Mark Auty correctly declined in his affidavit dated the 11th June 2007 to give such an undertaking.”
At paragraph 16 of her affidavit she states as follows:
“If Mr Breen were returned to England pursuant to the EAW currently before the Irish Courts, unless he gave his consent, he could only be returned to Jersey pursuant to a backed warrant, issued and endorsed in compliance with section 13 of the Indictable Offences Act 1848. There appears to be no basis for the assertion made by Jason Elliott in his affidavit dated 22nd January 2007 that the European Arrest Warrant may have been issued in bad faith, not for the purpose of trying Mr Breen for the offence of escape, but rather to transfer him to Jersey to serve the remainder of his sentence for being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug.”
In answer to the first question upon which she was asked to advise, namely whether an undertaking could be given to ensure that such a request is not proceeded with unless and until the consent of the Irish High Court has been obtained, she states:
“Under the Indictable Offences Act 1848 there is no express provision allowing for the provision of an undertaking by the requested territory that it will seek the consent of a third state before effecting a transfer pursuant to a backed warrant. The present case appears to be the first occasion on which such an issue has arisen and there is no precedent which assists.
However, on the information I have had the opportunity to consider, it appears that even though the procedures are in theory available to them, the Jersey authorities have taken the view that as a matter of law they are unable to request Mr Breen’s return to Jersey either from Ireland under the 1989 Act or from England under section 13 of the Indictable Offences Act 1848 for the purpose of serving the remainder of the sentence of 913 days imposed to the offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug. This is a matter of Jersey law and I am not qualified to express a view as to whether in the circumstances of this case such a request would be possible.
If the Jersey authorities have formed a concluded view that they are unable to request Mr Breen’s return to Jersey from either Ireland or England, an undertaking to the effect that they no longer seek his return and will not in future seek his return if he is extradited to England, may be sufficient to satisfy the Irish Court that Mr Breen will not be returned to Jersey upon his extradition to England and therefore the need for consent to be obtained would no longer arise.”
In answer to the second question upon which she was requested to advise, namely whether in the absence of such an undertaking that the respondent could simply be transferred to the Channel Islands under the backing of warrants procedure, she states as follows:
“It appears that the Jersey authorities do not consider themselves able as a matter of law to make a request for the extradition or transfer of Mr Breen to Jersey either under the 1989 Act or under section 13 of the Indictable Offences Act 1848.
If the Jersey authorities were able to make such a request, Mr Breen would be returned to Jersey under the backing of warrants procedure pursuant to section 13 of the Indictable Offences Act 1848. This is in accordance with the law of Jersey and the United Kingdom.”
Ms Donnelly submits that these arguments make the position absolutely clear, and that the presumption to which I have referred already has been rebutted.
It would appear that on the 17th August 2007 Mr Auty sent the affidavit of Melanie Cumberland to the Attorney General’s Office in Jersey, because there is a letter dated the 17th August 2007 from the Attorney General in Jersey, and signed by him, in which he refers to having received that affidavit and the opinion contained therein. He states as follows:
“It is clear as a matter of law that if Mr Breen is returned to the UK from Ireland, Jersey would not be able to seek Mr Breen’s return to Jersey under the Crime (Sentences) Act 1997.
I disagree with Ms Cumberland’s conclusion that Jersey could seek his return from the UK under the Indictable Offences Act 1848. An arrest warrant for backing by an English magistrate may only be issued by the Royal Court of Jersey where reasonable grounds exist to suspect that a person has committed an offence under the law of Jersey. By escaping from lawful custody in England Mr Breen has not committed an offence against Jersey law, but an offence against English law.
It follows that although an undertaking by me that Jersey will not seek Mr Breen’s return from the UK is otiose as a matter of law, I am content to give it.
I formally undertake to the appropriate authorities of the Republic of Ireland that in the event that Michael John Breen is returned to the United Kingdom from Ireland, no request will be made by the authorities of Jersey for his return to this jurisdiction in respect of the outstanding term of that prison sentence from which he escaped in August 2005.”
That letter is assigned by the Attorney General of Jersey.
By letter dated 9th January 2008 the respondent’s solicitors wrote to the Chief State Solicitor’s Office asking them to confirm in advance of the hearing of this application that not only will no request be made by the authorities of Jersey for the respondent’s return to that jurisdiction in respect of the outstanding term of a prison sentence from which he escaped in August 2005 (as per the undertaking given by the Attorney General of Jersey) but that the United Kingdom authorities will not reactivate the balance of that sentence if he is to be returned to the United Kingdom on foot of the European Arrest Warrant issued for the sole offence of escaping from lawful custody whilst detained in the United Kingdom. On the hearing of this application before me, Counsel on behalf of the applicant, Micheál P. O’Higgins BL confirmed that he was instructed to give those confirmations.
Ms Donnelly submits that the undertaking which has been provided by the Attorney General in Jersey is not contained in any sworn document and is not therefore evidence, and she has referred to the provisions of section 20 (3) of the Act which provides as follows:
“(3) in proceedings under this Act, evidence as to any matter to which such proceedings relate may be given by affidavit or by a statement in writing that purports to have been sworn
(a) by the deponent in a place other than the State, and
(b) in the presence of a person duly authorised under the law of the place concerned to that test to the swearing of such a statement by a deponent, howsoever such a statement is described under the law of that place.”
In her submission, this provision requires that a matter such as the undertaking in this case which has been given by the Attorney General in Jersey must be contained in such a sworn document, and that this court should therefore ignore it on the basis that it is inadmissible as evidence. She also states that the letter from the Attorney General in Jersey is itself internally inconsistent in as much as it is unclear whether it is an undertaking that the respondent will not be charged with a Jersey offence, or whether it is an undertaking that his surrender will not be sought by Jersey so that he can serve out the remainder of the sentence imposed upon him in Jersey in 2002.
In reply to this submission, Mr O’Higgins submits that while the undertaking in question is not “evidence” it is a document nevertheless which is provided to the court and is ‘in the case’, and in this regard, he has referred to the provisions of section 12 (2) of the Act which provides:
“(2) such undertakings as are required to be given under this Act shall be transmitted by, or on behalf of, the issuing judicial authority or the issuing state as may be appropriate to the Central Authority in the State……”.
Mr O’Higgins has referred also to the provisions of section 12 (3A) of the Act which provides:
“(3A) an undertaking required under this Act may be set out in the European arrest warrant or in a separate document.”
Mr Higgins submits that the undertaking in question does not require to be exhibited in an affidavit in order to be accepted by this court. He submits that this court is entitled to accept this undertaking given the nature of the document, being what he describes as a promise by one state to another. He submits in any event that if for any reason the undertaking is not honoured in the future, the respondent would be entitled to apply for his release following arrest, given the contents of the undertaking which has been given. But he submits that this court is entitled to presume that any such an undertaking will not be breached.
By way of response, it was submitted on behalf of the respondent that, given the nature of the backing of warrants system where a person can simply be arrested on foot of the backed warrant and removed from the United Kingdom to Jersey without ever being brought before a court, the opportunity for the respondent to apply for an order of habeas corpus or other order for his release does not exist for him. It is submitted that upon arrest on foot of such a backed warrant, the respondent would simply be removed from the jurisdiction of the United Kingdom upon arrest.
Mr O’Higgins has submitted that given all the information which is available to this court on this application through the affidavits of Mr Auty and the undertaking from the Attorney General in Jersey, the issue being raised by the respondent in relation to his possible surrender to Jersey after he has been dealt with in respect of the offence of escaping from lawful custody in the United Kingdom is something of a ‘red herring’. He submits that the position now is very clear that the warrant seeks his surrender for the purpose only of being prosecuted for that offence, since Mr Auty has stated in his affidavit that the paragraph contained in the warrant, stating that Jersey intended to apply for his transfer from England to Jersey following completion of any sentence which he might receive in England for the offence of escaping from lawful custody, was inserted in error. He submits that the difficulty identified by the respondent as a result of the insertion of that paragraph in the warrant has arisen only because of its erroneous insertion in the warrant, and that it is clear now, in view of the assurances given by the issuing judicial authority and the Attorney General in Jersey, that the only thing which will happen to the respondent upon surrender is that he will face a prosecution for the offence referred to in the warrant, and that there is no question now but that the respondent will not be required to serve the balance of the Jersey sentence either in the United Kingdom or in Jersey.
In relation to the concern raised by the respondent that the authorities in Jersey might not observe the undertaking contained in the letter from the Attorney General in Jersey, and that they might in fact issue a warrant for backing under the backing of warrants procedure, Mr O’Higgins submits that it is now clear that were it to happen at all, such a warrant could be issued in Jersey only in respect of a new Jersey offence, and as stated by the Attorney General in Jersey, the respondent has not committed any new offence against Jersey law, but rather an offence against English law for which his surrender is currently sought. In such circumstances, it is not possible that a warrant would be issued in Jersey for any new Jersey offence, and therefore there is no possibility that such a warrant would be sent to the authorities in the United Kingdom in order to be backed for the purpose of arresting the respondent and surrendering him to Jersey. Such a warrant could not be issued for the purpose of obtaining the respondent’s return so that he can serve out the remainder of his sentence in Jersey. Mr O’Higgins therefore submits that there is no reality to the respondent’s concerns in this regard, but in so far as he has these concerns, the undertaking which has been provided must be seen as sufficient reassurance and guarantee against such an event occurring at all.
Conclusions:
First of all, this Court must accept the assurance given on behalf of the issuing judicial authority in the United Kingdom that the reference in the warrant to an application by the Jersey Attorney General in due course for the transfer of the respondent back to Jersey should he be surrendered to the United Kingdom, was something which was inserted by reason of the error described by Mr Auty in paragraph 3 of his affidavit sworn on the 25th February 2007.
It is clear in my view that the existence of that paragraph in the warrant was such as to rebut the presumption contained in s. 24(2) of the Act, and if it had not been withdrawn in the manner in which it has been, the applicant may well have been in some difficulty in satisfying this Court that the law in the United Kingdom was such that the provisions of s. 24(1) of the Act could have been complied with, given the unique arrangements in existence between Jersey and the United Kingdom under the 1848 Act already referred to as the ‘backing of warrants’. There may well have been no provision which enabled the consent of the High Court to have been sought and obtained, given the fact that upon receipt of a warrant from Jersey the warrant would simply be backed and thereafter the respondent would simply be arrested and sent back to Jersey on foot of same.
But the affidavits which have been filed, and the exhibits which have been included therein have now made the position so clear that the presumption has been reinstated. This Court can be in no doubt, given the reliance which it must place on what it is told by another judicial authority, or on its behalf, that this respondent is being sought solely for the purpose of facing prosecution for the offence of escaping from lawful custody, and not for the purpose of either being sent back to Jersey or even for the purpose of serving out the balance of 913 days remaining outstanding in relation to the Jersey sentence. Ms. Donnelly has sought to rely on the existence of the backing of warrants arrangements between Jersey and the United Kingdom, but I am satisfied that those arrangements cannot come into play in relation to the outstanding sentence, and that if a warrant was to be sent by Jersey it could only be issued and sent over in respect of a new Jersey offence, and since the respondent has not been in Jersey since he was transferred to England to serve the Jersey sentence, that is not a possibility.
Ms. Donnelly has made a point also that the undertaking which has been given by the Attorney General in Jersey cannot be regarded as admissible as evidence given that it has not been sworn to in any affidavit as, in her submission, is required under s. 20(3) of the Act. It is unnecessary for me to decide that issue in this case since I am of the view that such an undertaking is unnecessary for the reasons appearing. The Attorney General in Jersey has himself made the point that such an undertaking is otiose for the reasons given by him in the letter, and I agree with him.
In my view, the presumption contained in s. 24(2) of the Act has not, in the light of all the facts now available to this Court been rebutted, and s. 24 therefore presents no reason why the surrender of the respondent must be refused.
For completion I should also state that the respondent raised a point of objection that he was not a United Kingdom prisoner, but rather a Jersey prisoner, and that as such he could not be the subject of a European arrest warrant since jersey is a ‘third country’ and not a EU Member State. It is unnecessary to dwell on that objection. The respondent has averred in an affidavit that a different prison regime exists in UK prisons for Jersey prisoners and that he is recognised to be a Jersey prisoner while there. This fact is not one which has been shown in any way to prevent the UK authorities from prosecuting the respondent for his escape from lawful custody in the United Kingdom, and in my view that is an end to that point of objection.
I am satisfied for all of these reasons that the Court is required to make the order sought for the surrender of the respondent to the issuing state, and I will so order.
MJELR -v- Kavanagh
[2008] IEHC 81 (13 March 2008)
Judgment of Mr Justice Michael Peart delivered on the 13th day of March 2008:
The surrender of the respondent is sought by a judicial authority in the Netherlands pursuant to a European Arrest Warrant which issued there on the 11th November 2007. The warrant was endorsed here on the 5th December 2007 and the respondent was arrested on foot of same on the 16th December 2007.
There is no issue raised by the respondent as to his identity, and this Court can be satisfied in any event from the affidavit of the arresting Garda, Sergeant Martin O’Neill that the person who he arrested on the 16th December 2007 is the person in respect of whom this European arrest warrant has been issued.
The surrender of the respondent is sought by a judicial authority in the Netherlands so that he can be prosecuted in respect of what can be broadly described as a drugs offence, and which has been ticked in the appropriate box in the European arrest warrant under the heading “illicit trafficking in narcotic drugs and psychotropic substances”.
This is an offence within the categories of offences contained in Article 2.2 of the Framework Decision and, as such, is one in respect of which double criminality does not require to be verified. The offence satisfies the minimum gravity requirement under the laws of the issuing state being an offence in respect of which a sentence of imprisonment of 12 years is possible.
Subject to addressing the points of objection raised by the respondent in opposition to the application for his surrender, I am satisfied that there is no reason under sections 21A, 22, 23 or 24 of the Act to refuse to order surrender, and I am also satisfied that his surrender is not prohibited by anything in Part III of the Act or the Framework Decision.
In his points of objection, the respondent raises a number of matters which, in his opinion, prevent the document, which was endorsed by the High Court as a European arrest warrant, from being properly regarded as such, due to alleged defects or lack of clarity and detail in the document. It is submitted that the document is not in the form required by the Framework Decision, and it is contended therefore that this Court cannot treat same as being a valid European arrest warrant and therefore cannot order the surrender of the respondent on foot of same.
It is contended that this warrant does not specify the decision on which the purported warrant is based; that it does not specify any or any adequate place at which the alleged offence took place; that it does not disclose any or any adequate circumstances or degree of participation in the offence by the respondent; that it does not specify any or any adequate nature and legal classification of the alleged offence and the applicable statutory provisions/code: and that it has not been signed by a judicial authority in the Netherlands.
For all these reasons it is submitted that the purported warrant could not properly be categorised as a European restaurant for the purpose of the application for surrender. I will address the various points of objection individually in due course. Before doing so, I should refer to the provisions of section 11 of the Act, as this sets out what shall be specified in a European arrest warrant. Section 11, as amended, provides as follows:
“11. (1) a European arrest warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision.
(1A) subject to subsection (2A) and, a European arrest warrant shall specify –
(a) the name and the nationality of the person in respect of whom it is issued,
(b) the name of the judicial authority that issued the European arrest warrant, and the address of its principal office,
(c) the telephone number, fax number and e-mail address (if any) of that judicial authority,
(d) the offence to which the European arrest warrant relates, including the nature and classification under the law of the issuing state of the offence concerned,
(e) that a conviction, sentence or detention order is immediately enforceable against the person, or that a warrant for his or her arrest or other order of a judicial authority in the issuing state having the same effect, has been issued in respect of that offence,
(f) the circumstances in which the offence was committed or is alleged to have been committed, including the time and place of its commission or alleged commission, and the degree of involvement or alleged degree of involvement of the person in the commission of the offence, and
(g) (i) the penalties to which that person would, if convicted of the offence and specified in the European arrest warrant, be liable,
(ii) where the person has been convicted of the offence specified in the European arrest warrant but has not yet been sentenced, the penalties to which he or she is liable in respect of the offence, or
(iii) whether a person has been convicted of the offence specified in the European arrest warrant and a sentence has been imposed in respect thereof, the penalties of which that sentence consists.
(2) where it is not practicable for the European arrest warrant to be in the form referred to in subsection (1), it shall include such information, additional to the information specified in subsection (1), as would be required to be provided were it in that form.
(2A) if it is not practicable for any of the information to which subsection (1A) applies to be specified in the European arrest warrant it may be specified in a separate document.
(3) for the avoidance of doubt, a European arrest warrant may be issued in respect of one or more than one offence.”
I will deal with the alleged defects in the warrant in the order in which they are raised in the points of objection:
Decision on which the purported warrant is based:
Paragraph (e) above requires that the warrant shall specify, in the context of the present case, that a warrant for the arrest of the respondent has been issued in respect of the offence alleged. What is contained in paragraph (b) of the warrant under the heading “decision on which the warrant is based” is as follows:
“1. Arrest warrant or judicial decision having the same effect.
Type: suspected of contravening sections 2a, 2b, 10.4, 10.5 and 10a of the Dutch Narcotics Act. Importing into or exporting from Dutch territory, transporting substances (heroin) mentioned in schedule 1 to the Dutch Narcotics Act.” (sic)
The respondent submits that what is stated in this paragraph is not sufficient to describe the domestic decision upon which the European arrest warrant has been issued, and he highlights in particular the reference to the words “suspected of contravening…” in order to indicate that it is unclear from the use of the word “suspected” that the respondent is wanted in relation to any charge for an offence. He submits that it is evident from the text of the warrant that there is merely a suspicion that the respondent may have committed an offence, and that it therefore follows that no decision has yet been made to prosecute the respondent in respect of the charge referred to in the warrant.
There seem to be two strands to this particular point of objection. Firstly it is argued that the warrant form has not been properly completed since there is no adequate description of the “arrest warrant or judicial decision having the same effect” being the decision on which the warrant is based, since there is no date or indication of the court which made that order. Secondly, the argument is that the manner in which this paragraph has been completed by the issuing judicial authority is indicative of the fact that no decision has yet been made to prosecute the respondent for the charge in question and that therefore this court should regard the presumption contained in section 21(A)(2) of the Act as having been rebutted. That section provides:
“(2) where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.” (my emphasis)
As to the form of the warrant, bearing in mind the way in which the judicial authority has completed paragraph (b) thereof, I am satisfied that what the issuing judicial authority is required to do is to indicate that there is an arrest warrant or judicial decision having the same effect in existence, and to complete the paragraph in a manner which indicates in a general way the nature of the decision in question. It is not necessary in my view that the warrant contain every piece of information which might exist in relation to any particular matter, such as might be required in a criminal trial process, as opposed to an extradition process. The information contained in paragraph (b) assists this Court in being satisfied that the various requirements of the European arrest warrant had been completed. Provided there is sufficient in the warrant under the various headings in order to provide the necessary information in that regard, the warrant is not to be found invalid simply because it may have been possible to insert a greater amount of detail in a particular paragraph.
In relation to the second line of submission under this particular heading, namely that the presumption contained in Section 21A of the Act has been rebutted by the fact, appearing in the warrant, that the respondent is merely “suspected of contravening sections…” of the Dutch Narcotics Act, that cannot be so. First of all, the warrant, in its opening paragraph, requests that the person referred to in the warrant be arrested and surrendered “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”. In the present case he is quite clearly wanted for the purpose of a criminal prosecution. That paragraph is not to be taken as a mere empty formula simply because it is part of the prescribed form of warrant. This Court is also entitled to presume that a judicial authority in the issuing state will not issue a European arrest warrant for any purpose other than conducting a criminal prosecution or executing a custodial sentence or detention order, since to do so would be to act in breach of the Framework Decision, and this Court is entitled to presume that a Member State, designated for the purpose of section 3 of the Act, will act in a proper and bona fide manner and will not issue a European arrest warrant for purposes other than those for which these arrangements have been adopted by Member States.
In addition, the presumption contained in section 21A of the Act cannot be rebutted simply by reference to some possible ambiguity arising from what is a translation of the original document. Some allowance must be made for the fact that this Court is looking at the warrant in terms of a translation. But in any event, the presumption is in existence until such time as the contrary is proved. The contrary, in my view, cannot be proved without at a minimum an affidavit from a Dutch lawyer. Such an affidavit might assist in a rebuttal of the presumption if it were to explain in detail the criminal procedures under Dutch law and reach a demonstrated conclusion that the stage at which the respondent is in that process, is a stage before which any decision to prosecute has been taken. Obviously, in the light of any such affidavit, the applicant would be entitled to respond on affidavit. That has not happened in this case. The attempt to submit that the presumption is rebutted fails completely on this ground alone. However, I am completely satisfied that a reasonable reading of the translated warrant confirms that a decision has been made to prosecute this respondent for the drugs offence referred to in the warrant.
I should refer to the fact that on this application some additional documentation has been furnished by the applicant. It is not necessary for the court to rely on that additional documentation for the purpose of addressing this particular point of objection.
Warrant does not specify any or any adequate place at which the alleged offence took place:
This complaint arises because in paragraph (e) of the prescribed form of warrant the description of the circumstances in which the offence was committed should include “the time and place of its commission” (my emphasis), and in the present case, this paragraph contains simply the following sentence: “involved in taking receipt of 20 kg of heroin between approximately 9.00 hrs and 17.30 hrs on 09 November 2007.”
I can accept that the information contained in this paragraph is brief to say the least. Nevertheless, it is not every case which requires an expansive description of what is alleged to have been done by a respondent. In my view the essentials of what is alleged against the respondent are contained within that paragraph, and in so far as the place in which the offence is said to have been committed is not contained within this sentence, it is clear from the contents of paragraph (b) of the warrant to which I have already referred, that it is alleged that the offence was committed within “Dutch territory”. In my view it is not necessary that a particular village, town or city be set forth. This particular point of objection is one of a type which was the subject matter of the judgment of Murray C.J. in Minister for Justice Equality and Law Reform v. Rodnov, (Unreported, Supreme Court, 1st June 2006), and where, even though the warrant did not conform exactly with that which was prescribed, “it was not a want of formality which affected in any way the substance or effect of the European arrest warrant”.
Warrant does not disclose any or any adequate circumstances or degree of participation in the offence by the respondent:
This point of objection is closely related to the previous one and to the fact that such a brief description of the circumstances of these events is included in paragraph (d) of the warrant. I am of the view that the essentials of the offence are contained in that paragraph, since it is clear from a reading of that sentence that the respondent can be under no misapprehension as to exactly what it is alleged against hire namely that he was involved in receiving 20 kg of heroin between 9 a.m. and 5:30 p.m. on the 9th November 2007. In my view nothing further is needed to be said in order to fulfil the requirements of that paragraph, and I have already addressed to the question arising from the fact that no “place” is contained within that sentence.
Warrant does not specify an), or any adequate nature and legal classification of the alleged offence:
Paragraph (e) of the warrant contains a heading “nature and legal classification of the offences and the applicable statutory provision/code:” Under that heading, a box has been ticked beside the words “illicit trafficking in narcotic drugs and psychotropic substances”. It is true that in this paragraph there is nothing to indicate the particular Dutch law which is said to be contravened by the offence in question. However that information is contained within paragraph (b) of the warrant, and I am satisfied that the fact that it is not repeated within paragraph (e) is insufficient to invalidate the warrant.
Insufficient detail as to the applicable statutory provisions/code:
In my view this is a repeat of the point of objection which I have dealt with in the previous paragraph and there is no need to reach any separate conclusion.
Warrant has not been signed by a judicial authority in the Netherlands:
In my view this is the only point of any substance which has been raised by the respondent by way of opposition to an order for his surrender is made. It is a fact that the copy of the warrant which was transmitted to the central authority here and which was endorsed by the High Court for execution on the 5th December 2007 contained only the printed name of the issuing judicial authority and not an original or a copy of any signature of that issuing judicial authority. The question which arises is whether that is a fatal defect.
I cannot recall any other case since the 1st January 2004 in which the warrant on which a respondent has been arrested was not either an original warrant duly signed by the issuing judicial authority, or a photocopy of the original warrant showing a copy of such signature. The present objection is therefore unusual. When this point of objection was raised, the Central Authority here sought further information in relation to the fact that the copy warrant on foot of which the respondent was arrested here did not appear to be signed by the issuing judicial authority. A letter has been received from the person whose name appears on the warrant as the issuing judicial authority namely “H.A.L.M. de Kort”. In that letter he states, inter alia:
“1. The European arrest warrant was issued by me, H.A.L.M. de Kort, public prosecutor al the district public prosecutor’s office in Rotterdam and, in my absence, signed by my colleague, W.D. de Boer, public prosecutor at the district public prosecutor’s office in Rotterdam ….
V. …. for reasons not clear to me, you are not in possession of the copy of the European arrest warrant signed by the public prosecution service. I will send you a copy and translation of this sign warrant and added to this fax message. In any case, the contents of the warrant which had not been signed, is identical to the contents of the signed warrant.”
As promised, a copy of the warrant signed by Mr de Boer was sent and has been produced to the Court. It follows that this court can be completely satisfied that a European arrest warrant had been signed by the issuing judicial authority prior to the transmission of an unsigned copy thereof to this jurisdiction, albeit one which contained the name of the issuing judicial authority only, and whose colleague appears to have actually signed it on behalf of the public prosecutor. The person who signed it is also a public prosecutor according to the information available. Counsel has submitted that this is not an insubstantial defect in the warrant and that it is fundamental because, in his submission, an unsigned warrant cannot be a warrant which is “a duly issued” and accordingly is not a warrant referred to in section 10 of the Act which refers to “where a judicial authority in an issuing state duly issues a European arrest warrant”. Counsel has referred also to the comments of the Chief Justice in Rodnov to which I have already referred and where in his judgment he stated:
“I would add that there is nonetheless a duty on the applicant in these proceedings to examine requests for surrender and all documents which may be associated with a request in order to ensure that they are complete and correct. It would be wholly unsatisfactory if such an obligation on an applicant was disregarded on the basis that the Court could be asked to look for further information pursuant to s. 20 of the Act ……….”
Counsel has submitted that the Central Authority is failing in its duty to ensure that the document on foot of which the respondent has been arrested is “complete and correct” and in particular, that it was signed.
In section 2 of the Act, a European arrest warrant is defined as “a warrant, order or decision of a judicial authority of a Member State, issued under such laws as give effect to the Framework Decision in that Member State, for the arrest and surrender by the State to that Member State of a person in respect of an offence committed or alleged to have been committed by him or her under the law of that Member State.”
As I have referred to already, section 10 of the Act refers to “where a judicial authority in an issuing state duly issues a European arrest warrant …”. I have already set out the provisions of section 11 of the Act in so far as it specifies the contents of a European arrest warrant.
It is worth referring also to the provisions of section 12(3) and (4) of the Act which include provisions for the transmission to the Central Authority of “facsimile copies of the European arrest warrant”.
Section 12(6) provides:
“(6) if the Central Authority in the State or the High Court is not satisfied that the facsimile copy of a document transmitted in accordance with the section corresponds to the document of which it purports to be a facsimile copy, he or she, or it, shall require the issuing judicial authority or the issuing state, as may be appropriate, to cause the original of the document or a true copy thereof to be transmitted to the Central Authority in the State, and shall agree with the issuing judicial authority or the issuing state, as may be appropriate, the manner in which such original or true copy shall he transmitted.”
Section 12(8) provides as follows:
“(8) in proceedings to which this Act applies, a document that purports to be –
(a) a European arrest warrant issued by a juridical authority in the issuing state.
(b) …
(c) …
(d) …
(e) a true copy of such a document,
shall be received in evidence without further proof.”
Finally, section 12(9) of the Act provides:
“(9) in proceedings to which this Act applies, a document that purports to be a facsimile copy or true copy, of the European arrest warrant, undertaking or translation referred to in subsection (8) shall, unless the country is shown, the evidence of the European arrest warrant, undertaking or translation concerned, as the case may be.”
I have set out to these provisions in order to demonstrate that less than strict formality may exist in the manner in which a European arrest warrant comes to the Central Authority in this jurisdiction. A faxed copy can be transmitted, and where a document which purports to be a European arrest warrant or a true copy of such a document is used and is before the court, it must be received in evidence without further proof. The essential requirement for the purpose of section 10 of the Act, and the Act generally, it is that before the respondent is arrested, a European arrest warrant must have been “issued” by a judicial authority in the issuing state. There is nothing in the Act which requires that if a respondent is arrested on foot of a document which purports to be a European arrest warrant or a copy thereof, that it bears a written signature or photo of a signature.
Section 13 of the Act provides that upon receipt of a European arrest warrant transmitted to it in accordance with section 12, the Central Authority must make an application to the High Court for its endorsement and it is specifically provided in that section that the document to be endorsed can be either “the European arrest warrant, or a facsimile copy or true copy thereof”. A facsimile copy of the European arrest warrant will be the original European arrest warrant in photocopied form and which is received in this jurisdiction having been transmitted “by fax”. On the assumption that the original European arrest warrant in the issuing state has been signed by a judicial authority, the faxed copy received here by the Central Authority will show the actual signature of the issuing judicial authority. That situation must be distinguished from the receipt of “a true copy”. The latter is a document which purports to be a true copy of the original European arrest warrant, and must be distinguished from a photo copy or faxed copy of the original warrant. In other words, “a true copy” is a copy of the original warrant containing all the words appearing in the original, and the text of both documents will be the same. In the present case, the document received here by the Central Authority and which was endorsed by the High Court for execution can be seen to be “a true copy” of the original European arrest warrant. It is not a photostatic copy of the original warrant since it is not a photograph of the original warrant as signed. But it is a copy in the sense that it contains everything that is contained in the original warrant. In my view there is no provision within the Act which prevents the respondent from being arrested on foot of “a true copy” of the original European arrest warrant issued in the issuing state, provided that the true copy has been endorsed by the High Court here for execution. On the contrary, the receipt of a true copy of the warrant is expressly envisaged as one possibility.
Strictly speaking, there was no necessity for a photo copy of the original European arrest warrant to be obtained by the Central Authority and for it to be produced both to the respondent and to this Court, since this Court is entitled to presume that if an issuing judicial authority in a state designated for the purposes of section 3 of the Act transmits to this jurisdiction a document which purports to be a copy of a European arrest warrant, this court is perfectly entitled to presume that a European arrest warrant has been duly issued in the issuing State.
For all these reasons, I am satisfied that the court is required to make the order of a surrender which is sought on this application and I will so order.
Lanigan -v- Governor of Cloverhill Prison & Ors
[2016] IECA 293 (19 October 2016)
U
Court of Appeal
Composition of Court:
Peart J., Irvine J., Mahon J.
Judgment by:
Peart J.
Status:
Approved
THE COURT OF APPEAL
(CIVIL)
Neutral Citation Number: [2016] IECA 293
RECORD NO: 2015 NO. 488
RECORD NO: 2015 NO. 527
PEART J.
IRVINE J.
MAHON J.
IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION AND IN THE MATTER OF SECTION 16(6)(b) OF THE EUROPEAN ARREST WARRANT ACTS 2003 AND 2012
BETWEEN:
FRANCIS LANIGAN
APPELLANT
– AND –
GOVERNOR OF CLOVERHILL PRISON, MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 19TH DAY OF OCTOBER 2016:
1. There are two appeals before this Court. The first is Mr Lanigan’s appeal against the refusal by Barrett J. on the 17th September 2015 of his application for release following an inquiry into the lawfulness of his detention under Article 40.4 of the Constitution. The second is his appeal against the refusal by Noonan J. on the 15th October 2015 to direct an inquiry under Ar. 40.4 of the Constitution into the lawfulness of the appellant’s detention, but on different grounds than the application heard by Barrett J. For that reason each appeal will be addressed separately in this judgment. I should mention perhaps that the respondents to each appeal are common, but were heard only on the first appeal, the second being an ex parte appeal.
Factual chronology
2. There is a lengthy and somewhat complicated factual background which it is necessary to summarise so that the context of the appellant’s applications for his release can be properly understood.
3. The authorities in Northern Ireland sought the surrender of the appellant on foot of a European arrest warrant so that he can be prosecuted there on charges of murder and possession of a firearm in May 1988. He was arrested here on foot of that warrant on the 16th January 2013. He was brought before the High Court in accordance with the provisions of the Act and was remanded from time to time in custody until the application for his surrender under s. 16 of the Act eventually came on for hearing before Ms. Justice Murphy on the 30th June 2014. Having completed that hearing on 4th July 2014 she reserved her judgment.
4. Several issues had been raised by the appellant in his Points of Objection filed prior to the hearing. For the moment it is necessary to refer to just one of them, namely his contention that if he was surrendered his life would be at risk, and that his surrender was therefore prohibited under s. 37 of the European Arrest Warrant Act, 2003 as amended (“the Act”). His fear was based on his previous experience in Northern Ireland, and his belief that if surrendered, the prison authorities would be unable to provide him with sufficient protection while in custody. The Minister on the other hand considered that his present fears are based on facts and events that occurred back in the 1980s, and could not form the basis for his current opposition to surrender. The appellant had filed an affidavit in which his fears were set forth, and a corroborating affidavit was also filed on his behalf.
5. In the lead up to the s. 16 hearing the High Court directed that any replying affidavit that the Minister might wish to file in answer to the appellant’s affidavit should be filed not later than the 24th April 2014. An important factor in the context of later events is that the Minister filed no such affidavit prior to that deadline. However, just before the hearing commenced it appears that some communications from the UK authorities had been received and were exhibited in an affidavit sworn by Hugh Dockery of the Chief State Solicitor’s Office. In addition, at the hearing counsel for the Minister sought to adduce into evidence a letter from the Northern Ireland Prison Service which purported to address the appellant’s concerns as to the risk to his life if surrendered. The appellant had objected to material being given to the Court in this informal and unsworn manner. On the final day of the hearing this letter was exhibited in an affidavit sworn by Mr. Davis of the Central Authority and provided to the Court in this way as an exhibit. Again, this manner of providing evidence to the Court in answer to the sworn evidence of the appellant was strenuously objected. These objections were not upheld. An application for leave to cross-examine Mr. Davis on his affidavit was refused, as was an application for discovery.
6. At that hearing, the appellant argued that in the absence of any affidavit being filed by the Minister his own averments as to the basis for his belief that his life would be at risk if surrendered to Northern Ireland were uncontroverted and therefore had to be accepted by the Court, thus mandating a refusal of the application for surrender on the basis that it was prohibited under s. 37 of the Act.
7. Having reserved her judgment at the conclusion of the hearing on the 4th July 2014, Murphy J. gave a preliminary ruling on the 17th November 2014 in which she referred to the non-adversarial nature of the hearing on an application for surrender, and stated that when considering, inter alia, whether or not surrender was prohibited under Part III of the Act (which includes s. 37) “the Court must be satisfied regardless of the urgings of the parties before making a decision to surrender”. In that respect she mentioned that no replying affidavit had been filed to contradict or in any way dispute the facts set out by the appellant in his grounding affidavit in support of his belief that his life would be put at risk by his surrender to Northern Ireland. She was not satisfied about the provenance of the letter that had been provided to the Court by way of exhibit to Mr Davis’s affidavit.
8. The High Court judge concluded, however, that because of the non-adversarial and ‘sui generis’ nature of the Courts’ inquiry on an application for surrender under the Act, and also because s. 20 of the Act specifically enables the Court of its own motion to seek such additional information as it felt necessary in order to perform its function, she would do so in this case because she was satisfied that in accordance with the test set out in MJELR v. Rettinger [2010] IEHC 206 the appellant had adduced sufficient evidence in affidavit form in relation to threats to his life “such as to put the Court on inquiry both as to the nature of any threats and the capacity of the Northern Ireland authorities to protect his right to life”. She went on to state that such information as was received did not have to be in the form of sworn evidence.
9. Murphy J. therefore exercised her power under s. 20 and directed the Minister, as the Central Authority under the Act, to seek information from the Northern Ireland authorities in relation to the matters raised by the appellant and as to the capacity of those authorities to adequately protect him against threats to his life while in custody there.
10. Following that preliminary ruling, the Central Authority sought and obtained information from those authorities. This was provided in the form of a letter from an Assistant Chief Constable, Crime Operations of the PSNI, which was produced to the Court on the 8th December 2014. The appellant did not challenge the content of that information on that date, but rather, confined his objection to its admissibility as evidence, being simply in the form of a letter handed into court, and on which nobody could be cross-examined. He had also issued a notice of motion returnable for the 8th December 2014 in which he sought discovery of any communications between the Central Authority and the authorities in the United Kingdom regarding possible answers to his contention that his life would be under threat if surrendered on foot of the warrant. As noted by the trial judge in her judgment, the respondent also sought a reference to the CJEU under Article 267 TFEU “of questions touching upon whether or not Ireland, in giving effect to the Framework Decision was obliged to depart from national rules of practice, procedure, evidence and conduct of trials having regard to Article 12 of the Framework Decision”. In addition a reference was sought on the proper interpretation of Article 17 of the Framework Decision setting out time limits in respect of the process for surrender. He also renewed an application for bail.
11. This motion was adjourned for one week to give the Minister an opportunity to consider and respond to it. On the 15th December 2014, bail was granted on certain terms which it would appear the appellant was unable to meet. Those terms were successfully appealed, and ultimately the respondent took up his bail in July 2015 as noted by the trial judge. As for the balance of the motion bearing upon the admissibility of the information sought and obtained under s. 20 of the Act, the trial judge rejected the appellant’s application, holding that the interpretation of the Act and the Framework Decision contended for by him was misconceived, and had already been the subject of her ruling on the 14th November 2014. The application for a reference to the CJEU on this issue was also rejected since the Court had already given its ruling.
12. However, the Court did accede to the application for a reference to the CJEU on the question of time limits for surrender under Art. 17 of the Framework Decision. That reference was made even though that issue was, in the opinion of the trial judge, being raised very late in the day, and had not been raised in Points of Objection or at the s. 16 hearing itself. However in her ruling on the 15th January 2015 the trial judge considered that it was clear that “our system cannot function within the time limits set out by Article 17” and that “the consequences of that inability are a matter of real substance, and the Court, independently of the parties, would wish to have the assistance of the Court of Justice in interpreting Article 17 as the outcome could affect the Court’s ultimate decision in this case”.
13. The judgment of the CJEU issued on the 16th July 2015. The terms of the judgment are summarised by the trial judge. There is no need to dwell upon it here, save to say that, as noted by the trial judge, it coincided very much with the view expressed by the Supreme Court in Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518,and that the obligation to surrender remained upon the requested state even after the time limits referred to in Art. 17 had passed.
14. Following the issue of that judgment by the CJEU the parties reconvened in the High Court on the 20th July 2015 for further submissions in relation to the information which had been provided in the form of a letter by the UK authorities pursuant to the request made under s. 20 of the Act already referred to, and which had been produced to the Court by the Minister on the 8th December 2014.
15. On the 20th July 2015 the appellant once again returned to his objection to the admissibility of this information in the form of a letter handed to the Court. A further objection was based on a submission that the Court enjoys no power under s. 20 to seek such information of its own motion without giving the respondent an opportunity to make submissions in that regard. The respondent submits that the appellant in fact had every opportunity to make any submissions he wished to make on that question, but did not do so. In any event, on the 2nd September 2015 the trial judge rejected his s. 20 submissions, saying that they were misconceived. She went on to consider the contents of the letter and to reach a conclusion that, applying the Rettinger test, “the Court is therefore satisfied that the Northern Ireland authorities can and will take all reasonable measures to safeguard the life of the respondent, if he is surrendered to their custody”.
16. This objection by the appellant to the admissibility of the letter obtained pursuant to the Court’s power under s. 20 of the Act assumes prominence in the context of the present appeals for reasons which will become apparent.
17. Having given judgment on the 2nd September 2015, the matter was put back until the 4th September 2015, when the Court made and perfected two orders. The first order of that date is the usual order for the surrender of the appellant to the requesting authorities, and for his committal to prison pending the carrying out of that order. Importantly in the context of the first appeal, this first order went on to direct as follows:-
“The Court further directs (a) that if the respondent is not surrendered before the expiration of the time for surrender under s. 16(3)A of the European Arrest Warrant Act 2003 as amended he is to be brought before the High Court again as soon as practicable after that expiration or (b) if it appears to the Central Authority that because of circumstances beyond the control of the state or the issuing state concerned that the respondent will not be surrendered on the expiration referred to at (a) he is to be brought before the High Court again before that expiration.”
18. The second order made on the 4th September 2015 was one refusing the appellant’s application for leave to appeal pursuant to s. 16(11) of the Act. Notwithstanding that leave to appeal was refused, the appellant nevertheless filed and served a notice of appeal. I can only presume that the basis on which this was done in the face of such refusal is because on 23rd July 2014 the appellant had commenced plenary proceedings (Record No. 2014 No. 6374P) in which he sought declarations of unconstitutionality in respect of certain provisions of the Act and its interpretation by the Court, including in respect of the limited appeal provision of s. 16(11), and in order to protect his position in the event that he should succeed in those proceedings. The filing of that uncertified appeal was met by an application by the Minister to this Court for an order striking out that appeal, or otherwise declared it to be null and void. Having heard the parties’ submissions, this Court acceded to the Minister’s application.
19. At this point I should refer in more detail to the plenary proceedings commenced by the appellant on the 23rd July 2014. The General Indorsement of Claim therein states the following:-
“THE PLAINTIFF’S CLAIM is that insofar as the European Arrest Act 2003, as amended, has introduced an inquisitorial and sui generis procedure that permits departure from fundamental norms of fair procedure, as particularised in paragraph 21 of the Statement of Claim herein, and also unfairly restricts the right of appeal, it is repugnant to the Constitution and contravenes the European Convention on Human Rights and the EU Charter on Fundamental Rights, and that the plaintiff’s surrender to the U.K. as sought in related proceedings (2013/1 EXT) should not be permitted.”
20. It will be recalled that the s. 16 hearing had concluded on the 4th July 2014 and that judgment had been reserved. During that hearing the appellant had objected to the manner in which unsworn material (i.e. the letter from the Northern Ireland authorities) was offered to the Court by the Minister. It will be recalled that in her preliminary ruling on the 17th November 2014 the trial judge had, inter alia, directed that further information be obtained from the Northern Ireland authorities since she was not satisfied as to the provenance of that letter. Given the nature of the relief sought in the plenary summons, it seems a reasonable inference that by the end of the s. 16 hearing on the 4th July 2014 the appellant at least suspected that the unsworn material to which objection had been taken would be relied upon by the trial judge in answer to his concerns as to the risk to his life if surrendered, and to which he had sworn on affidavit, and further, that he anticipated that if an order for surrender was made he might not be granted leave to appeal under s. 16(11) of the Act. However, as of the date on which that plenary summons was issued the events which might give him standing to pursue those proceedings had not actually occurred. Presumably it was for that reason that he did not serve those proceedings until December 2014, though a statement of claim had already been drafted for delivery.
21. As already noted, on the 1st December 2014 the further letter from the Northern Ireland Prison Service was produced to the Court, and the matter was put back to the 8th December 2014 for further argument. It was on the 1st December 2014 also that the appellant served his plenary summons on the Chief State Solicitor on behalf of the defendants. On the 12th December 2014 an amended statement of claim was delivered in order to bring matters more up to date, including by reference to the preliminary ruling given by the trial judge on the 17th November 2014 and the direction that further information be obtained for the Court by the Central Authority from the Northern Ireland Prison Service. However, whether at that point he had standing to seek a declaration of unconstitutionality in relation to the limited appeal provision in s. 16 (11) of the Act is surely debateable. In the event, it is not something upon which further comment is necessary, since from the 4th September 2015 he has been somebody adversely affected by s. 16(11) when leave to appeal was refused.
22. It was on the 8th December 2014 that the Court, inter alia, referred questions on the interpretation of Article 17 of the Framework Decision to the CJEU. It appears that on this date also the existence of the above plenary summons proceedings was brought to the attention of the trial judge. According to the appellant, she refused to deal with the issues raised therein in the EAW proceedings. How she could have been expected to deal with those proceedings within the EAW proceedings is not at all clear since pleadings would have to be exchanged in the normal way before those plenary proceedings could be heard. The answer from the CJEU was received in July 2015. The State defendants named in the plenary proceedings delivered their defence on the 17th July 2015. The appellant complains that despite his frequent urgings in the eight months from December 2014 to July 2015 the State defendants’ defence was not delivered until July 2015. He goes on to make the point that if the defendants had not delayed the delivery of their defence for so long, those plenary proceedings could have been determined before the trial judge gave judgment on the 2nd September 2015 and therefore before she made the order for surrender on the 4th September 2015. It is contended that if the appellant had succeeded in obtaining the reliefs which he sought in the plenary proceedings he would have obtained the following declarations which would have had a significant impact of the result of the s. 16 application itself and the right of appeal:-
(a) A declaration that in so far as the European Arrest Warrant Acts 2003 and 2012 impose an inquisitorial and sui generis procedure on the Courts of Justice, that is not expressly provided for therein or in the specific requirements of the Framework Decision, the same are unconstitutional;
(b) In so far as this Act and/or the Framework Decision permits outcomes such as are summarised in paras. 17-19 of this statement of claim, they are repugnant to the Constitution and/or contravene the EU Charter on Fundamental Rights;
(c) That part of s. 16(11) of this Act which in practice enables the High Court to veto plainly eligible appeals from itself, is unconstitutional and/or contravenes the EU Charter.
23. On the 4th September 2015 the appellant urged the trial judge not to make the order for surrender until the issues raised in the plenary proceedings had been determined in the High Court. However, she declined to postpone the making of the order, and furthermore refused leave to appeal. It was the refusal of the trial judge to postpone the making of her order until such time as the plenary proceedings were determined that led the appellant to consider that his detention thereafter was unlawful because “it was made in disregard of the constitutional objection”. This led in turn to the first application for an inquiry under Art. 40.4 of the Constitution into the lawfulness of his detention which was heard by Barrett J, on the 14th September 2015. In his judgment delivered on the 17th September 2015 Barrett J. rejected the application. I will come to the arguments and the judge’s reasons for refusing the application in due course. He also refused an application for bail pending appeal against his order, stating that it was more appropriate to apply to this Court for bail. It can be noted at this point that this Court granted bail on the 9th November 2015, and the appellant has been on bail ever since. The first appeal before this Court therefore is against that judgment and order of Barrett J. in which he found that the appellant’s detention on foot of the committal order of Murphy J. was in accordance with law, and dismissed the proceedings.
24. But before addressing the arguments on that first appeal to this Court, I need to advance the narrative to subsequent events in order to provide context for the second application for an inquiry under Art. 40.4 of the Constitution, which came before Noonan J. on the 15th October 2015 and which he refused to direct, and which is the subject of the second appeal herein.
25. Recalling that the surrender and committal orders were made by Murphy J. on 4th September 2015, it must now be noted that the Minister returned to the High Court on the 25th September 2015 (Butler J.) on notice to the appellant and made an application for a stay on the order for surrender, and a stay on the part of the order of Murphy J. which directed that if surrender was not effected within the period specified in s. 16(3)A of the Act the appellant should be brought back before the High Court. I have previously referred to the terms of that order at para. 17 above.
26. The reason for the Minister’s application for these stays was because the appellant had lodged an appeal against the order of Barrett J. refusing relief under Article 40.4 of the Constitution, and in the light of s. 16(6)(b) of the Act which prohibits surrender taking place while Article 40.4 proceedings are yet to be finally determined. It would appear that the Minister did not wish to have to bring the appellant back before the High Court as required by s. 16(4)(c) where the only reason why surrender was not taking place within the period specified in the Act was the appellant’s own action in launching an Article 40.4 inquiry, and upon its dismissal, lodging an appeal, as opposed to some circumstance outside the control of the Minister or the issuing state preventing surrender taking place within the prescribed period.
27. In any event, Butler J. granted the stays applied for by the Minister despite the appellant’s submission firstly that no stay on surrender was necessary given the terms of s. 16(6) of the Act, and secondly his objection to the removal of the protection he was entitled to under s. 16(4c) of the Act (as amended) by the granting of a stay on the operation of that provision which, he submitted, resulted in the indefinite postponement of the date for surrender until the first Article 40 proceedings were finally determined, and the removal of the obligation upon the Minister to bring the appellant back before the High Court where surrender did not happen within the period prescribed by the Act.
28. On the 15th October 2015 the appellant made a second application for an inquiry under Art. 40.4, alleging that the stay on the operation of s. 16 (4c) of the Act granted by Butler J. on the 25th September 2015 had the effect of denying him his statutory right to be brought back before the High Court in the event that the prescribed period for his surrender was exceeded, thus rendering his continued detention other than in accordance with law.
29. That ex parte application for an inquiry under Article 40.4 of the Constitution came before Noonan J. on the 15th October 2015. The written note of his ex tempore judgment shows that the argument put forward by the appellant was that the combined effect of the stay orders made by Butler J., and in particular the stay on the operation of s. 16(4)(c) of the Act, rendered his continuing detention pending his surrender unlawful. Noonan J. refused to direct such an inquiry. He considered that to do so would be to permit a collateral attack upon the orders of Butler J. made on the 25th September 2015, and that he had no jurisdiction to do so. He considered that the proper course was for the appellant to appeal the orders made by Butler J. The appellant appeals now against that ex parte refusal by Noonan J. to direct an inquiry. The orders of Butler J. are not themselves the subject if any appeal.
30. I believe that the above narrative is sufficient to provide the context for the two appeals that are before this Court, save to repeat that on the 9th November 2015 the appellant was granted bail by this Court pending the determination of these appeals, and has been on bail since that date.
The first appeal (488/2015) – against the judgment and order of Barrett J. dated 17th September 2015
31. In his Application for an Inquiry under Art. 40.4 of the Constitution which came before Barrett J. the appellant gave a brief summary of facts and events leading to the making of that order refusing his application for release from detention. It will be recalled that Murphy J. had rejected the appellant’s contention that the letters produced to the High Court by the Minister in response to her direction to the Central Authority under s. 20 of the Act were inadmissible, and that she did so, broadly speaking, on the basis that EAW proceedings were sui generis and that the usual rules as to proof and admissibility of evidence at a trial did not apply in such proceedings. She held that an application for surrender was neither a trial nor an adversarial process, and that the Court’s function on such an application is to ascertain whether the requirements of s. 16 of the Act have been complied with, including by being satisfied that surrender is not prohibited by Part III of the Act. She specifically held that under s. 20 of the Act the Court was entitled to seek and receive further information from the requesting authorities to enable it to carry out these functions, and furthermore that it was not essential that such information as was provided under the section should be in the form of an affidavit, provided that the Court could be satisfied as to the provenance and authenticity of the material/information obtained.
32. It will be recalled that in July 2014 the appellant had been concerned that the trial judge was intent on receiving information informally – in other words not proven in the normal way by affidavit or oral evidence which could be the subject of cross-examination – on the basis that EAW proceedings were sui generis and non-adversarial, and that he, presumably in anticipation of an adverse decision, had commenced plenary proceedings (not served until December 2014) in which he sought to challenge the constitutionality of such an informal manner of receiving ‘evidence’ and/or information to contradict what he had stated on affidavit and on which he had not been cross-examined.
33. It will be recalled also that the trial judge had been requested by the appellant to postpone making any order for surrender until such time as his plenary proceedings were heard and determined, and that he had complained that the only reason that the proceedings had not already been determined by the time the trial judge was deciding to make the order for surrender was that the State defendants had delayed unreasonably in the delivery of their defence until July 2015, following the response from the CJEU on the preliminary reference on the delay issue. The trial judge had rejected the submission that she should delay making her order until the plenary proceedings were determined. She proceeded to make the orders as already described, and also refused leave to appeal following an application being made in that regard.
34. It is no doubt the frustration of his desire to challenge the constitutionality of the informal procedures permitted by s. 20 of the Act, at least as interpreted by the trial judge, and her informal receipt of such information, prior to any surrender order being made that has provoked the appellant to avail of the Art. 40.4 procedure in another effort to try and get these issues determined by the Court, since under s. 16(6) of the Act he may not be surrendered until the Article 40 proceedings are finally determined.
35. As already described, the existence of Art. 40.4 proceedings prevents surrender taking place until such time as those proceedings are finally determined. The appellant has been open about the fact that the purpose of the application under Article 40.4 is in order to provide a period of time within which the plenary proceedings could be determined.
36. It was contended on the application for an inquiry that the failure to postpone the making of the surrender order until such time as the plenary proceedings were finally determined rendered the detention of the appellant on foot of the committal order made on the 4th September 2015 unconstitutional and therefore not in accordance with law. That submission appears as follows at para. 4 of the Grounds contained in the filed Application for Inquiry under Article 40.4:-
“4. As the pleadings in the plenary action show, several serious questions about their constitutionality arise with reference to the interpretations placed by the Judge on parts of the EAW Acts. Assuming for argument’s sake that the objections to them are well-founded, the applicant’s purported surrender before that case is heard and determined would be unconstitutional as well as being barred by inter alia section 37(1)(a) of the EAW Act. Accordingly, his present custody is unlawful/unconstitutional and in breach of E.U. law. Were he to be surrendered before the constitutional objections are finally determined, that might very well be deemed to render moot his constitutional case, and deprive him of the right of access to the courts protected by inter alia the E.U. Charter of Fundamental Rights.
37. As for the ground based upon the claim that the limited right of appeal provided for in s. 16(11) of the Act is unconstitutional, it is set forth in para. 5 of the Grounds as follows:-
“As for the refusal of the certificate to appeal the surrender order (unless itself unconstitutional), that may give rise to the somewhat bizarre situation where the High Court is debarred from ruling on a variety of contentious interpretations placed on the EAW Act and is called on to adjudicate on the constitutionality of these provisions, as so interpreted, notwithstanding the presumption of constitutionality and conforming interpretation obligation. In the constitutional case, inter alia reliance will be placed on the very reasons for refusing a certificate to demonstrate how flawed a procedure s. 16(11) is, contravening the nemo iudex principle.”
38. On the return of the application before Barrett J. on the 14th September 2014 the Governor of Cloverhill Prison certified that he held the appellant in custody pursuant to the warrant signed by Murphy J. dated 4th September 2014.
39. In his written judgment delivered on the 17th September 2015 Barrett J. commenced by stating that there was “nothing wrong on the face of the warrant” and that the reason that the appellant claimed that his detention was unlawful was based upon the judgment of Denham C.J. in F.X v. Clinical Director of the Central Mental Hospital [2014] IESC 1, namely on the basis that while there was nothing wrong on the face of the warrant itself, there has been a fundamental denial of justice such that the detention could not be considered to be in accordance with law. Barrett J. referred to the submission by the appellant that the trial judge’s interpretation of the Act and the Framework Decision as permitting an inquisitorial or non-adversarial type of procedure which departs from fair trial procedures otherwise applicable, as well as the restricted right of appeal under s. 16(11), rendered the Act unconstitutional, and therefore his detention unlawful.
40. In concluding that the detention of the appellant was in accordance with law, Barrett J. stated as follows at para. 7 of his judgment:-
“7. Mr Lanigan’s application is essentially flawed in its construction and substance. The essential flaw is this: all of his pleadings constitute a collateral challenge to, and an impermissible parallel attack upon, the conduct of the European Arrest Warrant proceedings, the jurisdiction of the High Court in those proceedings, and the judicial and procedural integrity of those proceedings. Shortly put, his application comprises an attempt to re-litigate much if not all that transpired before Murphy J. using the shield of Article 40 as a means of concealing the essential flaw in the foundation of the case. But even that shield is inadequate. In FX the Chief Justice offered as an example of a ‘fundamental denial of justice, or … fundamental flaw’ that would justify the High Court granting Article 40 relief in the context of a High Court order for detention, the situation presented in State (O) v. O’Brien: there a juvenile was sentenced to a term of imprisonment that was not open to the Central Criminal Court to impose. Nothing of that sort presents here: the shield does not work: the whole foundation of these proceedings is fatally flawed: and Mr Lanigan’s application must therefore fail.”
41. Barrett J. then proceeded to address in some detail the bases on which the appellant claimed that the procedures adopted by Murphy J. were unconstitutional. He referred to the judgment of Macken J. in MJELR v. Sliczynski [2008] IESC 73 where she referred to the ‘sui generis’ nature of EAW proceedings. He stated that the appellant had not identified any deficiency that contravenes constitutional or natural justice, and that in so far as he was arguing that the denial of a right to cross-examine on the material presented to the Court, the appellant ought to have raised the issue with the trial judge, and in so far as he did not, he was now estopped from doing so in the present proceedings under Article 40.4 of the Constitution.
42. As to the arguments based on the restricted right of appeal provided for in s. 16(11) of the Act, Barrett J. referred to the text of that section and stated at para. 15 of his judgment:-
“15. There is nothing unusual, never mind unconstitutional, about the just-quoted provision. Restrictions on the right of appeal are expressly contemplated by Article 34 of the Constitution. Section 16(11) of the Act is but a statutory manifestation of the licence allowed the Oireachtas by the People through the medium of Article 34. There is, to borrow from the phraseology of the Chief Justice in FX, no ‘fundamental denial of justice or a fundamental flaw’ effected by or pursuant to s. 16(11) which would justify the High Court granting a remedy in these Article 40 proceedings in respect of a detention order previously made by the High Court.”
43. He also concluded that there was no merit in the argument that what is provided for in s. 16(11) of the Act offends against the principle of ‘nemo iudex in causa sua’. The argument put forward was that in making a decision whether to permit an appeal, the trial judge was in effect deciding a matter in her own cause. This argument need not be dwelt upon. In my view, Barrett J. was correct to reject it. In my view it would be a totally unwarranted extension of that important principal of natural and constitutional justice. A decision under s. 16(11) of the Act cannot be characterised as being one that is made in any cause in which the judge has any personal or pecuniary interest. To put it mildly, it was not the appellant’s best point, and in my view ought to have been abandoned at an early stage, or not advanced at all.
44. Barrett J. noted also that the appellant was arguing that there had been a breach of the ‘audi alteram partem’ principle during the s. 16 hearing because the trial judge had, following her ‘preliminary ruling’ on the 17th November 2014, directed the Central Authority to seek and provide certain additional information without first hearing counsel for the respondent on whether such information should be sought. He rejected this argument in the following terms:-
“It is, with respect, breathtakingly wrong to contend that a judge who, pursuant to the obligations arising for the court under the Act, requests in open court that she or he be provided with further information (in sui generic proceedings where the Court is required to be satisfied of certain matters) has not listened to the other side. If the other side considers that it has not for some reason been listened to, then they should say so, but if they fail to do so or fail to succeed on the point it does not follow that a right arises to ventilate the point anew in Article 40 proceedings that have little substance and make less sense … .”.
45. He also rejected arguments based upon the refusal of the trial judge to make a reference under Art. 267 TFEU other than one in respect of the delay question on which she did make a reference. His reasons appear at para.18 of his judgment. There is no need to set them forth. I am satisfied that Barrett J. was correct to reject that argument out of hand. In my view it is simply unstateable as a ground for claiming that the detention of the respondent is unlawful.
46. On this appeal the appellant makes serious complaint about what Barrett J. went on to state in Part IX of his judgment commencing at para. 19. He complains that he went on to consider and reach conclusions upon the constitutionality of the Act itself, and that this was not part of what he was required to do on the Article 40 application. It is argued that by doing so he has in effect trespassed upon the very plenary proceedings which he is anxious to have heard before the surrender is implemented, and in which those issues arise. His counsel has urged upon this Court that the constitutional arguments underlining those plenary proceedings were not ventilated to any great extent, and certainly not as extensively as would have been the case had it been realised or anticipated that Barrett J. was intending to reach those conclusions. He fears that those conclusions will now be used by the State defendants in the plenary proceedings in order to contend that the issues are res judicata and may not re-opened, thereby further frustrating his wish to have the so-called constitutional issues determined.
47. The question of whether Barrett J. went further than was necessary on an Article 40 application by expressing views on the substantive constitutional issues raised by the appellant in his plenary proceedings, so that those issues maybe now res judicata, is not something which this Court needs to address on this appeal. That question will be something to be debated if and when those plenary proceedings come on for hearing. This Court does not have the transcript of the hearing before Barrett J. but the State respondents’ submissions have informed the Court that the hearing took place over a full day, and that it is clear from the judgment of Barrett J. that not only did the appellant have the opportunity to make the case that was stated in his Application for an Inquiry, but was permitted to expand upon the grounds set forth therein despite the objections of the State. It would seem that every latitude was given to the appellant to make his case on whatever basis he wished to put forward.
48. Given that latitude, it seems likely that the appellant took the opportunity to advance the constitutional arguments subtending the plenary proceedings as part of the arguments supporting his case that his detention was unlawful, and that he should be released. Perhaps the fact that the trial judge expressed views on the merits of that constitutional case is because those merits were part of the argument made before him. In that sense, the appellant has perhaps been hoisted by a petard of his own concoction, given that there was nothing on the face of the warrant itself that would render his detention unlawful, and that the whole basis of his claim under Article 40.4 was that there were outstanding constitutional claims to be determined before surrender should take place. It would be strange in such circumstances if the merits of the claims in the plenary summons were not debated and urged upon the Court as a reason why the appellant should be released.
49. Seen in this way, it is difficult to escape the conclusion that in this case the use of Article 40.4 of the Constitution was simply a device to delay surrender, given the effect of s. 16(6) of the Act, and that in truth the appellant had no case to legitimately make that his detention was not in accordance with law. In fact para. 6 of his own written submissions, repeated in oral submissions, makes this clear because when setting forth what orders were being sought from the Court on the Art. 40.4 application, the only order stated to be sought by the appellant, apart from a reference under Article 267 TFEU, is couched as follows:-
“6. This Court should direct that the plenary action be heard and determined with reasonable expedition, release Mr Lanigan on bail and adjourn this Article 40.4 [application] until the plenary action is finally decided”.
50. Delay was explicitly stated to be the purpose of the Article 40.4 application – perhaps not for its own sake, but certainly so that the plenary proceedings could be heard and determined prior to surrender.
51. It is clear from the authorities that the Court is constrained on an Article 40.4 application to determining the lawfulness of detention, and if it is found to be unlawful, ordering the release the person detained. I accept that in Art. 40.4 applications brought in the context of detention under the Mental Health Act, 2001 there have been cases where, even though the detention of the patient has been found to be not in accordance with law, the Court exceptionally in that context has adjourned the making of an order for release so that, in the best interests if the patient, some sensible and practicable arrangements can be put in place so that the making of such an order would be unnecessary. But that is an exceptional jurisdiction, and cannot avail a person in the position of this appellant who wishes to delay the process of surrender while other proceedings are brought to finality.
52. One can understand the appellant’s wish to ventilate all his claims as to the unconstitutionality of certain aspects of the Act before any surrender occurs. But in my view Art. 40 must not become a mechanism whereby a person in respect of whom an order for surrender has been made, and who has been refused leave to appeal, may yet seek to circumvent those events by throwing up arguments, not for the purpose of seeking to impugn the lawfulness of the detention ordered, but rather to try and gain a space in which to ventilate points either not argued on the s. 16 application, or on which his arguments failed. I fear that in this case the appellant has grasped at s. 16(6) of the Act by invoking Article 40.4 but on grounds which could never truly speak to the unlawfulness of detention. I hesitate to describe such tactics as an abuse of process, but it certainly has all the appearance of seizing upon Art. 40 as a life raft to assist a collateral purpose, but upon grounds that have little to say in relation to the lawfulness of detention. I believe that Barrett J. was correct to reject the arguments put forward and to dismiss the application made under Article 40.4 of the Constitution.
53. I should also refer to the relief sought by the respondent at para.7 of his written submissions to the High Court on the Art. 40.4 application. Therein he sought the following:-
“7. This Court also should refer questions under Article 267 to the C.J.E.U. being:-
Those that Murphy J. refused to refer and
Does the Mamatkulov case qualification to Art.6 of the European Convention equally apply to Art. 47 of the E.U. Charter and proceedings under the EAW Act (Murphy J. held ‘No’)”
54. In my view those questions do not arise in the present proceedings. If they arise at all, they do so in the EAW proceedings, and there is no reason therefore why this Court would refer them.
The second appeal (527/2015) – against the judgment and order of Noonan J. dated 15th October 2015
55. At paras. 23-26 above, I have set forth the events which led to the ex parte application to Noonan J. on the 15th October 2015 to direct an inquiry under Art. 40.4 of the Constitution, which he refused. It will be recalled that following the lodgment of an appeal against the judgment and order of Barrett J. the Minister made an application to the High Court (Butler J.) on notice to the appellant for a stay on the order of surrender (even though s. 16(6) of the Act specifically provides that the respondent may not be surrendered while Article 40 proceedings are extant), and sought also a stay on that part of Murphy J’s order of the 4th September 2015 that directed that he be brought back before the High Court if he had not been surrendered within the time prescribed by the Act (i.e. 25 days following the making of the order).
56. The requirement that the person whose surrender has been ordered be brought back before the High Court if not surrendered within the prescribed time is a statutory obligation created by s. 16 (4)(c) of the Act, as amended. The question arises in these circumstances as to whether that statutory obligation can be the subject of a stay by the Court, particularly given its clear purpose to ensure that there is some judicial oversight over the length that a person might remain in detention pending surrender actually taking place, and whether detention beyond that 25 day period, absent that statutory safeguard, is arguably at least detention that is not in accordance with law. It will be recalled also that an application for bail was refused by Barrett J. following the delivery of his judgment, on the basis that such an application should be made to this Court in the event that an appeal against his order was lodged. In the event, this Court has granted bail following an application in that regard. Nevertheless the appellant maintains that his appeal is not moot, and that he is entitled to have an appeal heard in respect of the refusal by Noonan J. to direct an inquiry under Art. 40.4 of the Constitution on foot of his ex parte application in that regard on the 15th October 2015 – which, I should add, was prior to his being granted bail by this Court.
57. The affidavit of the appellant’s solicitor which grounded the ex parte application set forth a brief reference to the surrender order, the refusal of the first Article 40.4 application to Barrett J., the fact that it was under appeal, and the subsequent stay application successfully made to Butler J. on the 25th September 2015. The deponent, Padraig O’Donovan, solicitor, expressed some surprise on his own part and on the part of counsel that the State parties sought such a stay on the order for surrender, given the fact that s. 16(6) itself provides that surrender cannot take place while Art. 40 proceedings are not finally determined. He went on to describe the advance notice he received of the proposed application for a stay on the surrender order, and to state that it was only just prior to the application being made to Butler J. that his counsel was handed a draft of the order proposed, and saw for the first time that a second stay was being sought, namely on the statutory requirement in s. 16(4)(c) of the Act that the appellant be brought back before the High Court where surrender was not effected during the prescribed period, as had been ordered.
58. Mr O’Donovan averred that he was advised that the effect of the second part of the stay was to remove a statutory protection in relation to the appellant’s continued detention beyond the prescribed period, rendering his continuing and indefinite detention unlawful where the protection of judicial supervision had been removed. It was argued on the application that this issue raised an arguable issue as to the lawfulness of the respondent’s continuing detention, so that an inquiry was mandated.
59. Being an ex parte application for an inquiry under Article 40.4 of the Constitution, the detainer was not a party to the application, and therefore was not a party to this ex parte appeal.
60. Having heard this ex parte application Noonan J. gave an ex tempore decision refusing the application for an inquiry stating, inter alia, the following when reaching his conclusion:-
“5. …it is argued on behalf of the applicant, the combined effect of these orders and in particular the order of Mr Justice Butler is to disapply the application of s. 16 of the EAW Act with the consequence that, as Dr Forde submits, the applicant’s detention is currently rendered unlawful. As a result this application has been moved before me today.
6. In my view the effect of this application is to invite one judge of the High Court to review the order of another, and effectively declare it invalid. I am satisfied that this court has no jurisdiction to embark on this enquiry or in effect to collaterally review in some shape or form the order that has already been made by Mr Justice Butler.
7. It seems to me that the proper course in this case for the applicant, if the consequences he allege arise from the order, is for him to appeal that order of Mr Justice Butler that he alleges is invalid. However, I am satisfied that I cannot entertain this application in circumstances that have been put before me, and for these reasons I am dismissing this application.”
61. At this point I should just refer to what I believe would be the uncontroversial background to the amendment of s. 16 which was effected by the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 (“the Act of 2012”). As originally enacted, s. 16(5) of the Act of 2003 provided:-
“(5) Subject to subsection (6) and section 18, a person to whom an order for the time being in force under this section applies shall be surrendered to the issuing state not later than 10 days after:-
(a) the expiration of the period specified in subsection (3), or
(b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state.” [emphasis added]
62. However, by s. 10 of the Act of 2012, certain amendments were made to s. 16, including by the substitution of new provisions for subsections (3) to (13) as originally enacted. For present purposes, it is the amendments affecting the old subsection (5) that are relevant. New subsections (3) and (3A) provide for the same period within which the respondent must be surrendered as were provided for in the old subsection (5). However, importantly for present purposes it is provided in the new subsection (4)(c) that where a surrender order is made the High Court “shall (unless it orders postponement under s. 18 of the Act):-
(a) …,
(b) …,
(c) direct that the person be brought before the High Court:-
(i) if he or she is not surrendered before the expiration of the time for surrender under subsection (3A), as soon as practicable after that expiration, or
(ii) if it appears to the Central Authority in the State that, because of circumstances beyond the control of the State or the issuing state concerned, that person will not be surrendered on the expiration referred to in subparagraph (i), before that expiration.
63. The Act of 2012 went on to enact a new subsection (5) mandating what the High Court must do when such a person is brought back before the Court pursuant to an order under subsection (4)(c), as follows:-
(5) Where a person is brought before the High Court pursuant to subsection (4)(c), the High Court shall:-
(a) if satisfied that, because of circumstances beyond the control of the State or the issuing state concerned, the person was not surrendered within the time for surrender under subsection (3A) or, as the case may be, will not be so surrendered :-
(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and
(ii) order that the person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) for a period not exceeding 10 days after the date fixed under subparagraph (i), pending the surrender, and
(b) in any other case, order that the person be discharged.”
64. My own view is that this new provision was not intended to apply in a situation where the only reason why surrender did not take place within the prescribed timeframe was because the person to be surrendered commenced proceedings under Art. 40.4 prior to surrender, resulting in his surrender being prohibited until such time as those proceedings are concluded. However, the wording of the subsection as enacted, and as read literally, may be read as not excluding the Article 40 scenario. It is possibly an infelicity in the drafting of the new provision that it does not make that clear in some way.
65. Prior to the enactment of these new provisions there had been situations arising unexpectedly following an order for surrender where, for practical or logistical reasons, the surrender could not take place within the prescribed time. For example, it might have been impossible for the issuing state to arrange air transport within the time permitted, or some form of industrial action by air traffic controllers meant that a planned flight could not take place. I can recall a particular occasion in April 2010 when an unpronounceable Icelandic volcano violently erupted causing a dust cloud of such intensity over parts of Europe as to cause many flights to be cancelled or delayed, and that this caused problems for a number of surrenders, and that new dates for surrender had to be put in place and agreed under the provisions of old subsection (5). The problem with that subsection was that there was nothing to indicate within what period the new date for surrender had to occur, and that in turn had implications for the duration of the respondent’s detention, and perhaps its lawfulness. As far as the new date was concerned, it could strictly speaking be any date in the future under old subsection (5) which provided for “such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state”. In such circumstances there was no judicial control over the length of detention which might occur before surrender took place.
66. In my view it was this lacuna that the new provisions were in all likelihood intended to address, so that the Court was given a measure of control over the length of continuing detention in the event that circumstances occurred which were beyond the control of the State and the issuing state rendering it impossible to meet the timeframe otherwise prescribed under the Act.
67. By contrast, where the person who is subject to a surrender and committal order commences Article 40 proceedings, as is his right, s.16(6) of the Act, as originally enacted, provided simply that he/she may not be surrendered while those proceedings are pending. That provision is retained under the amendments made under the 2012 Act. The Court therefore retains control over the respondent’s period in detention, firstly because the Article 40.4 proceedings are before the High Court and will be heard with as much expedition as practicable in all the circumstances, and of course the High Court retains its inherent jurisdiction to grant bail to the respondent while those proceedings remain pending.
68. What I have stated in paras. 63-66 should not be taken as a concluded view on my part. It is more in the nature of discussion, as no party has had the opportunity to present argument on the interpretation of the new provisions, and the interplay between new s. 16(4) and (5) of the Act and what was always provided for in s. 16(6) of the Act. The issue on this appeal is simply whether on the ex parte application for an inquiry under Article 40.4 of the Constitution the appellant had raised an arguable issue sufficient at a minimum to require the Court to direct an inquiry into the lawfulness of his detention, given the fact that the High Court (Butler J.), by granting the stay on the order of Murphy J. made as required under new subsection (4)(c) of the Act, had removed a protection to which the appellant was entitled under the Act in circumstances where the prescribed time for surrender had passed, and where the time which he might spend in custody while his Article 40 proceedings were being heard and finally determined was thereafter indefinite and likely to be of significant length.
69. I have explored above what I perceive may have been the purpose of the new provisions in s. 16 as enacted by s. 10 of the 2012 Act, and I have referred to an issue as to the possible interplay between new s. 16(4) and (5) and what was always provided for in s. 16(6) of the Act. I express no concluded view in that regard. It would require the parties to have the opportunity to address the Court on whether the new subsections (4) and (5) must be read as applying to an Art. 40.4 application context as well as the more prosaic reasons (some examples of which I have suggested) as to why in any particular case it may not be possible to meet the prescribed deadline for surrender to take place.
70. In my view the point being raised was sufficient to require the Court to direct an inquiry in order to satisfy itself as to whether or not in these circumstances the ongoing detention was in accordance with law, given the removal of the protection claimed to exist for the benefit of the respondent under s. 16 (4) and (5) as substituted. I would not agree with the trial judge that the High Court lacked jurisdiction to so inquire for the reasons he stated. Detention is detention, and it must be in accordance with law. If it is not, the High Court is required by Article 40.4 of the Constitution to release the applicant.
71. I would allow this appeal and remit the matter to the High Court for an inquiry into the lawfulness of the detention in the light of the stay granted by Butler J.
72. I would add the following remarks. Firstly, further consideration should in my view be given by the Minister to the need to make an application at all for a stay on an order for surrender when an Article 40.4 application is the reason why surrender cannot occur during the prescribed period, given the express terms of s. 16(6) of the Act. The Act itself stays surrender. Secondly, although this appeal has been allowed, leading to an inquiry now into the lawfulness of detention, notwithstanding that the appellant is on bail, the Minister might consider returning to the High Court to have the stay on the order made under s. 16(4)(c) lifted, thereby assuaging the appellant’s concern that he has lost a protection which he contends, rightly or wrongly, is for his benefit while his Article 40 proceedings are pending. That argument was made in the context of his then detention. He is now on bail. I am not to be taken as agreeing with the appellant on this question. I express no concluded view. But I cannot see what disadvantage there can be by applying to have the stay lifted, and for the Court, on notice to the appellant of course, to be informed of the reason for the failure to surrender him within the prescribed time (i.e. the existence of the Article 40.4 proceedings) and so that the matter might be re-entered at the conclusion of the Article 40 proceedings for the purpose of fixing a new date for surrender with the agreement of the issuing state as provided for in new s. 16(5) of the Act. Clearly no new date can be sensibly fixed until the date of final determination of the Article 40 proceedings is known. There is an attractive pragmatism in such an approach, which might even render moot the inquiry now being directed, and avoid further unnecessary litigation on the point. These are only suggestions as to a possible way forward. I have not heard the parties on them, and there is no need to. But they might at least be considered by the parties.
Minister for Justice and Equality v J.A.T. No. 2
294/14 (WLIE 1)
Supreme Court
28 April 2016
unreported
[2016] IESC 17/1
O’Donnell J
April 28, 2016
JUDGMENT
1 I gratefully adopt the facts set out in the judgment delivered by the Chief Justice today and will not repeat them here. I recognise that all of the factors identified by the Chief Justice are matters which must evoke concern, dissatisfaction and some degree of sympathy. These are, unfortunately, emotions which are not infrequently encountered in these courts. Persons accused of crime may often themselves come from circumstances, or have suffered experiences, which can excite sympathy. The criminal process, particularly involving cooperation between jurisdictions, can be frustratingly inefficient, slow, and opaque. I was myself doubtful, however, that even cumulatively, the matters relied on by the appellant were sufficient to justify a refusal of surrender in this case. But in the light of the views of my colleagues, and the judgment of the Chief Justice, I do not dissent from the Order proposed. I would, however, emphasise that this is a rare, and indeed exceptional case. While exceptionality is not in itself a test, it can be a useful description, and it is, in my view, only cases which can truly be so described that will be those rare cases in which it may be said that surrender would offend due process and interfere with the rights of the appellant to such an extent that it must be refused. It is, however, necessary to explain both the factors that apply and the weight to be given to them which lead to that conclusion. I do not think that we should take refuge in the observation that all cases depend on their own facts; that would mean that, in theory, all cases raising any arguable issues would have to be the subject of appeal, with all the delay, inconsistency and unpredictability that entails. While little assistance is to be obtained from the submissions in this case, I do think that this Court can, and should, identify the principles involved, even if at the margin, courts and judges may on occasion differ as to the outcome of the application of those principles.
2 While this case is multi-factorial, it is likely that in the future, some or more of the components identified in the case will be present and relied on, perhaps together with other factors, as justifying a refusal to surrender. It is necessary to keep in mind that the Framework Decision is meant to facilitate a speedy process, and unless grounds for refusal are specified with clarity, and the weight accorded to them is identified, the process can become frustrated by a proliferation of claims to resist or delay surrender on amorphous allegations requiring close analysis of the facts. It would be foolish not to recognise that there may be circumstances where the fact that an argument can be raised, even if the prospects of success are remote, may be enough for an applicant with his or her own reason to seek delay. By the same token, it is important to recognise that delay is contrary to the underlying objective of the Framework Decision, which is to seek speedy surrender between Member States. It is noteworthy that in the immediate aftermath of the decision of the United Kingdom in HH v. Deputy Prosecutor of the Italian Republic, Genoa [2012] U.K.S.C. 25, [2013] 1 A.C. 338 referred to by the Chief Justice, there was an immediate and significant increase in claims seeking to resist surrender on the grounds that such surrender would breach the rights guaranteed to an individual and his or her family members by Article 8 of the European Convention on Human Rights and Fundamental Freedoms. It was estimated in a recent case that in the United Kingdom, Article 8 was relied on in more than 120 cases per month. As a result, the Divisional Court of England and Wales sought to establish a more structured and rigorous approach to such claims (see Polish Judicial Authority v. Celinski [2015] E.W.H.C. 1274). It is not, perhaps, appropriate to address such matters in any further detail here, since they were not the subject of argument, but I do consider it desirable to explain with some precision the view I take of the components relied on in this case.
3 In the interests of clarity in future cases, I respectfully suggest that phrases such as “de facto abuse” or “harassment and oppression”, if they are to be invoked in argument, require greater refinement and precision. Something is either an abuse of process, or it is not. Harassment and oppression are concepts drawn from the case law derived from Henderson v. Henderson (1843) 3 Hare 100, 67 E.R. 313, and their use risks blurring two strands of case law that deserve to be distinguished. I also, respectfully, doubt that it is appropriate or useful to introduce a concept of “duty of care” on the part of requesting authorities or the Irish authorities. If a warrant is defective, that is enough, and it is superfluous at best, and possibly misleading at worst, to address the question of the care used or the reason for the defect. But the idea that a duty of care is owed to subjects of a warrant might give rise to a deflection of attention from the warrant to the efficiency of the requesting or executing authorities. It is important that courts should be astute to detect and prevent improper or mala fide conduct, but it is equally important that a valuable jurisdiction is not diluted by allowing the legal test to spread into negligence and to become the familiar search for something that can be described as careless. Furthermore, caution should be exercised in addressing the law of European Arrest Warrants in the light of law surrounding previous bilateral or even multilateral extradition treaties. The Framework Decision, with all of its many difficulties, is a matter of the law of the European Union, and was intended to provide a new and streamlined process for surrender between member states of the Union, and to that extent represented a significant departure from the earlier approach. While the legal background to a provision is important, it is also necessary to recognise that the purpose of any new provision is to effect a change, sometimes radical, from the existing law, and it is necessary to give full effect to that change once identified.
4 An important starting point, in my view, is that considerable weight is to be given to the public interest in ensuring that persons charged with offences face trial. There is a constant and weighty interest in surrender under an EAW and extradition under a bilateral or multilateral treaty. People accused of crimes should be brought to trial. That is a fundamental component of the administration of justice in a domestic setting, and the conclusion of an extradition agreement or the binding provisions of the law of the European Union means that there is a corresponding public interest in ensuring that persons accused of crimes, in other member states or in states with whom Ireland has entered into an extradition agreement, are brought to trial also. There is an important and weighty interest in ensuring that Ireland honours its treaty obligations, and if anything, a greater interest and value in ensuring performance of those obligations entailed by membership of the European Union. All agreements are based on broad reciprocity and there is, therefore, a further interest and benefit in securing the return to Ireland for trial of persons accused of crimes, or the return of sentenced offenders. There is also a corresponding public interest in avoiding one country becoming, even involuntarily, a haven for persons seeking to evade trial in other countries. There is no option in this jurisdiction for a court, in most cases, to direct a trial of the offence here (whatever the practical difficulties involved). This means that the decision to refuse to surrender in individual cases will provide a form of limited immunity to a person so long as they remain in this jurisdiction. The question is, therefore, not where a person should be tried, but whether they should be tried at all so long as they remain in Ireland. There is, therefore, a closer analogy in this regard to be drawn between the analysis of claims involved in domestic criminal proceedings and surrender/extradition than there is between surrender and deportation, for example. Trial and, if appropriate, sentence in this jurisdiction may always involve an interference with family and other relationships, and it is necessary, therefore, to assess the additional interference occasioned by trial abroad in circumstances where it may also be appropriate to take account of the fact that arrangements exist to facilitate prisoners who wish to serve their sentences in their home state. I think it is fair to say that it is only if some quite compelling feature, or combination of features, is present that it would be appropriate to refuse surrender on grounds of due process or interference with rights. It is important that courts should also rigorously scrutinise the factual basis for any such claims against that background.
5 Here, three factors are asserted as cumulatively leading to an order refusing surrender.
6 The first factor is the undoubted fact that the first warrant was found to be defective by order of this Court, and this is a repeat application. It is important, in my view, to maintain, however, the clear distinction between the principles of res judicata and the closely associated principles established in Henderson v. Henderson and A.A. v. The Medical Council [2003] 4 I.R. 302, on the one hand, and the law relating to warrants on the other. Henderson v Henderson deals with the question of a full inter partes hearing of civil proceedings under a process designed to ensure that the true issues between the parties are identified (if necessary by amendment of pleadings) and determined. The position in relation to warrants is fundamentally different. Importantly, there is no process of amendment. The issue is the validity of the warrant as issued. Strictly speaking, when a fresh warrant is issued, its validity becomes a separate issue. It is not res judicata because the issue under the new warrant has not been decided. Technically (and this is a technical issue) the issue now is the validity of the new warrant. Nor is it appropriate to try to apply the concepts of bringing all claims at the same time. In the case of warrants, that would amount to saying that only one warrant could ever be issued. For these reasons and more, it has always been held that the fact that an initial warrant has been found to be defective does not preclude the issuance of a further warrant. (See ex tempore judgment of Denham J. in Bolger v. O’Toole (Unreported, Supreme Court, 2nd December, 2002) and ex tempore judgment of Keane C.J. in Attorney General v.Gibson, (Unreported, Supreme Court, 10th of June, 2004). Indeed, it could be said that this is part and parcel of the law which also requires that warrants should be scrutinised with rigour. For my part, therefore, I do not think that concepts such as oppression and harassment by repeated application, which employs part of the language used in Henderson v. Henderson, should be used in dealing with warrant issues. There may be circumstances in which the repeated issuance of warrants may be prohibited, either because of bad faith, the seeking of tactical advantage, or otherwise. It may also be appropriate to consider the impact on an individual of repeated applications. But those situations require to be analysed in the context of the law relating to warrants, and not of some hybrid version incorporating the principle in Henderson v. Henderson.
7 Counsel in this case argued strongly that an important feature of this case was that there was a duty on the part of the authorities of both the requesting and executing states to explain how it was that the error had occurred in relation to the first warrant. It was, he contended, insufficient merely to issue a further warrant which was said to have addressed the defects identified in this case in Minister for Justice, Equality and Law Reform v. J.A.T.(No. 1) [2010] I.E.S.C. 61. I am wholly unconvinced by this contention. If explanation was ever required, it was more naturally required in the context of the proceedings in which the error was identified. It would, I think, border on the perverse to refuse surrender now on foot of what is ex hypothesi a perfectly valid warrant because the authorities had not given a more elaborate explanation of an error made in an earlier warrant, which itself had been found to be defective by a final decision of this Court (at least when there is no suggestion of bad faith or concealment calling for explanation) particularly when, until now, it had never been suggested that such an explanation was a necessary condition of the execution of a second warrant. In any event, there is little mystery about the events here. An error was made in dealing with a relatively complex area of law, both in itself and in relation to the operation of the European Arrest Warrant system, and both the substantive and procedural law of Ireland. That misunderstanding was corrected, albeit at some cost in terms of expense and time. But if this Court was to hold that surrender should not be made on foot of the second warrant because the error in the first warrant had not been sufficiently explained to the Court’s satisfaction, it would be coming close to the proposition that a second warrant could not be issued, or could only be issued and executed at the discretion of the second court.
8 I am prepared to accept, for the purposes of this argument, that there are circumstances where a second or subsequent warrant may be issued for tactical reasons which may accordingly amount to an abuse of process. Certainly, obiter dicta in Turin v Barone [2010] E.W.H.C. 3004 might support this approach. I also accept that while abuse of process normally involves an improper motive (and certainly can be more readily identified when that is present) it is not necessarily confined to such circumstances. It may be that a situation can be arrived at in an individual case, perhaps without culpability and certainly without improper motive, but where it can nevertheless be said that to permit proceedings to continue would be an abuse of the Court’s process in the sense that it would no longer be the administration of justice. I also do not rule out the possibility that there may be a case where the facts are so extraordinary that they call for explanation. However, in the present context, it must be kept in mind that the issue for an Irish court, in respect of which it is required to administer justice, relates principally to the surrender, and it is the process in relation to that which must be the primary focus of any such inquiry. I would not, therefore, have considered that the issuance of a second warrant in this case amounts to, or even comes close to being an abuse of the process. I do not think that if the second warrant had been issued reasonably promptly, and in relation to a person of full health, and with less forceful claims under Article 8, that it would be considered that the issuance of a second warrant after refusal of surrender on an earlier warrant would, by itself, be a ground for refusal of surrender.
Delay and Lapse of Time
9 The fact that the crimes alleged here date back to 1997 is more properly to be considered in the context of lapse of time rather than delay. There is, as I understand it, no suggestion that the United Kingdom authorities ought to have detected the alleged crime any earlier. In any event, such an allegation is one which a court should be extremely slow to entertain. The relative antiquity of the offences, however, is relevant in considering those elements of delay in the issuance of the first warrant, and more importantly, the second warrant, and its execution in this jurisdiction. I do think that these delays are factors in the Court’s assessment, but, regrettable and worthy of criticism as they are, in my view they fall far short, by themselves, of establishing any abuse of process or grounds for refusal of surrender. Nor do they do so when taken in conjunction with the fact that a second warrant was issued.
Article 8
10 It seems clear that the respondent is in a very difficult health situation, although the Court might expect a more detailed expert report. Again, however, this matter must not be tested against some generalised consideration of personal sympathy, but rather as to whether the circumstances are such which render it unjust to surrender the respondent. It will almost always be the case that considerations such as these, which undoubtedly evoke some sympathy, would never, in themselves, be remotely a ground for refusing surrender any more than they would be a ground for prohibiting a trial in this jurisdiction. The respondent, however, is also the primary, and effectively the sole caregiver for his son, who in turn is in a situation where that care is particularly important. For the reasons set out in the judgment of the Chief Justice, it seems clear that he will undoubtedly suffer very severely if the appellant is surrendered for trial. He is not a person against whom there is any accusation of wrongdoing. The impact on the appellant’s son is, for me, an important consideration. While the appellant’s son is not a child, he is, in my view, a member of the appellant’s family for the purposes both of Article 8 of the ECHR and the Constitution. Nevertheless, I agree with the learned trial judge in this case that these considerations would, themselves, not be enough to establish a ground for refusing surrender if the first warrant had been in a proper form and these matters, which were present at that time, had been the sole ground for resisting surrender. I do not, however, agree that the fact that neither the respondent’s health issues nor his son’s condition has deteriorated in the intervening time means that this consideration is now irrelevant. It seems to me to be relevant that this is a second application, and moreover, that there has been avoidable delay on the part of the authorities in both jurisdictions in the preparation, submission, and execution of the second warrant, even though the evidence of the respondent’s circumstances, and those of his son, had been adduced in the first European Arrest Warrant proceedings. These factors – repeat application, lapse of time, delay, impact on the appellant’s son, and knowledge on the part of the requesting and executing authorities of those factors – when weighed cumulatively, are powerful. Even then, and without undervaluing the offences alleged here, it is open to doubt that these matters would be sufficient to prevent surrender for very serious crimes of violence. This illustrates that the decision in this case is exceptional, and even then close to the margin.
11 In any future case, where all or any of the above factors may be relied on, it would not, in my view, be necessary to carry out any elaborate factual analysis or weighing of matters unless it is clear that the facts come at least close to a case which can be said to be truly exceptional in its features. Even in such cases, which must be rare, it is important that the considerations raised are scrutinised rigorously.
12 Finally, I also agree that the real issue in this case is whether an abuse of process has been established. Where a true abuse of process is established, I think it would normally follow as a matter of logic that the proceedings should not be further entertained and should normally be struck out. There may be cases where the abuse itself is one capable of remedy, and where a locus poenitentiae might be permitted to allow the defect to be cured. But the normal and logical remedy for an abuse of process is the striking out or staying of the proceedings constituting abuse. Insomuch, however, as there is expansion of the concept of abuse of the process, and less reprehensible conduct is included under that heading, it may be understandable that there would be inevitable tendency to broaden the corresponding remedies to accommodate and respond to the different levels of conduct constituting abuse of process. That is, perhaps, a reason to ensure that the concept of abuse of process is not extended unduly, and its essential strength diluted. If it is considered that matters can properly be addressed by admonishment, then it is open to doubt that the conduct amounts to an abuse, de facto or otherwise, at all.
The Minister for Justice and Equality v Artur Celmer
(Respondent/Appellant) and By Order the Irish Human Rights and Equality Commission (Amicus Curiae)
[S:AP:IE:2018:000181]
Supreme Court
12 November 2019
unreported
[2019] IESC 80
O’Donnell J.
November 12, 2019
In the Matter of the European Arrest Warrant Act 2003 (As Amended)
JUDGMENT
Introduction
1. The appellant, Artur Daniel Celmer, is the subject of three European Arrest Warrants (“E.A.W.s”) issued by three separate regional courts in Poland (the Regional Courts of Poznan, Warsaw, and Wloclawek, respectively). The warrants seek his surrender to face trial in respect of five charges relating to offences characterised as “illicit production, processing, smuggling of intoxicants, precursors, surrogates or psychotropic substances or trafficking in same” and “participation in an organised criminal group or association whose aim is to commit the said offences”. The only ground of objection which is now under consideration is the appellant’s assertion that the court should not order his surrender in reliance on the provisions of s. 37 of the European Arrest Warrant Act 2003 (as amended) (“the 2003 Act”), which provides, inter alia, that the surrender should not be effected where to do so would be incompatible with the State’s obligations under the European Convention on Human Rights (“E.C.H.R.”), or would be a contravention of the Constitution.
2. The 2003 Act implements Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (as amended by Council Framework Decision 2009/299/JHA of 26 February 2009) (“the Framework Decision”). Recital 12 provides that the Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union (“TEU”) and reflected in the Charter of Fundamental Rights of the European Union (“C.F.R.E..U.” or “the Charter”).
3. The objection raised by the appellant was that systemic changes had been made to the organisation of the judiciary in Poland that had undermined the independence of the judiciary. It was contended that this, therefore, violated the respondent’s right to a fair trial guaranteed by Article 47 C.F.R.E.U. A right to a fair trial is of course also guaranteed by Article 6 of the E.C.H.R. and Articles 34, 38, and 40 of the Irish Constitution. It was not suggested in this case that any different analysis would arise in respect of the rights guaranteed under either of those instruments and no issue was raised in relation to the fact that the fact that the Charter is not specifically referred to in s. 37. The fundamental issue raised was whether the legislative changes in Poland had the effect of depriving the applicant of the right to a fair trial to such an extent as to oblige the executing authority, in this case the Irish courts, to refuse to surrender him in response to the European arrest warrants issued in Poland.
4. It is perhaps helpful to set out, at this point, the applicable provisions in greater detail.
The Treaty on European Union
5. Article 2 TEU states:-
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
6 Article 6 TEU provides:-
“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”
7 Article 7 TEU provides for a mechanism for the determination of a breach of the values referred to in Article 2. It provides:-
“1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.
4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.
5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.”
8. It should be observed at this point that a reasoned proposal dated 20 December 2017 has been made by the European Commission to the Council pursuant to Article 7(1) TEU inviting the Council to determine that there is a clear risk of a serious breach by Poland of the values referred to in Article 2 TEU in respect of the rule of law (see COM (2017) 835 (final)) (“the Reasoned Proposal”). The procedure established by Article 7(1) TEU was ongoing at the time of the proceedings in the High Court here, and has not yet concluded.
The Charter of Fundamental Rights of the European Union
9. Article 47 C.F.R.E.U. contains a guarantee of a right to a fair trial. It provides:-
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”
10. Article 48 C.F.R.E.U. guarantees the presumption of innocence and right of defence, and provides:-
“1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.
2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.”
11. Subsequent Articles of the Charter provide for the principles of legality and proportionality of criminal offences and penalties, and for the right not to be tried or punished twice for the same offence. These rights, it should be observed, apply only within the scope of European law in accordance with Article 51 C.F.R.E.U. Article 52 C.F.R.E.U. clarifies the scope of the guaranteed rights:-
“1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
The Framework Decision
12. The Framework Decision was designed to speed up the procedure for extradition of suspected offenders or those fleeing from justice following conviction. Extradition between Member States was to be abolished and replaced by a system of surrender. Recital 10 is particularly relevant, and corresponds to the provisions of Article 7 TEU:-
“The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.”
13. Recital 12 provides as follows:-
“This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.”
The European Arrest Warrant Act 2003 (as amended)
14. Section 37 of the 2003 Act is clearly referable to Recital 12 of the Framework Decision, although it might be said that it sets the matter out in more explicit terms. It provides as follows:-
“37.—(1) A person shall not be surrendered under this Act if—
(a) his or her surrender would be incompatible with the State’s obligations under—
(i) the Convention, or
(ii) the Protocols to the Convention,
(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38 (1)(b) applies),
(c) there are reasonable grounds for believing that—
(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or
(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less favourably than a person who—
(I) is not his or her sex, race, religion, nationality or ethnic origin,
(II) does not hold the same political opinions as him or her,
(III) speaks a different language than he or she does, or
(IV) does not have the same sexual orientation as he or she does,
or
(iii) were the person to be surrendered to the issuing state—
(I) he or she would be sentenced to death, or a death sentence imposed on him or her would be carried out, or
(II) he or she would be tortured or subjected to other inhuman or degrading treatment.
(2) In this section—
“Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950, as amended by Protocol No. 11 done at Strasbourg on the 11th day of May, 1994; and
“Protocols to the Convention” means the following protocols to the Convention, construed in accordance with Articles 16 to 18 of the Convention:
(a) the Protocol to the Convention done at Paris on the 20th day of March, 1952;
(b) Protocol No. 4 to the Convention securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto done at Strasbourg on the 16th day of September, 1963;
(c) Protocol No. 6 to the Convention concerning the abolition of the death penalty done at Strasbourg on the 28th day of April, 1983;
(d) Protocol No. 7 to the Convention done at Strasbourg on the 22nd day of November, 1984.”
The Proceedings in the High Court
15. The appellant’s objections to his surrender were considered in detail in a comprehensive judgment of the High Court (Donnelly J.) of 12 March 2018 (see [2018] IEHC 119) (“Celmer (No. 1)”). The judgment records that the appellant’s objection under s. 37 of the 2003 Act was, virtually, exclusively based on the recent changes in Polish legislation concerning the judiciary, the courts, and the public prosecutor. The appellant relied, principally, on the provisions of the Reasoned Proposal of the European Commission referred to above, made in accordance with the provisions of Article 7(1) TEU. That document was a proposal for a Council decision on the determination of a clear risk of a serious breach on the part of the Republic of Poland of the rule of law. The proposal referred to, and the appellant also relied on, a series of Opinions of the European Commission of Democracy through Law (“the Venice Commission”), an advisory body of the Council of Europe, which had been issued in respect of the legislative changes in the Republic of Poland.
16. The judgment of Donnelly J. in Celmer (No. 1) set out, in some detail, the evidence regarding the position then obtaining in Poland in respect of the independence of the judiciary. It is not necessary to repeat all the matters set out in detail in the judgment. However, it can be said that the judgment, in reliance on the Reasoned Proposal, recorded a number of important matters:-
(i) The annulment, by the lower house of the legislature (the Sejm), of the appointment (by the previous Sejm) of five judges to the Constitutional Tribunal, three of whom were to fill existing vacancies and two to fill anticipated vacancies: the decision of the Constitutional Tribunal was that the appointment of the three judges to fill existing vacancies was valid, but that the previous Sejm had not been entitled to appoint two judges in respect of vacancies which had not yet occurred;
(ii) The decision of the Constitutional Tribunal invalidating the appointment of three new judges in respect of those positions where the Constitutional Tribunal had held that the prior appointments had been valid;
(iii) The adoption of a law concerning the Constitutional Tribunal and the independence of judges;
(iv) The decision of the Constitutional Tribunal that the law adopted was unconstitutional;
(v) The fact that the decision of the Constitutional Tribunal in this regard was not published in this official journal, meaning that it did not have legal effect;
(vi) The fact that the European Commission gave a rule of law opinion in respect of Poland that there was a systemic threat to the rule of law in that country;
(vii) The decision of the Constitutional Tribunal invalidating the provisions of the law criticised by the rule of law opinion;
(viii) The fact that this further decision of the Constitutional Tribunal was also not published in the official journal and was therefore deprived of legal effect;
(ix) The adoption by the European Commission of a recommendation on the rule of law on Poland concerning the laws amending the law on the National School of Judiciary and Public Prosecution and the law on the Ordinary Courts Organisation and the Law on the Supreme Court;
(x) The adoption of a resolution by the parliamentary assembly of the Council of Europe and of the European Network of Councils of the Judiciary and a further resolution by the European Parliament;
(xi) The fact that the law on the Supreme Court reduced the compulsory age of retirement of judges from 70 to 65. The judges affected by the provision could make a request to the President of Poland to extend their service. The European Commission considered that these provisions “constitute[d] a flagrant violation of the independence of judges of the Supreme Court and of the separation of powers, and therefore of the rule of law”;
(xii) A provision permitting extraordinary appeals which would allow the Supreme Court to overturn any decision previously delivered by a Polish court in the previous year in respect of criminal cases, and in the previous 20 years in respect of other cases;
(xiii) A provision permitting appointment of extraordinary disciplinary officers by the President with powers in respect of judges. This permitted the President, and in some cases the Minister of Justice, to influence disciplinary proceedings against judges;
(xiv) A new law on the National Council for the Judiciary establishing an entirely new regime for appointment, allowing a high degree of political influence;
(xv) A new retirement age for ordinary judges which reduced the age of retirement from 67 to 60 in the case of female judges and from 67 to 65 in the case of male judges, and which gave the Minister of Justice power to decide on the prolongation of mandates until the age of 70. The Minister of Justice also had power to dismiss the presidents of courts with no criteria set for dismissal, no obligation to state reasons, and no possibility of judicial review;
(xvi) The adoption of a law allowing assistant judges to be appointed with lesser status than ordinary judges, notwithstanding that a previous regime for the appointment of assistant judges had been found by the European Court of Human Rights (“the E.Ct.H.R.”) to be inconsistent with judicial independence;
(xvii) A law permitting the Public Prosecutor’s Office to be merged with the Minister of Justice. The Minister of Justice and the Public Prosecutor General gained significantly increased powers of prosecution and management in this system, enabling the Minister of Justice to intervene in individual cases.
17. The Reasoned Proposal concludes that the European Commission was of the opinion that the situation described represented “a clear risk of a serious breach by the Republic of Poland of the rule of law referred to in Article 2 TEU”. The Reasoned Proposal noted (at para. 173) that there had been more than 13 legislative changes over a period of two years affecting the entire judicial system, a common pattern of which was that the executive and legislative powers had been systematically enabled to interfere with the composition, powers, and functions of judicial bodies, and that these changes had been adopted notwithstanding three formal recommendations on the rule of law issued by the European Commission.
18. The High Court noted that the applicable test under the E.C.H.R. where surrender or extradition was resisted on the grounds of the violation of a right depended on the right which it was claimed would be violated. In the case of the claim of a violation of Article 3 E.C.H.R. (the right to freedom from torture or inhuman or degrading treatment, also prohibited by Article 4 C.F.R.E.U.), which is an absolute right, it is sufficient that there is a “real risk of violation, but in the case of other Convention rights, which may be limited, it must be shown that there is a “flagrant violation”. In the case of a claimed violation of the Article 6 guarantee of a fair trial, this required therefore the demonstration of a “flagrant denial of justice”. This test is consistent with the judgment of the Supreme Court, and of Murray C.J. in Minister for Justice v. Brennan [2007] IESC 21, [2007] 3 I.R. 732 (“Brennan”), where, in the words of Murray C.J., it would take “egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting State” for surrender under the 2003 Act to be refused on the basis of a breach of fundamental rights in respect of the justice system.
19. The High Court accepted that the invocation of the Article 7(1) procedure by the European Commission was a political and not a legal act, but concluded that the Reasoned Proposal carried great evidential weight. The court concluded at para. 124 of the judgment that the rule of law had been “systematically damaged by the cumulative impact of all the legislative changes”. At para. 128 of the judgment, the court addressed the position of the Polish Minister of Justice: –
“If the [ appellant ] is surrendered, he will be returning to face trial in a jurisdiction where the Minister of Justice is now the Public Prosecutor and is entitled to play an active role in prosecutions. The same Minister of Justice has a disciplinary role over the Presidents of Courts. This has the potential for a chilling effect on those Presidents, with consequential impact on the administration of justice. As the Venice Commission notes at para 103 of Opinion No. 904/2017: “the president of the courts in the Polish system have vast powers vis-á-vis the ordinary judges and play important role[s] in the case management process….which makes strong dependence of the presidents before the [Minister of Justice] even more problematic.”
20. The High Court then turned to the obligation to surrender under the E.A.W. in light of the fact that the rule of law in Poland had been systematically damaged by the cumulative impact of the legislative changes. The court raised the question of whether the failure to abide by the rule of law amounted to “a flagrant denial of justice” or, adopting the language of Brennan, an “egregious circumstance” which amounted to a clearly established and fundamental defect in the system of justice in Poland. The High Court considered the approach of the Court of Justice of the European Union (“the C.J.E.U.”) in the case of Aranyosi and Căldăraru (Joined Cases C-404/15 and C-659/15 PPU) [2016] 3 C.M.L.R. 359 (“Aranyosi and Căldăraru”), concerning prison conditions in Romania, in which there had been a finding that the conditions generally were in breach of Article 4 C.F.R.E.U., prohibiting inhuman or degrading treatment. In those joint cases, the C.J.E.U. had stated that judicial authorities invited to execute European arrest warrants were bound to assess the existence of a risk of breach of Article 4 C.F.R.E.U. That assessment involved a two-stage process: first; a consideration of the systemic conditions within the requesting state, and, second; a consideration of whether such conditions would apply in the individual case. For that purpose, the court should seek further information from the requesting state in relation to the position of the individual concerned, and could take into account any assurances provided by the requesting state.
21. Significantly for present purposes, the High Court questioned at para. 141 whether such a two-step procedure was realistic or appropriate where the breach alleged was of the Article 47 guarantee of a fair trial, and where systemic defects had been identified in respect of the independence of the judiciary: –
“Where there is such a fundamental defect in a system of justice that the rule of law in the Member State has been threatened, it is difficult to see how the principles of mutual trust and mutual recognition may operate. Furthermore, where these are such egregious defects in the system of justice, it appears unrealistic to require a requested person to go further and demonstrate how, in his individual case, these defects will affect his trial.”
22. The High Court considered that the two-step test in Aranyosi and Căldăraru was predicated on mutual trust and recognition between judicial authorities:-
“The judgment of the CJEU in Aranyosi and Căldăraru proposes a two-step approach in determining whether fundamental rights have been breached. An initial finding of general or systemic deficiencies in the protections in the issuing state must be made, and the executing judicial authority must then seek all necessary supplementary information from the issuing state as to the protections for the individual concerned. These tests have been predicated on mutual trust and mutual recognition. A problem with adopting that approach in the present case is that the deficiencies identified are to the edifices of a democracy governed by the rule of law. In those circumstances, it is difficult to see how individual guarantees can be given by the issuing judicial authority as to fair trial when it is the system of justice itself that is no longer operating under the rule of law.”
23. In the light of these considerations, the High Court decided to make a reference to the C.J.E.U. under Article 267 of the Treaty on the Functioning of the European Union (“the T.F.E.U.”). It will be necessary to consider the precise terms of the reference, the opinion of the Advocate General, and the decision of the court thereon in due course, but it is important at this point to recognise the backdrop against which that request was made, in order to understand precisely what was asked of the C.J.E.U., and as importantly, what was not.
24. The request for a preliminary ruling was published as a judgment dated 23 March 2018 (see [2018] IEHC 153) (“Celmer (No. 3)”). This request contained a number of relevant findings of fact (at paras. 26 to 30), concluding that the rule of law in Poland had been systematically damaged by the cumulative impact of all the legislative changes, that the common value of the rule of law in Poland had been breached, and that there was a real risk of the appellant being subjected to arbitrariness in the course of his trial because of the system’s wide and unchecked powers was inconsistent with a democratic state subject to the rule of law. The court determined (at para. 29) that “where fundamental values such as independence of the judiciary and respect for the Constitution are no longer upheld, those systemic breaches of the rule of law are, by their nature, fundamental defects in the system of justice”.
25. The request also set out the respective positions of the parties. The appellant contended that the finding undermined the basis of mutual trust between the issuing and executing judicial authorities, and therefore the requirement to make any further assessment, specific and precise, of whether there were substantial grounds to believe the individual concerned would be exposed to a risk of breach of their fundamental rights as per Aranyosi and Căldăraru, could not be applicable. The Minister, for his part, contended that any general or systemic deficiency, even if determined to be a fundamental and egregious deficiency, did not take away from the requirement for it to be established that the individual concerned would be exposed to a “real risk of a flagrant denial of justice”.
26. Accordingly, the court referred the following questions to the C.J.E.U.:-
(1) Notwithstanding the conclusions of the Court of Justice in Aranyosi and Căldăraru, where a national court determines there is cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing state is no longer operating under the rule of law, is it necessary for the executing judicial authority to make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of unfair trial where his trial will take place within a system no longer operating within the rule of law?
(2) If the test to be applied requires a specific assessment of the requested person’s real risk of a flagrant denial of justice and where the national court has concluded that there is a systemic breach of the rule of law, is the national court as executing judicial authority obliged to revert to the issuing judicial authority for any further necessary information that could enable the national court discount the existence of the risk to an unfair trial and if so, what guarantees as to fair trial would be required?
27. The request for a reference also set out the preliminary views of the national court. On the first question, the court was of the preliminary opinion that where there are egregious defects in the system of justice, it appears unrealistic to require a requested person to go further and demonstrate how, in their individual case, these defects will affect their specific trial, and this was to be distinguished from a situation in relation to, for example, conditions of detention in an issuing Member State. In such circumstances, it was conceivable that even where there were general and systemic deficiencies in a Member State, that did not inevitably lead to a conclusion that the individual would be subjected to inhuman or degrading treatment, as it could be possible to be provided with information and guarantees that the individual would not be subject to that risk. In relation to the second question, the court acknowledged that this was dependent on the C.J.E.U.’s answer to the first question, but nevertheless observed:
“in light of the obvious difficulties of giving guarantees specific to the trial of an individual where the rule of law itself has been systemically breached, the [C.J.E.U.] may conclude that no realistic purpose can be served by requesting those types of individual guarantees. The [C.J.E.U.] may conclude that the type of guarantee required is one that demonstrates systemic compliance with the rule of law in the issuing state”.
Opinion of the Advocate General
28. Advocate General Tanchev delivered his Opinion on 28 June 2018 (Opinion in Minister for Justice and Equality v. L.M. (Case C-216/18 PPU) EU:C:2018:517) (“L.M. Opinion”). First, the Advocate General observed that, while there is a clear overlap between the values contained in Article 2 TEU and the specific rights guaranteed by the Charter, they are nevertheless distinct concepts. Furthermore, the roles the European Commission and the Council carry out respectively under Article 7 TEU are different and distinct from the issue for an executing judicial authority when it is asserted that surrender should not be effected because of an alleged breach of rights (whether guaranteed by the Charter, the E.C.H.R., or a domestic constitution). It is important to keep these distinctions clearly in mind. It is clear that the Advocate General considered that it was particularly important to proceed in a careful, precise, and sequential manner.
29. An initial question, therefore, was whether the jurisdiction to refuse to surrender in cases of a real risk of an anticipated breach first identified in Aranyosi and Căldăraru (which concerned an alleged breach of the guarantee contained in Article 4 C.F.R.E.U. prohibiting inhuman or degrading treatment) extends to a situation where it is alleged that a different right, in this case the right to a fair trial under Article 47 C.F.R.E.U., will be breached. The right protected by Article 4 C.F.R.E.U. is absolute, and does not admit of exceptions. On the other hand, the right protected by Article 47 C.F.R.E.U., like most other rights guaranteed by the Charter, may, by the terms of the Charter, be subject to limitation. The Advocate General concluded, however, that the jurisdiction in Aranyosi did indeed extend to an allegation that rights other than those protected by Article 4 C.F.R.E.U. would be breached. It is important to identify the reasoning of the Advocate General in this regard. It is worth observing that any trial of the appellant in Poland for offences relating to drug trafficking would not itself be directly controlled by the Charter, since such a trial is not itself within the scope or field of application of European Union law (the trial would, however, be directly subject to the E.C.H.R., whether implemented domestically, or as part of Poland’s international obligations as a contracting State of the Council of Europe, and of course also subject to Polish constitutional law). The Charter is engaged here by the request for surrender, since that is made pursuant to legislation implementing the Framework Decision.
30. The Advocate General observed that the principle of mutual co-operation, which has been identified as the cornerstone of judicial cooperation in civil and criminal matters, is itself founded on the principle of mutual trust between Member States of the European Union. In the first place, such mutual trust operates at the level of the Member States. This means that, save in exceptional circumstances, each Member State is required to consider that another is complying with European law, and, in particular, with fundamental rights guaranteed under that law. It follows that Member States may not, save in exceptional circumstances, check whether another Member State has observed rights guaranteed by European Union law. It follows from this reasoning, it seems to me at least, that a decision made by an executing authority to surrender pursuant to a European Arrest Warrant is not intended to be a primary method of enforcement of the obligations of Member States under the TEU, and, furthermore, that the courts of such Member States are not normally intended to become the mechanism for the enforcement of fundamental rights in another Member State. The courts of the Member State whose conduct is impugned and the E.Ct.H.R. are bodies whose function it is to deal with claims of individual breach, and Recital 10 of the Framework Decision addresses circumstances where issues of alleged systemic breach arise. There is also the possibility of an infringement action being commenced in the Commission. However, in exceptional circumstances, and in an individual case, a court may refuse to surrender notwithstanding its obligations of mutual trust. Mutual trust, as it was put, does not constitute blind trust (para. 55 of the L.M. Opinion).
31. While the jurisdiction in Aranyosi and Căldăraru is therefore of general application when it is asserted, and perhaps established, that a breach of Charter rights has occurred in another Member State, it is an exception to a general and important principle of European law, derived in part from the structure of Union law, and it follows that such limitation or exception must be interpreted strictly (para. 73).
32. What would be required before surrender should be refused was considered by the Advocate General. As already observed, the trial itself would not be within the scope of European law. The request for surrender, however, is. It is fundamental to any surrender that the request should issue by virtue of a judicial procedure which can enjoy mutual recognition. Borrowing from the reasoning of Advocate General Bobek as to the basis for a refusal of recognition of a judgment in another Member State pursuant to Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, only a judgment delivered in court proceedings offering guarantees of independence and impartiality, and in compliance with the principles of audi alteram partem, could satisfy that requirement. If, therefore, the deficiencies in a system in a particular instance are such that it could be said that the requesting court did not satisfy that definition, and in that sense was not a court at all, then the executing judicial authority could refuse to surrender. If the criminal courts of a Member State are no longer able to guarantee a fair trial, the principle of mutual trust no longer applies and automatic mutual recognition is therefore precluded. As the Advocate General observed at para. 65 of the Opinion:-
“[…] if there is a real risk of the procedure conducted in the issuing Member State not satisfying the requirements of the second paragraph of Article 47 of the Charter, the premiss forming the basis of the obligation in Article 1(2) of the Framework Decision to execute any European arrest warrant is absent.”
33. The Advocate General went on to specifically address a question not directly raised by the referring court, but rather assumed by all the parties in the proceedings before the Irish courts: the standard to be established before surrender could be refused in the case of an alleged breach of Article 47 C.F.R.E.U. In the case of an asserted breach of Article 4, the test set out in Aranyosi and Căldăraru was whether it could be shown that there was a “real risk” of breach of the right. However, under the E.C.H.R. (and, as the Advocate General noted, under Irish law), where it is alleged that the person will experience conduct which would be a breach of other rights if carried out in a contracting state, the relevant courts required a higher and different standard: surrender would only be refused where there is a real risk of a “particularly serious breach”, described in the jurisprudence of the ECtHR as a “flagrant breach”, and in this case a “flagrant denial of justice”. The Advocate General specifically addressed the question of whether it was only “where there is a real risk of a particularly serious breach of [Article 47(2) C.F.R.E.U.] , such as a flagrant denial of justice” before surrender could be refused. The Advocate General proposed a test of a flagrant denial of justice on the basis, first, that the principles established that any exception to the obligation of mutual trust and confidence should be interpreted strictly; second, because the right to a fair trial guaranteed by Article 47 C.F.R.E.U. was not unlimited; and finally, because a similar test had been adopted in the jurisprudence of the E.Ct.H.R. That test had first been identified in the case of Soering v. United Kingdom (App. No. 14038/88) (1989) 11 E.H.R.R. 439 (“Soering v. United Kingdom”). This test broadly corresponds to the test arising when it is alleged that surrender would breach a provision of the rights guaranteed under the Irish Constitution (see Brennan and Minister for Justice v. Balmer [2016] IESC 25, [2017] 3 I.R. 562) and may be said to be consistent with the obligation of mutual trust and confidence.
34. The next question addressed was whether a lack of independence, as asserted in the Reasoned Proposal, was itself capable of being a particularly serious breach so as to satisfy the test. In principle, a lack of independence could satisfy this test. However, the Advocate General pointed out that it was significant that on only four occasions since Soering v. United Kingdom had the ECtHR found that this test had been satisfied. On two occasions, this had concerned the question of surrender to tribunals having jurisdiction in terrorism cases and composed exclusively of members of the armed forces. Accordingly, the Advocate General considered, at para. 93 of the Opinion, that “the lack of independence and impartiality of a tribunal can be regarded as amounting to a flagrant denial of justice only if it is so serious that it destroys the fairness of the trial”. As the E.Ct.H.R. observed in the judgment in Othman (Abu Qatada) v. The United Kingdom (App. No. 8139/09) (2012) 55 E.H.R.R. 1, there is a crucial difference between the admission of evidence obtained by torture, at issue in that judgment, and breaches of Article 6 E.C.H.R. that are based on defects in the composition of the trial court.
35. Finally, Advocate General Tanchev turned to the question posed by the Irish court as to whether, in cases where it was alleged that Article 47 C.F.R.E.U. would be breached by reason of systemic conditions in a national court, it was necessary to take the further step identified in Aranyosi and Căldăraru of assessing if the individual concerned risked suffering a flagrant denial of justice. Again, the Advocate General concluded, at para. 104, that the executing authority “is required to postpone the execution of a European arrest warrant only where it finds not only that there is a real risk of flagrant denial of justice on account of deficiencies affecting the system of justice of the issuing Member State but also that the individual concerned would be exposed to that risk”. It was necessary to establish particular circumstances relating either to the person or the offence which could be said to expose him or her to the risk identified. The Advocate General observed that the appellant in this case had only asserted, generally, that the system of justice in Poland was deficient. He did not explain in what way the deficiencies in the Polish system of justice, assuming that they are proven, would prevent his case from being heard by an independent and impartial tribunal. He merely asserted, in a general manner, that the Polish system of justice did not satisfy the requirements of the rule of law. The Advocate General concluded that the executing judicial authority was required to postpone the execution of a European arrest warrant where it found not only that there was a real risk of flagrant denial of justice on account of the deficiencies in the system of justice of the issuing Member State, but also that the person who is the subject of that warrant is exposed to such a risk. In order for a breach of the right to a fair trial enshrined in Article 47(2) C.F.R.E.U. to constitute a flagrant denial of justice, that breach would have to be so serious that it destroyed the essence of the right protected by that provision. In order to determine whether the individual concerned was exposed to the risk of a flagrant denial of justice that is at issue, the executing judicial authority would have to take account of the particular circumstances relating both to that person and to the offence in respect of which he was being prosecuted, or had been convicted.
The Grand Chamber of the C.J.E.U.
36. The decision of the C.J.E.U. was delivered on 25 July 2018 (see Minister for Justice v. L.M. (Case C 216/18 PPU) EU:C:2018:586) (“L.M.”). The C.J.E.U. reformulated the questions referred as follows:-
“Thus, by its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 1(3) of Framework Decision 2002/584 must be interpreted as meaning that, where the executing judicial authority, called upon to decide whether a person in respect of whom a European arrest warrant has been issued for the purposes of conducting a criminal prosecution is to be surrendered, has material, such as that set out in a reasoned proposal of the Commission adopted pursuant to Article 7(1) TEU, indicating that there is a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary, that authority must determine, specifically and precisely , whether there are substantial grounds for believing that the individual concerned will run such a risk if he is surrendered to that State. If the answer is in the affirmative, the referring court asks the [C.J.E.U.] to specify the conditions which such a check must satisfy. ( Emphasis added ).”
37. The court observed that “while execution of the European arrest warrant constitutes the rule, refusal to execute is intended to be an exception which must be interpreted strictly”.
38. The court laid particular stress on the importance of the independence of courts, which it considered to be essential to the proper working of the judicial cooperation system embodied by the preliminary hearing mechanism under Article 267 T.F.E.U., and also in the context of the European arrest warrant mechanism. That meant that not only the decision on executing a European arrest warrant, but also the decision to issue such a warrant must be taken by a judicial authority that meets the requirements inherent in effective judicial protection — including the guarantee of independence — so that the entire surrender procedure between Member States as provided for in the Framework Decision is carried out under judicial supervision. The court observed that:-
“It must, accordingly, be held that the existence of a real risk that the person in respect of whom a European arrest warrant has been issued will, if surrendered to the issuing judicial authority, suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, a right guaranteed by the second paragraph of Article 47 of the Charter, is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to that European arrest warrant, on the basis of Article 1(3) of Framework Decision 2002/584.” (para.59)
39. The requirement that a court be independent is described as forming part of that right (to a fair trial under Article 47 C.F.R.E.U.) and has two aspects. First, an external aspect, requiring that the court, when exercising its functions, should do so autonomously without being subject to any constraint or being subordinated to any other body. Second, independence also had an internal component, linked to impartiality and seeking to ensure that the court maintains an equal distance from the parties to the proceedings and their respective interests.
40. However, the court pointed out that under the Framework Decision, surrender could only be suspended generally, if the European Council was to adopt a decision under Article 7(2) TEU that there was a serious and persistent breach in the issuing Member State of the principles set out in Article 2 TEU. So long as such a decision had not been adopted, then it was only in exceptional circumstances that a court could refuse to surrender, and that was where the authority found, after a specific and precise assessment of the particular case that there were substantial grounds for believing the person in respect of whom the European arrest warrant had been issued would, following a surrender to the issuing judicial authority, run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial. This assessment required the executing authority to examine, in particular, to what extent the systemic or generalised deficiencies regarding independence of the issuing Member State’s courts were liable to have an impact at the level of that state’s courts with jurisdiction over the proceedings to which the requested person would be subject (para.74). If so, the assessment must consider, in the light of any information supplied by the individual, and any concerns expressed by him or her, whether there are substantial grounds for believing that, having regard to his or her personal situation, and the nature of the offence charged, he or she will run a real risk of a breach of the fundamental right to a fair trial (para.75).
The subsequent proceedings in the High Court
41. There were a number of developments of some significance which were brought to the attention of the High Court when the matter returned to it to decide the case in accordance with the guidance given by the C.J.E.U (see [2018] IEHC 484) (“Celmer (No. 4)”). The existence of the proceedings had generated considerable public commentary in Poland. The court was informed of comments reportedly attributed to the Deputy Minister of Justice, with responsibility for European arrest warrants, that it was incomprehensible that general abstract deliberations, projections, and speculations, “become the basis of such an important decision as the handover of a criminal sought in the whole of Europe”. The same Deputy Minister of Justice was recorded as describing the respondent as a “dangerous criminal”, and when questioned as to whether this was appropriate, responded by saying:-
“I named him as a criminal because the evidence is very concrete, but I accept the principle of presumption of innocence until the final judgment”.
A further newspaper reported the same Deputy Minister of Justice as stating:-
“we deplore the fact that the Irish court is suspending the punishment of a dangerous criminal from a drug mafia [sought] all over Europe with a European arrest warrant”.
42. In a judgment delivered on the 1st of August, 2018, the Irish High Court decided to seek further information from the Polish issuing judicial authority.
43. Subsequent to this, the Irish Human Rights and Equality Commission (“IHREC”) was joined as an amicus curiae and thereafter made submissions.
Further Information
44. In her judgment of 19 November 2018 (see [2018] IEHC 639) (“Celmer (No. 5)”), Donnelly J. proceeded to determine the issues in light of the further information received by the court. The request for further information led to further surprising and concerning developments. An expert report from Polish lawyers from the firm of Pietrzak Sidor & Wspólnicy was submitted on behalf of the appellant detailing the changes in the Polish system of justice.
45. The report addressed the position of the National Council for the Judiciary. The method of appointment of new members to the Council had been the subject of criticism in the Reasoned Proposal because it had been changed to permit members of the Council to be nominated by the Sejm, giving the parliament decisive influence on the composition of the Council. This was important and had a direct effect on the independence of judges because the Council had an important role in relation to promotion, transfer, disciplinary proceedings, early retirement, and dismissal. The rules relating to the composition of the National Council had not changed since the adoption of the Reasoned Proposal.
46. The law relating to the Ordinary Courts Organisation, criticised in the Reasoned Proposal, came into force on the 12th of August 2017. Since that date had been amended 15 times some of the amendments touching upon or directed towards matters addressed in the Reasoned Proposal. Under the 2017 law, the retirement age had been reduced for male judges from 67 to 65 and for female judges from 67 to 60. The Minister for Justice had the power to extend a judge’s mandate. Under a subsequent amendment, prolongation of the judicial mandate was to be decided by the National Council for the Judiciary.
47. A criterion for prolongation was added, which permitted extension of justified in the interest of justice or in important social interests, and in particular justified by the need to use resources rationally. No time frame was provided for any such a decision. The lawyers accordingly considered that the changes did not address the essential conclusion of the recent proposal and that the concerns expressed therein remained valid.
48. The 2017 law also permitted the Minister for Justice to dismiss court presidents and vice-presidents within a period of six months from the date of coming into force the law, without reasons or any concrete criteria. No judicial review of such a decision was envisaged. Following the six-month period, dismissal could still be affected in consultation with the National Council of Judges, which could only block a removal by a two-thirds majority. The report records that in the six-month period after the coming into force of the law at least the power to dismiss was utilised on at least 130 occasions. This provision was subsequently amended to permit removal, by the Minister, of presidents and vice-presidents, only after consultation with the board of the court. If the board, however, provided a negative opinion, the dismissal could still be effected unless blocked by a resolution of the National Council for the Judiciary by a two-thirds majority. Again, the lawyers expressed the opinion that the concerns expressed in the Reasoned Proposal remained valid.
49. A further issue addressed in the Reasoned Proposal was the power of appointment as president or vice-president. The only criteria was that the judge had to be selected from sitting judges. The report emphasised the important role of presidents and vice-presidents in the administration of justice, particularly because presidents of courts conducted internal supervision. Concern was also expressed in relation to disciplinary proceedings, in particular the power of the Minister for Justice to issue written notices to presidents or vice-presidents, coupled with reduction in salary. No changes had been made in respect of these matters, and the lawyers concluded that the concerns expressed in the Reasoned Proposal remained valid.
50. In relation to the specific European arrest warrant request, the report recorded that the presidents of each of the relevant courts (Warsaw, Poznan, and Wloclawek) had been changed by the Minister for Justice in two cases (Poznan and Wloclawek) as a result of the expiry of the mandate of the existing president, and in the case of Warsaw, before the end of the mandate of the previous president. The report considered that the changes to the constitutional tribunal addressed in the Reasoned Proposal were not relevant to the European arrest warrant request. However, changes at the level of the Supreme Court, might become directly relevant, if after a final judgment in the case, the individual concerned decided to lodge a cassation/extraordinary appeal.
51. The statements by the Deputy Minister indicated that the presumption of innocence had been infringed by representatives of the executive. These raised serious concerns “due to the current legal framework in which the Polish judicial system operates and which offers many avenues through which the executive may influence the judiciary.”
52. In addition to this information, the court also received responses from the issuing judicial authorities. The most detailed response was given by the President of the Warsaw Regional Court, Judge Joanna Bitner. President Bitner defended the Polish legal system and stated that “regardless, however, which view will prevail in the end [ as to the constitutionality of the changes to the legal system ], Polish law provides for guarantees of independence of judges, regardless of how the Council participating in their election process is created”. Guarantees of fair trial were provided for in the Constitution and international treaties ratified by Poland, including in EU law and the European Convention on Human Rights. She maintained that there was no risk of a violation by Polish courts of those highest values.
53. However, the court also received a reply from the Warsaw Regional Court from the judge named on the warrant issued by the court as a representative of the issuing judicial authority, Judge Piotr Gaciarek. There was a clear dispute between President Bitner and Judge Gaciarek as to who was to represent the issuing authority. As the High Court judge observed, this dispute only highlighted the considerable tensions that the recent legislative changes have wrought among the Polish judiciary.
54. Judge Gaciarek did not dispute the existence of the quoted provisions of the Polish constitution and the other provisions set out by President Bitner. However, he did not accept that there were no risks for the independence of judges in courts in Poland. He identified examples where judges had been summoned for disciplinary proceedings arising from politically controversial rulings. These, it should be noted, included what were described as the inclusion of prejudicial questions in references to the C.J.E.U. by individual judges, and a perception that disciplinary proceedings against another judge had been commenced because of a decision made acquitting N.G.O. activists who had protested at an election meeting of a member of the ruling party. Judge Gaciarek also raised concerns about evidence that might be admitted in disciplinary hearings. He also expressed the view that the concerns expressed by the Polish lawyers were legitimate beyond dispute. He considered that a common feature of all the alterations of the law is that they were undertaken with respect to judges who “openly criticize the amendments pushed by the Government and Minister for Justice with the aim to have the courts and judges under political control”.
55. Judge Gaciarek also addressed the question of the “nexus between the dismissal of the court presidents and the comment by the Deputy Minister of Justice concerning the person requested in this case”. In the same paragraph he also addressed the question of how “the removal [of] court presidents might have any effect on the trial of Mr Celmer if he was to be surrendered”. He said:-
“The statements by the Deputy Minister of Justice, Marcin Warchol, as quoted in the Report, should be perceived as a typical rhetoric of politicians currently in power, who build their position among voters based on illegitimate and unjust attacks on courts and judges. As a judge I do not see a direct effect of such statements or of the way of appointing court presidents on court rulings in this or other cases. One cannot, however, lose sight of the fact that under the provisions of Article 27 of the Law on the System of Common Courts, performance of his/her mandate by a president and vice-president of the court, is subject to an assessment by the Minister of Justice, who can dismiss them during their term of office, among others should one identify particularly low effectiveness in the field of administrative supervision or work organisation in a court or lower courts concerned.”
The judgment of the High Court which is under appeal
56. The High Court judge first addressed the question of the systemic deficiencies alleged. She concluded, at para. 93 of her judgment, in Celmer (No. 5) that there was a “real risk connected with a lack of independence of the courts of Poland on account of systemic or generalised deficiencies there, of the fundamental right to a fair trial being breached”.
57. The judge then turned to the question of whether such deficiencies applied to the court at the level at which the appellant would be tried. She considered that there was evidence that, in at least 130 instances, the Polish Minister of Justice had exercised power to dismiss presidents and vice-presidents and that many of the newly appointed persons had connections with the Minister of Justice or with the executive branch of government. In the specific case of the Regional Courts in Wloclawek, Warsaw, and Poznan, which had issued the European arrest warrants at issue here, there had been changes. In the case of the Regional Court in Wloclawek, there had been a change on the basis of a discretionary decision of the Minister for Justice. In the other two courts, changes were made following the expiration of the mandates of former presidents. However, the vice-presidents of the Regional Court in Warsaw responsible for criminal, commercial and civil departments were changed before the expiration of their mandates. The High Court judge concluded that the deficiencies in the independence of the judiciary would affect the court level before which the appellant would be tried if surrendered. The final issue addressed by the court involved a specific and precise assessment of the appellant’s situation, and in particular, whether that situation amounted to a flagrant denial of justice.
58. In this regard, it should be said that the court first had to address the argument raised by the IHREC that the court was not required to find that the deficiencies amounted to a flagrant denial of his fundamental right to a fair trial. As the High Court observed, the discussion may not have been entirely necessary, as the appellant’s main submission was that, in light of the particular concerns as to independence, it was contended that the essence of the right had indeed been violated. The High Court referred with approval to the decision of the High Court of England and Wales in Lis v. Regional Court in Warsaw [2018] EWHC 2848 (Admin), [2018] All E.R. (D) 28 (Nov.) (“Lis. v. Regional Court in Warsaw”) in which that court had had to consider the impact of the ruling of the C.J.E.U. in L.M. on the question of the surrender of individuals in response to European arrest warrants issued by the Polish courts, and in that case the Regional Court in Warsaw. It had been argued in that case that the outcome of the decision of the C.J.E.U. was to depart from the standard set by the E.Ct.H.R. of a requirement of a flagrant denial of justice, and to require merely a real risk of breach of a right. Lord Burnett of Maldon C.J. for the Divisional Court of the High Court of England and Wales rejected that argument, concluding that “if the Luxembourg Court were seeking to draw a qualitative distinction between that concept and the oft-repeated formulation of the Strasbourg Court of a “flagrant denial of justice” it would have said so […]”. Donnelly J. concluded that the C.J.E.U. in L.M. did not amend the test of a flagrant denial of justice, but at the same time emphasised that the issue was not truly live in the case. From the outset, the appellant had posited his case on the lack of independence of the Polish judiciary, which, it was contended, amounted to a flagrant denial of justice. This had been maintained before the C.J.E.U. and in written submissions subject to the delivery of the decision on the referral. The High Court considered it was inconceivable that the C.J.E.U. was amending the well-settled test by implication. The High Court had, itself, posed its questions to the C.J.E.U. by referring to the test of flagrant denial. The appellant’s case was made by reference to that standard. Accordingly, the court considered that the references in the judgment of the C.J.E.U. to the “essence of the right” and the “flagrant denial of a right” were to be understood as essentially the same test.
59. The High Court noted that the appellant’s Polish experts confirmed that the Constitution and Code of Criminal Procedure in Poland provided guarantees of a fair trial. There had been no production of statistics, or even anecdotal evidence of trials lacking in fairness since the changes regarding the judiciary in Poland. Furthermore, Judge Gaciarek, upon whose report the respondent relied, had stated that he and other judges adjudicating in the Warsaw Regional Court “try to perform our obligations to the best of our abilities and administer justice impartially and free from any pressures”. Accordingly, the High Court concluded that the threshold for the refusal of surrender, that is, a real risk on substantial grounds that the essence of the fundamental right to a fair trial would be breached, was not reached on the basis of the systemic and generalised deficiencies in the independence of courts in Poland, where the totality of the evidence was taken into account.
60. Finally, however, the court turned to the question of the comments attributed to the Deputy Minister of Justice, which had not been qualified or denied. Those comments were very public, and could be said to violate the presumption of innocence of the accused. It was argued that this was of sufficient seriousness that, when combined with the generalised and systemic deficiencies already identified, the threshold was passed, and surrender should be refused.
61. The High Court considered that it was not in dispute that statements of public officials are not to be taken into account in decision making process in Poland, and only the facts and evidence collected and taken at the trial can be utilised in determining a case. It was stated by President Bitner that a person affected by the comments of a public official had remedies against such an official if necessary. It was notable, however, that the statements were made against the background of control over court presidents and, in particular, by the Minister of Justice. However, Judge Gaciarek had dismissed the statements and said that they should be “perceived as the typical rhetoric of politicians currently in power, who build their position among voters based on illegitimate and unjust attacks on courts and judges”. Accordingly, the High Court concluded that, despite concerns about the statements, which were heightened by the roles the Minister for Justice had in the prosecution of offences, and the control of court presidents and vice-presidents and in the disciplinary process, the making of the comments did not give rise to a real risk that the appellant would face a flagrant denial of his right to a fair trial on his surrender to Poland. Accordingly, the High Court said that the threshold of a real risk of flagrant denial of justice, or of breach of the essence of the right, had not been established and, accordingly, held that the court must order surrender on the three European arrest warrants.
The appeal to this court
62. On the 28th of November, 2018, (see [2018] IEHC 687) (“Celmer (No. 6)”), the High Court granted a certificate of leave to appeal to the Court of Appeal on the following question:-
“Is the decision of [the C.J.E.U.] in L.M. to be interpreted as meaning, where there are systemic and generalised deficiencies in the independence of the judiciary which affect the level of court in the Member State before which a person requested for surrender pursuant to a European arrest warrant will be tried in the event of being surrendered, that those deficiencies are sufficient, on their own [ and in the absence of evidence of deficiencies in other safeguards for a fair trial ], to establish substantial grounds that there is a real risk of a breach of the essence of the requested person’s right to a fair trial?”
63. Given the urgency of the matter, it was agreed by the parties that an application for leave to appeal to this court by way of “leapfrog” application should be made. By a determination of this court on the 20th of February, 2019, (see [2019] IESCDET 45), this court granted leave to appeal.
64. One further development may be noted. The High Court had noted that proceedings had been commenced in the C.J.E.U. by the Commission against Poland in which the Commission had sought a determination that the Republic of Poland was in breach of its obligations under Article 19(1) TEU and Article 47 of the C.F.R.E.U., both by lowering the retirement age for sitting judges of the Supreme Court and by providing for a discretionary extension of service. On the 24th of June, 2019, prior to the hearing of this appeal, the Grand Chamber delivered judgment in those proceedings: see Commission v. Poland (Independence of the Supreme Court) (Case C-619/18) EU:C:2019:531 (“Commission v. Poland”). The court found that both of the impugned provisions were a breach of the Republic of Poland’s obligations under Article 19 TEU. At para. 58 of the judgment, the court observed that:-
“That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.”
65. In that regard, it may be noted that the C.J.E.U. cited its judgment in the reference in this case, L.M.
66. At the hearing of this appeal, the IHREC advanced a number of arguments in respect of the test to be applied, which were in turn adopted by the appellant. It was argued that the decision of the C.J.E.U. in this case was to be understood as rejecting the test of flagrant denial (or any similar test) adopted by the E.Ct.H.R., and that, instead, it was sufficient that it be demonstrated that there was a real risk of a breach of a right guaranteed by the Charter, and that the evidence in this case was sufficient to satisfy that test. It was also argued by the IHREC that it was permissible to adopt this interpretation of Article 47 C.F.R.E.U. and markedly depart from the jurisprudence of the E.Ct.H.R. in respect of Article 6 E.C.H.R. It was acknowledged that Article 47(2) and (3) corresponded to the provisions of Article 6 of the E.C.H.R., but it was suggested that under Article 52(3) C.F.R.E.U. it was permissible to adopt a higher standard of protection.
67. Article 52(3) of the Charter provides that “[i]n so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”. It is clear that Article 47(2) and (3) correspond to Article 6 E.C.H.R., save that the limitation in Article 6 E.C.H.R. to civil rights and obligations and criminal proceedings is not present in Article 47 C.F.E.U.: see the Explanations in Relation to the Charter of Fundamental Rights (2007/C 303/02). However, it is argued, in reliance in part on certain observations made by Advocate General Sharpston in her Opinion in Ministerul Public v. Radu (Case-396/11) EU:C:2012:648 (“Radu”) that it was permissible to interpret Article 47(2) and (3) C.F.R.E.U. as setting a lower threshold (and therefore imposing a greater protection for rights) in reliance on the last sentence of Article 52(3) C.F.R.E.U.
68. At para. 80 of her Opinion in Radu, Advocate General Sharpston had said “[i ]n considering the case-law of [ the E.Ct.H.R .] it is always necessary to bear in mind that Article 52(3) of the Charter provides that it is open to Union law to provide more extensive protection than that laid down by the Convention”. In her Opinion, Advocate General Sharpston expressed difficulty in accepting the test that any breach in question should be “flagrant”, which appeared too nebulous a test to be interpreted consistently throughout the Union.
69. The IHREC, and subsequently the appellant, argued that it was therefore permissible, by interpretation of the Charter, to provide for a lower threshold and thus more extensive protection of the position of the individual: in this case, by the adoption of a test of a real risk of breach of a right guaranteed by the Charter.
The standard to be applied
70. Framed in the abstract, the proposition that it is possible to provide for more extensive protection of a right protected by the Charter might be thought to be an entirely positive development. But, apart from those rights deemed absolute, any guarantee of rights involves a balance. The assertion or expansion of any right involves correlative duties or expansion of duties imposed on institutions, countries, and, in some cases, individuals, and, by definition, an alteration of the balance adopted by the citizens of the European Union, whether directly by referendum, or by parliamentary approval. For my part, I would not be willing to accept the approach to the interpretation of the provisions of the Charter suggested by the appellant and IHREC without the clearest guidance from the C.J.E.U. that such an approach was required. While any observation of Advocate General Sharpston is worthy of the greatest respect and careful consideration, it is apparent that it was merely a general statement, and is, to that extent, unremarkable. The sentence quoted merely paraphrases the provisions of Article 52(3) C.F.R.E.U. Any suggestion, however, that Article 52(3) C.F.R.E.U. permits a more expansive interpretation of the Charter provisions than that applied to corresponding provisions of the E.C.H.R. would involve a paradoxical interpretation of Article 52(3) C.F.R.E.U. in which the last sentence would contradict the preceding one. Instead of a guarantee that the meaning and scope of corresponding provisions would be the “same”, the provision would have quite a different meaning: the Charter provisions could not provide a lower standard than corresponding E.C.H.R. provisions, but might be more extensive. “A floor, not a ceiling” is a well-recognised concept, and if that is how the drafters of the Charter wished the Member States and the people of Europe who adopted the Charter to understand what the scope of the Charter would be, it would have been simple to say so.
71. There, are no, doubt difficulties when two courts and systems are required to interpret different instruments with corresponding provisions and which, in the case of the Charter, are required to have the same meaning and scope. But there are obvious interpretative difficulties in accepting the reading of the terms of Article 52(3) C.F.R.E.U. proposed. Moreover, such an interpretation would also give rise to considerable uncertainty. Furthermore, any such interpretation would raise troubling questions, since the provisions of the Charter were adopted by the decision of the Member States, and, in the case of this jurisdiction, by a referendum of the people approving the Lisbon Treaty, and it does not seem either possible or appropriate to depart substantially from the apparent understanding of the terms of the Charter as approved.
72. Furthermore, it is clear that the provisions of Article 52(3) C.F.R.E.U. can be given a clear interpretation in accordance with their terms: Union law, in the shape of directives, regulations, or decisions, might impose higher standards in particular areas. That is no justification for contending that the Charter could itself be interpreted to achieve such an outcome. There are undoubted difficulties when autonomous courts approach the interpretation of apparently similar provisions intended to correspond. Some degree of ongoing difference, debate, and dialogue may be unavoidable but the process is intended to achieve a consensus and co-operation rather than to willingly create differences with consequent uncertainty and confusion for national courts.
73. However it is not necessary to determine that issue here, which might itself require a further reference to and clarification by the C.J.E.U. First, the issue raised here does not explicitly involve a question of the meaning or scope of the Charter right, and in this case Article 47. The meaning to be given to that right is not in dispute under the Charter or the E.C.H.R., nor is there debate as to the extent of the rights insomuch as they correspond. What is in issue here, is the extent to which the Charter or the E.C.H.R. requires a court to refuse co-operation to the court of another country because of an anticipated breach of the rights or values guaranteed by the respective instrument. It is arguable that that test may apply differently in the context of the members of the European Union based on agreed fundamental values, and on a requirement of mutual trust and confidence. Second, it is notable that the argument advanced by the IHREC and the appellant goes much further than what was contemplated in the Opinion of Advocate General Sharpston in Radu. It was apparent that the issue being raised there concerned the clarity of the terminology. It was accepted, therefore, that the test for refusal of surrender “must be a rigorous one”, and it was suggested that in place of the language of “flagrant denial”, the courts should adopt a test as to whether the breach was “so fundamental as to amount to a complete denial or nullification of the right to a fair trial”, or that the deficiencies established were such as to “fundamentally destroy its fairness”. This does not provide any support for the broader argument made by the IHREC and the appellant. Third, and in any event, the C.J.E.U., in its judgment in this present case, has set out the test to be applied by the national court in general, and the Irish courts in this case in particular: the court must consider whether any systemic deficiencies which are established apply at the level of the court requesting surrender and are such as in the individual case to compromise the essence of the right protected by Article 47. To that extent, the approach of the C.J.E.U. makes it clear that deficiencies as to judicial independence go to the essence of the right. This approach, at one and the same time, sidesteps the resolution of the theoretical issues just discussed and, more importantly, focusses attention on the second stage of the inquiry which is now critical and which, arguably, itself involves a two-stage test: whether the deficiencies identified are apparent at the level of the court requesting surrender and/or the court of trial, and as explicitly set out in para. 75 of the judgment, whether such deficiencies give rise to a real risk of breach in respect of the individual concerned and the particular case.
The “flagrant denial” test
74. Next, it was argued that it was clear that the Grand Chamber in L.M. had deliberately avoided use of the “flagrant denial” language which had, after all, been used conspicuously in the case up until then: first, in the judgment of the High Court and the question posed, and subsequently in the Opinion of Advocate General Tanchev. It was argued that the deliberate absence of such language indicated that the Grand Chamber did not accept a more rigorous test for refusal of surrender, and instead must be understood to be positing a less demanding standard: indeed, perhaps no more than the test of a real risk of a breach of a right protected by the Charter.
75. In Lis v. Regional Court in Warsaw, a divisional court of the High Court of England and Wales, having considered the decision of the Grand Chamber in L.M., rejected the contention that the court should adopt a lower standard (although not as low as suggested here) in line with the opinion of Advocate General Sharpston. As noted above, para. 63 of the judgment, the court observed that the CJEU in L.M.:-
“referred frequently in the course of its judgment to the potential breach of the “essence” of the applicant’s right to a fair trial [referring to paras. 59, 60, 68, 72, 73,75, and 78]. We are bound to observe that if the Luxembourg Court were seeking to draw a qualitative distinction between that concept and the oft-repeated formulation of the Strasbourg Court of a “flagrant denial of justice” it would have said so in answering question 2. In our judgment there is no sensible distinction to be made between a breach of the essence of a right to a fair trial and the flagrant denial test”.
Donnelly J. in the High Court here adopted the same approach.
76. I tend to take a somewhat different route, but which ultimately arrives at the same destination. It is clear from the judgment of the C.J.E.U. that a distinction is required to be drawn between a breach of the right and a breach of the essence of the right (although for reasons to be addressed later that distinction may not be significant in this case). This is also consistent with the structure of the Union and the relationship between the Member States and their courts, and the institutions of the Union and the C.J.E.U. The TEU creates a mechanism (recognised by the Framework Decision) for the review of the general system of application of European Union law in the Member States, and sets out circumstances in which mutual co-operation may be suspended in respect of a Member State. On the other hand, the courts of a Member State have responsibility for the investigation and determination of breaches of rights and the remedy of such breaches in individual cases. A court of a Member State requested to execute a European arrest warrant is not required or permitted to duplicate the functions of either the Commission or the Council under Article 7, or, indeed, those of the C.J.E.U. in an infringement action. It is only when a threshold is reached and it is demonstrated that there is a real risk on substantial grounds of a breach of the essence of a right that the exceptional jurisdiction to refuse surrender arises. Breach of the essence of the right means that the breach should be a “ particularly serious breach”, to adopt the neutral terms of para. 68 of the Advocate General’s Opinion, before the executing court is required to depart from the obligation of mutual trust, which normally carries with it a prohibition on checking the implementation of the Treaties (including the Charter) in any other Member State ( emphasis in original ).
77. This reasoning applies, if anything, with even greater force in this case. The structure of the Treaties establishing the European Union, and in particular Article 267 T.F.E.U., impose obligations of sincere co-operation between national courts and the C.J.E.U. The purpose of the procedure under Article 267 T.F.E.U., for example, is to allow a national court to decide a case brought before it in accordance with the law of the European Union, which incidentally has the effect of ensuring that the law of the European Union will be applied in a consistent fashion throughout the Union. The function of a national court is to identify the question of European law it considers is necessary to resolve in order to allow it to decide the case. The corresponding function of the C.J.E.U. is to answer that question and thereby provide guidance to all national courts, but importantly, to allow the national court in question to decide the particular case before it in accordance with European law. It is an exercise in practical co-operation, and not in semiotics, hints, or hidden signals. The judgment of the C.J.E.U. in an Article 267 T.F.E.U. reference is to be understood in the context of the procedure before the national court and the questions raised. As the trial judge observed, in particular, the standard to be applied was not a live issue in the proceedings before her at the time the reference was made. Accordingly, the C.J.E.U. was not requested to decide that issue or to make any observations on it.
78. It is clear that the C.J.E.U. did not employ the language of flagrant breach in its judgment, and it is reasonable to assume that this omission was advertent. It may be possible to deduce from the absence of any reference to the language of flagrant breach a doubt as to the precision of such language for use in national courts, or a concern that the emphasis on flagrancy might lead to an erroneous concentration on the manner rather than the nature of the breach, or, indeed, merely a desire not to express any definitive view on a linguistic and terminological issue which did not arise for determination in the proceedings before the Irish court. But, it cannot sensibly be read as an indication, sub silentio, of the adoption of a dramatically different standard, since that would be both to provoke uncertainty among national courts and to give rise to the very real possibility that the national court, unaware of the significance being attached to the change of language, would decide a case otherwise than in accordance with the law of the European Union and, moreover, in a way which diminished the protection of fundamental rights required to be protected by the Charter. If, therefore, there was a risk that the standard to be applied by the Irish court was not that required by European law, then it is to be expected that the court would have said so in clear terms. But, more importantly for the reasons already addressed, the debate is somewhat beside the point. The decision of the C.J.E.U. makes it clear, that a breach of judicial independence is a breach of the essence of the right.
79. I agree fully with the High Court judge that, in truth, this issue cannot be said to have been live or in dispute in the case. Moreover, it seems to raise an issue that distracts attention from the guidance given by the C.J.E.U. for the resolution of this case, and risks leading to misunderstanding in future cases. That is because the C.J.E.U. made it clear that a breach of the right to an independent tribunal was itself, therefore, a breach of the right guaranteed by Article 47 C.F.R.E.U. to a fair trial before an independent and impartial tribunal. Thus, in para. 47 of the court’s decision, it is recorded that a court is required to determine if there is a real risk of a breach of an individual’s fundamental right to an independent tribunal and therefore of the right to a fair trial. Again, it was said at para. 48 of the judgment that “the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial ( emphasis added )” and, at para. 54, that “the independence of national courts […] is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism ( emphasis added )”. The court repeatedly emphasised that the executing court must consider if the individual will suffer a breach of “his fundamental right to an independent tribunal and, therefore , of the essence of his fundamental right to a fair trial ( emphasis added )”(paras. 59, 73, 75, and 78, and to similar effect, para 47). Deficiencies may affect the independence of the judiciary “ and thus […] compromise the essence of [the] fundamental right to a fair trial ( emphasis added )”(para. 60).
80. The issue of a possible distinction between “flagrant breach” and “breach of the essence” was raised for the first time when submissions were made after the judgment of the C.J.E.U. was received. The fundamental and consistent case made by the appellant at all times had been that the systemic changes in the administration of justice in Poland, whether on their own or in conjunction with the other matters referred to in this case, were such as to satisfy the threshold required, however expressed, so that surrender should be refused. The C.J.E.U. made it clear that findings of generalised or even systemic deficiency were not sufficient. It was also necessary to show that those deficiencies were present at the level of court from which the European arrest warrant had issued, and before which the individual would be tried or sentenced. But, even then, it was necessary to go further and show specifically and precisely that there are substantial grounds for believing that, following his surrender, the requested person will run that risk (of a breach of the right to an independent and impartial tribunal, and therefore of his right to a fair trial) in fact . The judgment proceeds on the basis that if the appellant were to be tried before a court that was not independent, that would be a breach of the essence of the right under Article 47, but what was required was not merely that the system in general be shown to have deficiencies, even serious ones, but specifically that the trial of the individual on the particular charge would not be a trial before an independent court. That could be because of the nature of the charge, the identity of the accused or the nature of the court It is necessary to turn to that issue now.
Decision on surrender
81. It should be said that the test posited in the judgment of the C.J.E.U. is not one that is easy to apply. Normally, it might be said that where systemic deficiencies of any kind are identified, it becomes unnecessary to identify the possibility of those deficiencies taking effect in an individual case. This is particularly so where the value concerns one that is essential to the functioning of the system of mutual trust. Indeed, it was this difficulty that led the trial judge to make the reference to the C.J.E.U. in the first place. It may also be questioned, at least in the abstract, whether once such systemic deficiencies have been found there is then room or need for further inquiry. It is not, however, for the national court to interrogate the logic of the reasoning of the C.J.E.U. This is a difficult and unprecedented situation where the C.J.E.U. has set out the steps to be taken by the national court. It is unmistakable that the national court is required to conduct the second step of the Aranyosi and Căldăraru analysis. It is also inescapable in the logic of the judgment of the C.J.E.U. that it is possible that there should be systemic deficiencies apparent at the level of the court before whom the individual is to be tried and, yet, for it to be determined that surrender should not be refused because it has not been established that those deficiencies will operate at the level of the individual case, having regard to the person charged, the offence with which he is charged, and the factual context which forms the basis of the European arrest warrant (para. 75 of the L.M. judgment).
82. There are, perhaps, good reasons why this should be so. The problem posed for the European Union by systemic changes in a Member State, apparently inconsistent with fundamental values of the Union, is one which may require a co-operative and coherent response from all the institutions of the Union. The national court faced with a request for surrender is a court of the Union, but it is not intended to have the primary role in the enforcement of the fundamental values of the European Union in another Member State. Refusal of surrender under the Framework Decision by one Member State can only be one part of the response of the European Union to issues concerning the rule of law in another Member State and why the national court may be required to focus precisely on the particular circumstances concerning the individual whose surrender is sought, and the offences for which they are sought to be tried.
83. The matters identified in the respective judgments of the High Court are substantial and grave issues which require careful consideration. Apart from the difficulties and discomfort involved in attempting to analyse the system in another Member State, there are significant difficulties in applying a test which requires not just a breach but a breach of such a degree as to reach a particular threshold. That necessarily involves a qualitative assessment and there is always a real risk that individual incremental breaches will not themselves be seen as sufficiently serious but could collectively amount to a gradual erosion and removal of the essence of a right required to be protected. While, here, it is clear that a finding that the tribunal in question lacks independence is a breach of the essence of the right, the judgment of the C.J.E.U. requires an inquiry which focuses on the individual case and seeks to draw connections between the systemic deficiencies identified and the particular case. This can arise because of the nature of the deficiency itself, or the particular charge, or the particular individual concerned. For this reason, the High Court sought further information in particular as to the impact of the legislative changes concerning the removal and replacement of court presidents at the regional court level.
84. In this case, the decision of the C.J.E.U. on the reference by the High Court and the subsequent decision in Commission v. Poland are both instructive. The obligation of trust and confidence is a basic requirement, and normally requires surrender and prohibits any exercise by national courts in the checking or assessment of the legal system of another Member State. Exceptionally, however, an executing court may be required to consider if there has been a breach of the essence of a right or a flagrant denial of the right of such a degree as to require that court to refuse to surrender. Such an exception must be interpreted strictly. The independence of a court is an important component of any fair trial. Moreover, it has both external and internal aspects. Independence is necessary for impartiality in the particular dispute, but it is not limited to that. It involves independence from outside bodies or, indeed, internal hierarchical structures. This aspect of independence is plainly in issue in this case. The independence of a court is of the essence of the right to a fair trial. All of this emphasises the significance of any finding of a breach of independence even at a general level.
85. I would tend to agree with the trial judge that the possibility that systemic deficiencies in a particular system could, by themselves, amount to a sufficient breach of the essence of the right to a fair trial, requiring an executing authority to refuse surrender, cannot and should not be ruled out in the abstract. That could occur, for example, where the deficiency identified at a systemic level is so far-reaching and pervasive as it would plainly and unavoidably take effect in the requesting court, and on any individual trial on a particular charge. However, I also agree with the trial judge that it is clear from the judgment of the C.J.E.U., that the systemic changes in Poland, while undoubtedly both serious and grave, cannot themselves be seen as sufficient to reach that point in this case. This follows from the fact that the changes referred to in the reasoned proposal apply in different ways at different levels of the Polish courts system and the C.J.E.U., being fully apprised of the relevant changes, considered that the referring court was nevertheless obliged to consider whether the identified deficiencies reached the level of the court before which the person would be tried, and, furthermore, was obliged to conduct a specific and precise evaluation of the individual case. Here, further information about the operation of the changes at regional court level was forthcoming and indicated that presidents and vice-presidents had been dismissed in at least 130 cases, one of which was the regional Court of Wloclawek, which was itself one of the requesting courts in this case. However, there was no evidence, even anecdotal, suggesting such changes had affected the hearing or determination of charges generally or, more specifically, charges such as those involved in this case. Furthermore, there was no evidence of the impact of any of the criticised changes upon trials conducted in any of the three regional courts involved. It appears, therefore, that although there was clear evidence of breach of Poland’s Charter and Treaty obligations (as indeed the C.J.E.U. found in Commission v. Poland) and further evidence leading the trial judge to conclude that a breach of the principle of independence did operate at the level of the courts involved, the available evidence did not, on its own, satisfy the third stage of the test set out by the C.J.E.U. of requiring a real risk that the impact of the legislative changes would mean that this appellant would be tried before a court that was not independent and would therefore suffer a breach of the essence of his right to a fair trial.
86. In this case, however, there are significant additional factors which must be considered. These principally concern the fact that some of the systemic deficiencies identified concern the power of the Minister of Justice in relation to the court system. In addition to this, there are the clear statements made by the Deputy Minister of Justice about the appellant. These statements, in themselves, are matters which would give rise to considerable concern in their own terms. In a common law system such as that which operates in this jurisdiction, when trials of serious offences are conducted with a jury of lay persons, such comments would probably give rise to application to stay the trial for a lengthy period, if not indeed permanently, because of the risk to a fair trial. It is not suggested, however, that the appellant here would be tried, if surrendered, before a jury which might be affected by hostile commentary. In that regard, it is significant that Judge Gaciarek, in particular, discounts the statements as little more than the type of statement made by a politician. On the other hand, they are statements made by a Deputy Minister in a department which itself has acquired considerable power in relation to judges as a result of the changes complained of. Furthermore, these are statements concerning the precise individual case, and thus have the effect of raising this case out of the general run of cases in which allegations of criminal conduct are made. In this regard, it is noteworthy that one of the factors considered relevant by the European Commission, and accepted by Advocate General Tanchev, was the making of statements by “the powers that be”.
87. Ultimately, however, I have come to the conclusion that the trial judge was correct to conclude that this threshold had not been reached. Like her, I must give considerable weight to the observations of Judge Gaciarek whose comments are themselves an impressive exercise in judicial independence. While raising serious concerns about the systemic changes effected in Poland in recent years, he discounts the impact of any such statement made in the resolution of litigation in the Polish courts, and in particular the courts in his jurisdiction. Furthermore, he also discounts any possible impact of the changes at the level of president or vice president upon such a trial. The power to refuse to execute a European arrest warrant is an exceptional one which must be strictly construed. While, therefore, the matters set out in the Reasoned Proposal and the decision in Commission v. Poland and elaborated upon in the report received by the High Court from the Polish lawyers are undoubtedly extremely serious, the approach of the C.J.E.U. means that they cannot of themselves be considered sufficient in this case to require the court to refuse to execute the warrant without a specific finding that the appellant would run a real risk of trial before a court that was not independent and therefore of a breach of his fair trial rights. Again, while the individual features of this case are undoubtedly troubling, I agree with the trial judge that, in the light of the evidence, they do not bring the case over the threshold. On the evidence adduced, the statements made cannot lead to the requisite finding on an individual basis that there is a real risk that that the appellant will suffer a breach of the essence of his right to a fair trial. It is, however, necessary to observe that no court, in any jurisdiction, operating under an obligation of impartiality and independence and obliged to refrain from involvement in public controversies, should be subjected to irresponsible or abusive commentary from governmental or official sources. This is particularly so where the court which is the subject of the commentary is considering the effect of changes to a judicial system which are alleged to make the judicial system subordinate to and subject to the influence of the executive and the legislature.
88. It is of the essence of the test which the national court is required to apply that once there has been a claim of a generalised or systemic breach of independence, there must nevertheless be an individual, specific and precise determination of whether that, in the particular case, on its own or in conjunction with other factors, amounts to a breach of the essence of the right to a fair trial. The dangers of relativism already adverted to suggest that it is desirable to indicate what matters could be taken into account which might lead to a conclusion that surrender in respect of a European arrest warrant from a Polish court should be refused. Among the matters to which weight may properly be given, and which might affect that determination, are: whether further changes are made to the structure of the administration of justice in Poland affecting the court of trial; the manner in which the reasoned proposal in accordance with Article 7(1) TEU may proceed before the Council; the response of the Republic of Poland to that proposal and indeed to decisions such as that in the recent case of Commission v. Poland. A court would be entitled to have regard to any evidence of the practical impact of the legislative changes already made on court hearings and decisions in Poland at the trial level, and any evidence in relation to trials of particular classes of offence or defendants. It must also be recalled that, under para. 78 of the judgment of the C.J.E.U., when a court is required to consider the impact of systemic changes on the individual sought for trial on particular charges, a court is obliged to refuse surrender (“must refrain”), when the information does not “lead [ the court ] to discount the existence of a real risk that the individual concerned will suffer in the issuing Member State a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial”. In that regard, the progress of this particular case, which has attracted such attention, may itself be instructive. However, on the evidence currently before the court, and applying the approach of the C.J.E.U., I conclude that the trial judge was correct in her determination, and I would accordingly dismiss the appeal.
Minister for Justice v McGrath
, [2005] I.E.H.C. 116
JUDGMENT of Macken, J. delivered on the 16th day of March, 2005
This is an application pursuant to the provisions of s. 16 of the European Arrest Warrant Act, 2003 (hereinafter referred to as “the Act of 2003”), for the surrender of the respondent to the United Kingdom, pursuant to a European Arrest Warrant.
The Act of 2003 gave effect to a Framework decision of the Council of the European Communities, of 13th June, 2002 on the European Arrest Warrant and provided for a procedure to exist in that regard between member States of the European Union. The terms of the Council Framework decision are set out in the schedule to the Act of 2003. The definition of the European Arrest Warrant and the obligation to execute it which appear in Article 1 of the Framework Decision itself are set out as follows:
“1. The European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on the European Union.”
To understand the manner in which the system works, certain terms should be noted. The warrant is issued by an “issuing authority” which is a judicial authority in the Member State which issues the warrant seeking to have the person surrendered. The warrant, which is in a technical format, is sent to the authorities in the country from which the person named is sought to be surrendered. In this jurisdiction the Minister for Justice Equality and Law Reform is the “central authority”, within the meaning of the Framework decision, as implemented by the Act of 2003. The High Court is designated, pursuant to s. 9 of the same Act, as the “executing judicial authority” in the State. The central authority, that is to say, the Minister, makes an application to the High Court to have the European Arrest Warrant or a facsimile copy of the warrant endorsed for execution and it may then be executed pursuant to the Act of 2003, by a member of An Garda Siochana.
Further, 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, and may not be handed over to a non Member State, save with special permission of the courts in the executing state. In that regard, the Framework decision provides for certain undertakings to be made available by the issuing authority, in conjunction with the warrant.
For the purposes of this case, the issuing Member State authority is the United Kingdom.
The Facts
On 12th October, 2004, Christopher Leslie Pratt, a District Judge of the Magistrates’ Courts, at 28 Bow Street, London WC2E 7AS, England, in his capacity as a competent judicial authority, issued a European Arrest Warrant for the arrest and surrender of a person named in the warrant for the stated purposes of conducting a criminal prosecution and/or sentencing following conviction or of executing a custodial sentence or detention order. In the present case it is clear that the primary purpose is to prosecute the person sought.
The warrant, in facsimile copy form, was endorsed for execution in this jurisdiction by Order of The High Court (Peart, J.) dated 7th October, 2004.
Following the said endorsement, the warrant was executed in Co. Donegal on 18th October, 2004 by a member of the Crime Branch, Garda Headquarters, Sgt. Martin O’Neill, who on that date arrested the person whom he believed at the time to be the person named in the warrant, who was then held at Buncrana Garda Station overnight, and on 19th October was brought before the High Court in accordance with the provisions of s. 13 of the Act.
On that occasion, this Court, being then satisfied that the person arrested and brought before the Court was the person in respect of whom the European Arrest Warrant was issued, remanded the respondent on bail..
The offences specified in the warrant are those of rape, indecent assault and gross indecency against a girl under the age of 14, in the United Kingdom. The rape offences carry a sentence of life imprisonment, the indecent assault offence 10 years and the gross indecency offences 2 years to 10 years depending on the dates of the offences.
Section 16(1)(a) of the Act of 2003 provides as follows:
“(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under s. 15(9), the High Court may, upon such date as is fixed under s. 13, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her”
provided that –
(a) the High Court is satisfied that the person before it is the person in respect of whom the European Arrest Warrant was issued (emphasis added)
The respondent did not consent to his surrender. Points of Objection dated 8th November, 2004 were delivered and filed on his behalf, and the respondent swore an affidavit on 9th November, 2004. In the Points of Objection the respondent pleads inter alia, that:
(a) the warrant is fundamentally defective and/or bad on its face, in particular because
(i) s. (a) of the warrant contains details that are factually incorrect and refers to documentation that is either defective, unsupported or unsubstantiated,
(ii) it relates to a person other than the respondent, and
(iii) details on the copy warrant furnished are illegible.
(b) the warrant is bad and defective in that it lists among the offences those of gross indecency for which there is no corresponding offence in Irish law.
(c) there is no evidence of the decision supporting the purported warrant in that no copy of the warrant of arrest dated 26th February, 2004, issued at Basingstoke Magistrates Court, referred to in s. (b) as being the decision on which the warrant in the present proceedings was based was made available..
Insofar as the respondent’s affidavit is concerned, the salient parts of this concern the dates of birth given, and the photograph relied upon by the applicant. He denies that he has ever used the date of birth in 1933 appearing in the warrant, and he also denies that the person in the photograph attached to the warrant is him.
Before dealing with the legal submissions on behalf of the respective parties, there are two further matters I wish to refer to. The first concerns the above affidavit of Sgt. O’Neill sworn on a date in October and filed on the 29th October 2004. Since the key issue in these proceedings is whether the respondent is in fact the person in respect of whom the warrant has issued, I should set out relevant passages in the affidavit of Sgt. O’Neill. He stated, inter alia:
“3. On 18th October, 2004 I was on duty in the Burt area of County Donegal and had the European Arrest Warrant for the arrest of Cathal Mc Grath in my possession. The warrant had been received from the United Kingdom authorities and had been endorsed by the High Court for execution.
4. I went to an address at 291 Moness, Burt, County Donegal. There I met a man whom I believed to be Cathal McGrath. I introduced myself to him by producing and showing him my official Garda identification card and telling him my name, rank and station.
5. I asked him “are you Cathal McGrath?” to which he replied “Yes.” I then asked him “is your date of birth 19th February, 1953?” to which he replied “Yes.” I also asked him “do you use the date of birth 19th February, 1933?” to which he replied “no”. I next asked him “are you of Moness, Burt, County Donegal?” to which he replied “yes”. I further asked him “did you live at 94 Worting Road, Basingstoke, Hampshire, England?” and he replied “Yes”.
In the final paragraph of that affidavit, Sgt. O’Neill avers in the following terms:
“7. I then served Cathal McGrath with a copy of the European Arrest Warrant and a copy of s. 15 of the European Arrest Warrant Act, 2003. I then asked him the question ‘Do you know the girl Sarah Bartlett?” and he replied “I do but this is a load of bollocks…”
As to the second matter, after the Points of Objection and the affidavit of the respondent were served, two affidavits were sworn on behalf of the applicant. One was sworn by Richard Edwin Glenister on 7th December, 2004 and one by Sgt. Matthew Longman on 14th December, 2004. They too contain certain relevant information.
As to the latter, Sgt. Longman says he is currently serving in the Devon & Cornwall Constabulary. Prior to then he served for six years in the Hampshire Constabulary and spent the first of three of those years in Basingstoke. During this time, he avers:
“… my duties lead me to arrest a male by the name of Cathal McGrath after I found him to be in possession of a controlled substance in Basingstoke Town Centre. Having arrested Cathal McGrath, I transported him, interviewed him and then took his fingerprints and photograph.”
Sgt. Longman then referred to an exhibit of a copy of the photograph in question, but no such exhibit (or exhibit sheet) was actually attached to the copy affidavit furnished to the court or subsequently presented to court, and then continued:
“I understand that Mr. McGrath contests this is a photograph of him and I can confirm that it is the photograph and a true likeness of the male I dealt with on 20th February, 1999 who gave the name Cathal McGrath.”
He continued:
“I beg to refer to a copy of the custody record in respect of the arrest of Cathal McGrath on 20th February, 1999. As appears therefrom, he gave his place of birth as Donegal, his date of birth as 19th February, 1953 and his then address as 94 Worting Road, Basingstoke.”
Although referred to, no custody record was exhibited by him to his affidavit. As to the absence of these two documents from this affidavit, while no explanation was tendered, I believe it is explained by the fact that Sgt. Longman is no longer based in Hampshire, and, as will be seen, a copy of what is said to be the same photograph has been exhibited by the next deponent.
Mr. Glenister in turn averred to the fact that he is a barrister employed as Crown Prosecutor by the Crown Prosecution Services, and “is responsible for the extradition of the respondent in the proceedings”. He swore as follows:
2. “On 20th February, 1999 Police Constable Matthew Longman … arrested a male by the name of Cathal McGrath after he found him to be in possession of a controlled substance in Basingstoke Town Centre, in Hampshire and then took his fingerprints and photograph.”
Mr. Glenister then exhibited a copy photograph and confirmed that the photograph attached to the European Arrest Warrant issued on 6th August, 2004 is “a further copy of the same one”.
On this basis, I accept that the copy photograph to which Sgt. Longman referred is probably that exhibited by Mr. Glenister, or if not, it is no different. He then continued:
“3. The custody record in respect of the arrest of Cathal McGrath on 20th February, 1999 shows that Cathal McGrath gave his place of birth as Donegal, his date of birth as 19th February, 1953 and his then address as 94 Worting Road, Basingstoke.
4. In addition to the matters set out above, I confirm that in her witness statement, on 4th October, 2002, Mrs. Bartlett (the mother of the complainant in this case) states as follows: ‘I learnt from Cathal that he was from Donegal in Southern Ireland … I can describe him as late 40s, approximately 5’7″, skinny, greying hair and he had a front tooth missing.’ I say and believe that this description corresponds with the description obtained from the police national computer following the arrest of Mr. McGrath by Police Constable Longman on 20th February, 1999. It is of the same person.
5. I therefore say and believe that the person arrested in Basingstoke by Police Constable Longman in 1999, whose details appear on the European Arrest Warrant in this application, is one and the same as the Cathal McGrath arrested by Sergeant Martin O’Neill on 18th October, 2004 and the person that is before this Honourable Court.”
I have set out in some detail the actual content of these affidavits, as the conclusions sought to be drawn from them by the applicant are heavily contested by the respondent. My understanding of the averments of Mr. Glenister and of Sgt. Longman, as well as from my enquiry of counsel for the applicant, is that, both the copy photograph attached to the warrant as well as the copy photograph exhibited in Mr. Glenister’s affidavit, are taken from the photograph appearing on the United Kingdom national police computer, and that the source of the photograph on the national police computer is the photograph taken by Sgt. Longman in 1999 on the arrest of the man he refers to in his affidavit.
To complete the factual context in which the arguments of counsel are placed, I need to refer also to parts of the warrant itself and to the additional material attached to it. It is in a standard printed form, with space for additional typed matter to be inserted.
In s. (a) the person is clearly named as “Cathal McGrath”. As his residence or last known address is typed “Monasa, Burt, Donegal, Ireland formerly of 94 Worting Road, Basingstoke, Hampshire, England.” In the part marked “Date of birth” there is recorded “19.2.1953 (has also given 19.2.1933)”. And finally, in this section of the warrant there is a subsection providing for photographs or fingerprints, and typed in this section is “photograph attached.”
What has been furnished under this last item is an extremely unclear, dark and muddy copy of what is obviously a photograph. This appeared on a single sheet of paper, without identification as to name, provenance or otherwise. It is simply a copy of a photograph placed on plain paper.
Subsequently, after service of the Points of Objection and the respondent’s affidavit, however, a further but only very slightly clearer copy photograph was exhibited in Mr. Glenister’s affidavit, This included additional material in the form of details inserted into a printed box under the photograph. The additional material is the following:
Surname McGrath ++ BB
5
8
9
First Names Cathal Cathal
D.O.B. 19/02/33 N Date 20/02/99 Date 20/02/99
In the course of the hearing, I enquired of counsel for the applicant whether this additional information also appears on the actual computer from which the print attached to the warrant was taken, because Mr. Glenister had said in his affidavit that the photograph attached to the warrant was “a further copy of this same photograph”, and “that the description given by the complainant’s mother corresponded with the description obtained from the police national computer”. It was confirmed to me by counsel, after enquiry, that this was the case.
In addition to the copy photograph attached to the warrant, but not referred to at all in s. (a) or elsewhere in the warrant, there were furnished copies of two pages of palmprints and fingerprints. It is clear that these formed part of the warrant as sent because the facsimile series of ten pages constituting the warrant and its attachments, including these two pages, are all head “29.09.2004” and were sent between 15.30 and 15.31 and are indicated as consisting of eleven pages, (including a cover page, the first page of the warrant being marked page 002).
As to these I will return to them in due course. However, at this point in the judgment it is sufficient to say that the document contains the name “Cathal McGrath” with no address, present or former, and no nationality, and a typed date of birth of “19.02.1933”.
Legal Submissions
Mr. Robert Barron, B.L. for the applicant referred the Court to the various matters which are required to be satisfied under the Act of 2003 in order for the Court to make the order sought in respect of the respondent. In that regard he relied on the affidavit of Sgt. O’Neill to which I have referred, as to the formalities of the arrest.
Having addressed the court as to the form of the European Arrest Warrant, he submitted that it conformed with that provided for in the Framework decision, and of the Act of 2003.
On the question of the offence of gross indecency which the respondent had claimed did not exist in this jurisdiction, he argued that while such an offence does not exist under that designation or name in the State, nevertheless the same facts described, including force or threats of unlawful force as described, do constitute an offence in this jurisdiction, the penalty for which was established by statute, and in that regard he relied on the case of DPP v. Doolan [1993] I.L.R.M. 387. He argued therefore that the warrant could not be attacked on the ground that there is no corresponding offence in the State to that of gross indecency in the United Kingdom.
Mr. Barron submitted that all of the requirements of s. 16 were met in the present case, including the necessary undertakings referred to in the warrant. The undertakings were before the Court. He submitted that District Justice Pratt had certified in the proper manner to the receipt by him of the necessary undertakings. The first of these was signed Caroline Flint, Undersecretary of State to the effect that the person sought, if surrendered, would not be extradited to a non Member state of the European Union, and the second of them, signed by Mr. Ken McDonald, QC, Director of Public Prosecutions undertook that he would not be tried for other prior offences. Mr. Barron said that these undertakings complied fully with ss. 22 and 24 of the Act.
He contended that on foot of the affidavit of Sgt. O’Neill, the respondent is the person sought to be surrendered, and is the person described in the warrant. He submitted that this complied with the list of requirements or criteria referred to in the case of Crowley v. Director of Public Prosecutions [1990] I.L.R.M. 220.
Mr. Whelan, S.C. on behalf of the respondent took a diametrically opposed view to that of Mr. Barron, and submitted that the warrant was, in fact, fundamentally flawed. He referred firstly to the insertion of the phrase at the date of birth section “(has also given 19.2.1933)”, and submitted that there was a clear question as to why this had been included without explanation. He submitted that a person born in 1933 would now be 71 years old, and that it was inconceivable that the respondent could be a person of that age. The respondent had always, he said, given his correct age, and according to his affidavit had never given his age as 19.2.1933. And further, the respondent denied he was the person in the photograph attached to the warrant.
He argued that since the judicial authority seeking the surrender of the respondent had the respondent’s Points of Objection and his affidavit before the affidavits of Mr. Glenister and of Sgt. Longman were sworn in response, the discrepancy in age ought to have been fully explained to the Court by reference to the statement made in the warrant itself.
Next, Mr. Whelan addressed the issue of the copy photograph furnished with the warrant. In the present case, what is presented, he said, is a poor photocopy of a person, totally black, and with nothing at all to attach or connect the person in the photograph to any person sought to be surrendered, and certainly nothing to attach it to the respondent.
In referring to the copy of the photograph exhibited in Mr. Glenister’s affidavit, and the additional material exhibited in it, he submitted that if the judicial authority seeking the surrender of a person, and in support of that chooses to present fingerprint or photographic material, there should be no ambiguity about what is presented. However, he argued, both the photograph exhibited by Mr. Glenister as well as the fingerprint pages sent with the warrant in fact refer to a person born on 19th February, 1933, that is to say a person, who in 1999 when allegedly photographed and fingerprinted, was 69 years of age, which, he said, could not be the respondent, even on the description furnished by the complainant’s mother, as contained in Mr. Glenister’s affidavit.
Mr. Whelan contended that while there is a presumption in favour of the warrant, pursuant to s. 12(9) of the Act of 2003, that presumption extends only to the warrant itself. According to counsel for the respondent, all other documents relied on should be subject to an appropriate affidavit as to the chain which connects the document with the person sought to be surrendered. If that presumption were wider, he argued, it would be possible to attach anything to the warrant, without any proof. The same principles, he argued, therefore, apply as applied in former extradition cases, that is to say, the penal onus of proof, and he invoked also the decision of Peart, J. in the case of Minister for Justice equality and Law Reform v. Landi Gokano, also known as Florenc Bita, (Unreported) 20th July, 2004, in support of his contention that in cases such as this it is extremely important that obligations imposed on the party seeking extradition, are complied with strictly.
He submitted further that when an issuing authority chooses to include documents, as here, which lead to confusion which is not subsequently addressed, as it was not here, notwithstanding that the content of those same documents was part of the very basis for the respondent’s refusal to consent to surrender, then further confusion is caused by the absence of any explanation, such that the Court cannot be satisfied that the respondent, in this case, is the person named in the warrant.
Turning to the offences, while he accepted the rape offence causes no difficulty, and the facts described could constitute sexual assault, he argued that a problem arises not only in relation to the offence of gross indecency, but also as to the issue of duplication of offences. In regard to the latter, he says that offence 6 is the same as offence 11, 7 is the same as 12, 8 is the same as 13, and so forth. This he said is not permissible in law. He disagreed with Mr. Barron as to the existence in the State of an offence corresponding to an offence of gross indecency in the United Kingdom.
Finally, Mr. Whelan contended that the undertakings were not in a form acceptable for the purposes of the Act of 2003, and also that the underlying warrant alleged to have issued in Basingstoke, and referred to in s. (b) of the arrest warrant had not been furnished to him, despite requesting this, and despite the recommendation by Peart J. on the 19th. October that this warrant should be made available to the respondent.
In reply, Mr. Barron submitted that notwithstanding the submissions made by counsel on behalf of the respondent, the affidavit of Sgt. O’Neill was always sufficient to establish that the respondent is the person sought in the warrant. On the other hand, as to the photographs furnished, he accepted that if they caused real difficulties, then the order could probably not be made. However, he argued that notwithstanding the unsatisfactory way in which these photographs were presented to the Court, if the Court was nevertheless satisfied that the respondent is the person named in the warrant, that would permit the court to surrender him.
He made further argument on the offence of gross indecency, and as to the alleged duplicate offences, submitting that the same facts could properly give rise to charges in respect of more than one offence, and therefore there was no duplication of the type alleged on behalf of the respondent.
And finally, he argued that the respondent did not actually say he is not the person sought.
Conclusions
In this case, while a number of issues have been raised, the kernel of the matter is the dispute between the applicant and the respondent as to the identity of the person sought in the warrant, and as to whether that person is the respondent. If the Court is satisfied that the respondent is the person in respect of whom the warrant issued, then I must make an Order that the respondent should be surrendered to the issuing authority, or its nominee. On the other hand, if I am not so satisfied, then it follows that I cannot make the order sought.
There are two initial issues to be considered in relation to this application. One is the nature of the proceedings in which this court is engaged, in this context, and the second is to decide what is meant by the court being “satisfied” within the meaning of S. 16 of the Act of 2003 that the respondent is the person in respect of whom the warrant was issued. Concerning the first issue, is the nature of the proceedings such that the court is engaged in a simple examination of what has been presented by the applicant in support of the warrant, or the respondent against the warrant, in typical adversarial manner, and either on the criminal or civil standard of proof, or should the Court satisfy itself by its own independent or additional enquiries of counsel or of witnesses, if necessary, that the respondent is the person in respect of whom the warrant issued and on what standard of proof?
As a starting point it seems to me that Article 2 of the Framework decision sets out clearly the basis upon which Member States shall execute any European Arrest Warrant, namely on the basis of the principle of mutual recognition. This is a well established as a principle of Community Law, and if applied correctly envisages one Member State accepting that authorities in another Member State have exercised or carried out their obligations in an appropriate manner and to an appropriate standard, so that it is no longer necessary for the authorities in the second Member State to embark on a second separate independent enquiry into the same matters.
Moreover, the sixth recital to the Framework decision itself declares that it is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation, and the tenth recital declares that the mechanism of the European arrest warrant is based on a high level of confidence between Member states.
In the present case, the Court must therefore commence its exercise confident, prima facie, in the belief that the issuing authority in the issuing Member state carried out its exercises and enquiries for the purposes of the warrant and of any undertakings given, with all appropriate care. That is the essence of mutual recognition.
If nothing therefore arises from the documents, materials or evidence presented which might put in issue that confident belief, then it is not part of the executing judicial authority’s role to gainsay the warrant or the materials or evidence presented therewith.
However, while, the warrant should be accepted on that basis, if, in the event of an objection to surrender being made by the person arrested, it becomes evident in the course of the hearing concerning that matter, that confusing or contradictory materials have been presented which thereby put in issue the identification of the person in respect of whom the warrant issued, it is proper for the executing authority to look at those ambiguities or conflicting materials so as to be satisfied, pursuant to s. 16 of the Act of 2003, that the person before the court is nevertheless the person in respect of whom the arrest warrant has issued.
When doing so, it seems to me that the type of investigation which the court is engaged in, in the circumstances which arise in the last paragraph, is no different to that which previously existed in the State pursuant to then extant legislation on extradition. In that regard I gain considerable assistance and guidance from the decision of the Supreme Court in Attorney General v. Parke, (Unreported) 6th December, 2004, and in particular the judgments of Murray C.J., and Denham, J. As Murray, C.J., pointed out, the enquiry is not of an adversarial nature, but rather is in the nature of a sui generis enquiry. At page 11, he stated:
“… I should first of all state the obvious, namely, that although extradition may entail serious consequences for a person subjected to it, such as the loss of liberty, extradition proceedings are not a criminal process and are not in the nature of a criminal trial. The burden of proof of facts which may rest on the applicant in these proceedings is not that of a criminal trial. … An extradition proceeding, pursuant to the relevant Acts, has its own special features which in a certain sense makes it sui generis.”
And it is clear why the Court considered it be so. Referring to the judgment of Walsh, J. in Wyatt v. McLoughlin [1974] I.R. 378 in which he had considered the nature of extradition and its provenance in, inter alia, treaties, Murray C.J. continued:
“These reciprocating arrangements referred to by Walsh J. may arise from bilateral arrangements or, as is more often the case nowadays, multilateral treaties”.
As to the arrangements then existing between Ireland and the United Kingdom, he said:
“The role of the requested State, indeed its duty, is to give effect to a lawful request from a requesting State once it is determined that the request fulfils the criteria laid down by the relevant legislation.”
In the judgment of Denham, J. in the same case Attorney General v Parke, supra, she stated, regarding the nature of the enquiry:
“The role of the trial judge in an application for an order of extradition is unique. The hearing is not a criminal trial, in the adversarial sense, where the State must prove the guilt of the accused beyond all reasonable doubt. Nor is it a civil case between parties. It is a unique procedure where the court holds an inquiry as to whether the criteria set out in the Extradition Act 1965, as amended, has been met. Further this law has been established against the backdrop that the State has entered into an agreement with the requesting State that there be extradition arrangements between the two States. Thus these cases are founded on the comity of nations and the comity of courts.”
Notwithstanding that these extracts refer to the position arising under treaties or arrangements existing prior to the Framework decision and the Act of 2003, they nevertheless make clear how I should approach the enquiry in this case, arising from obligations flowing, not merely from a bilateral or multilateral treaty, but from the Council Framework decision itself.
Having regard to the foregoing, I am satisfied that, contrary to what the respondent contends for, this is not an enquiry in which there is an onus on the applicant to prove beyond reasonable doubt that the respondent is the person sought to be surrendered. Nor is it appropriate, as was stated by Denham J. in the above case, to adopt the civil standard of proof “on the balance of probabilities”, although this might be closer to what is apt. In my view the obligation on the court is to take full account of the warrant and the accompanying materials and affidavits filed and make all appropriate enquiries which I consider necessary, including, pursuant to the Framework decision, requesting further information from the issuing authority, with a view to reaching my decision as to whether the respondent is the person in respect of whom the warrant issued.
As to what is meant, in that context, by “satisfied” in Section 16 of the Act of 2003, it means, I believe, no more than that the court should be in a position to make up its mind, on the facts and materials presented and/or on its own enquiry, and come to a conclusion on the matter before it, without having a genuine or reasonable doubt in that regard. It may well be that, in the course of the exercise, certain doubts will arise in relation to one or more of the facts or materials before the court, but overall those doubts should not be of a nature to prevent the court coming to a view which is conclusive and certain on the decision required
Having regard to the foregoing, I will now deal with the warrant first. The name of the person sought is clear and unambiguous. So also the sex and nationality indicated. Not so, however, the last known address of the person. In the copy warrant which is of very poor quality indeed, it appears to me to be “Monasa”, Burt, Donegal, Ireland. In his affidavit sworn in these proceedings, concerning the arrest of the respondent, Sgt. O’Neill gives the address at which he found the respondent as “291 Moness”. I am prepared to accept that what I have indicated as being the address, appearing in the poor copy facsimile warrant before the Court, might be “Moness”, and not “Monasa”, but there is certainly no number. On the other hand, the respondent accepted that he resided at “Moness”, although without any number attached. .
I do, however, note that Sgt. O’Neill did not aver to knowing the respondent personally, and I note also that nowhere in any of the other materials furnished in support of the warrant, or in the affidavit evidence presented is there any indication of any address in the State for the person in respect of whom the warrant issued, the only information being that a person on being arrested in Basingstoke England had given as his place of birth “Donegal”, according to the affidavits of Mr. Glenister and of Sgt. Longman, and “Donegal Southern Ireland”, according to the mother of the complainant, as averred to also in Mr. Glenister’s affidavit.
While I have some doubts about this aspect of the matter, on its own, these doubts are not such as to prevent me coming to a definitive conclusion on the issue which I have to decide.
A further, but more serious difficulty arises in respect of the dates of birth given and in respect of the attached copy photograph and fingerprint pages furnished. As previously mentioned, the warrant gives the date of birth: “19.2.1953 (has also given 19.2.1953)”, without further explanation.
In order to consider whether, having regard to this discrepancy, I can be satisfied, as a result of the materials presented and the explanations given in answer to my own enquiry of counsel, that the respondent is the person in respect of whom the warrant issued, I need to consider the materials available to the court on the question of date of birth. As will be seen below, the affidavits presented on behalf of the applicant, make it clear that the applicant relies, for the purposes of identifying the person sought to be surrendered, on the fact that the same person, and not just a person with the same name, was arrested in Basingstoke, England in 1999, as well as on the description of the person sought given by the mother of the complainant, which according to Mr. Glenister’s affidavit is alleged to correspond with the description obtained from the police national computer following the arrest by Sgt. Longman in 1999 of the person with the name of Cathal McGrath.. I consider the question of the date of birth by reference to the photographs furnished, the pages of fingerprints furnished, and the contents of the affidavits filed.
As to the photograph presented with the warrant, I have already indicated that it was supplied on a plain sheet of paper, which bore no writing or any other markings of any kind whatsoever. I leave aside altogether at this time, the poor quality of the copy. The respondent has, in his affidavit, denied it is a photograph of him. The photograph so presented would not permit the Court to make any decision as to the likely date of birth of the person in the photograph, nor as to the date of birth of the person in respect of whom the warrant issued.
It became clear during the course of the exchanges of affidavits, but was not previously known when the warrant was originally endorsed for execution, or during the hearing following the arrest of the respondent, that the copy photograph furnished with the warrant was taken from the national police computer in the United Kingdom. It also became clear from my own additional enquiries of counsel in the course of the hearing, that information appearing on that computer also appears on the second copy photograph, taken from the same computer, exhibited by Mr. Glenister, included certain identifying information which would have been, and is, relevant to the court’s enquiry. I have set out this additional information above. The record appearing on the computer under the photograph gives a date of birth clearly as “D.O.B. 19/02/33”, and only that date, and no other. This record is, on its face, an official record of identification.
In that record, apart from the name, which corresponds to that of the respondent, the only other information is under “date” and that says “20/02/99”, which I understand from the affidavits, is the date of arrest of the person identified in the photograph. It seems reasonable to believe that the information was inserted in this identification box, not by the person arrested, but rather by an official, either Sgt. Longman, or some other person assisting in the processing of such photographs in the Hampshire constabulary, at the time, or when it was transferred onto the national police computer..
No indication was given to the court as to why this relevant material, appearing under the photograph, and which formed an integral part of the identification record of the person photographed, was not included in the copy furnished with the warrant..
It is clear from the last matters mentioned, that the record under the photograph – when that was exhibited – shows a name identical to that of the respondent, but no other connection. The record below the photograph does not contain any address, either in the United Kingdom or in the State, existing, known or former, nor any indication of nationality or place of birth of the person, no special features of identification nor any description whatsoever of the person in the photograph, and no reference to any custody record. It contains no reference to a date of birth in 1953 or to either of the English or Irish addresses appearing in the warrant.
So far as the affidavit of Mr. Glenister is concerned, he confines his averments, on this aspect of the matter, to a statement that Sgt. Longman had arrested a male in Basingstoke on 20th February, 1999, and that Sgt. Longman “interviewed that male person, took his fingerprints and photograph”. He then made the averments I have set out above in relation to the common source of the two copy photographs and the description by the complainant’s mother.
Both Sgt. Longman and Mr. Glenister also refer to a custody record, with information on it, and Sgt. Longman purported to exhibit this, but neither one nor the other has actually exhibited this record.. I can understand and I accept that it might not have been readily available to Sgt. Longman, as he is no longer with the Hampshire constabulary. However, I have to assume the custody record must have been available and could, no doubt, have been exhibited. It is the only document in which both Sgt. Longman and Mr. Glenister say there is a record of a date of birth of a “Cathal McGrath”, and which the respondent accepts as his date of birth. Since both Sgt. Longman and Mr. Glenister have referred to it, but neither has exhibited it, I must assume it was appropriately considered by the relevant authorities in the course of the preparation of the warrant and prior to the issue of the same, and also since the receipt of the Points of Objection and the affidavit of the respondent, but that it was assessed as not being of relevance or of assistance to the court. I therefore did not consider it necessary in the course of the hearing to seek to examine any deponent, nor to adjourn the matter, as the Act of 2003 permits, to await the possible production of such document.
In still considering the question of the two dates of birth, I now turn to the last of the documents furnished in support of the arrest warrant, namely two pages of fingerprints and palmprints, since these too were apparently taken by Sgt. Longman when he took into custody the person in the copy photographs, as I understand his affidavit in that regard. Even though they were presented at the same time as the facsimile warrant, as pages 10 and 11 of the material, it is likely that they are in fact prepared in reverse order. They consist of a “Finger/Palm Form”, a printed standard form document. They include on the first page several fingerprints and on the second page two palm prints. As to identifying the person whose prints they are, the typed name given is “Cathal McGrath” and the date of birth as “19/02/1933.” The forms contain no address, either in the United Kingdom or in the State, current, former or known. The form itself does not appear to provide for the inclusion of any address. Nor do the forms contain any indication of the person’s nationality nor of his place of birth. The form refers to a custody record number, and has a date “20/02/99”, but since no custody record number is given in any of the affidavits furnished to the Court, it is not possible to relate the number appearing on these documents with any particular custody record.. Although this fingerprint record was furnished with the warrant, unlike the photograph which is referred to in part (a) there is no reference whatsoever in that section to fingerprints, although there is provision in s. (a) for additional material such as “photographs or fingerprints”. Nevertheless, I have considered it appropriate to take them into account in my enquiry, as part of the materials actually supplied. As in the case of the copy photographs and the information appearing below the photograph as recorded on the national police register, it seems to me highly likely that the information inserted into the forms was done either by Sgt. Longman himself, or by some person charged with assisting in such matters on the arrest of a person, and not by the person arrested.
The information in the documents above referred to can be summarised as follows:
(a) The copy photograph furnished with the warrant gives no information whatsoever.
(b) The second slightly better but still difficult to analyse, copy, which did contain material appearing on the national police computer, gives a name identical to that of the respondent, but the date of birth of the man in the photograph as 1933. Apart from the name, there is nothing to link the material to the respondent, or to any person although there is a reference to a date 20/02/99 which from the affidavit of Sgt. Longman is the date on which the person was arrested in Basingstoke.
(c) The two pages of fingerprints furnished are also those purportedly of a person stated to be born in 1933. While they refer to a custody record number but nothing further in that regard, they make no mention of photographs taken on the same day. Apart from the name appearing on these two pages, there is no other matter linking them with the respondent, or to any person, save the same date of arrest as in the photograph last mentioned.
As to the existence of a custody record, even if I were to accept at face value the averments made both by Mr. Glenister and by Sgt. Longman that a custody record exists which gives a date of birth in 1953, and which I am prepared to consider, pursuant to the principle of mutual recognition, that would still leave me with a substantial doubt, and not just a mere doubt, in the absence of any explanation for the discrepancy between the dates in the three documents all concerning contemporaneous matters of identification and in the absence of any tie in between such a custody record and the other materials furnished, as to whether the respondent is the person in respect of whom the warrant issued.
I return now, to the affidavits of Mr. Glenister, and of Sgt. Longman, to see whether, notwithstanding that substantial doubt, there is sufficient other information before the court upon which I would be satisfied that the respondent is nevertheless the person in respect of whom the warrant has issued. After referring to the arrest by Sgt. Longman of a male with the name “Cathal McGrath” on the above date in 1999, Mr. Glenister refers to what the complainant’s mother said. Although I set this out earlier in the judgment I now repeat it:
“4. In addition to the matters set out above, I confirm that in her witness statement, on 4th October, 2002, Mrs. Bartlett (the mother of the complainant in this case) states as follows: ‘I learnt from Cathal that he was from Donegal in Southern Ireland … I can describe him as late 40s, approximately 5’7″, skinny, greying hair and he had a front tooth missing.’ I say and believe that this description corresponds with the description obtained from the police national computer following the arrest of Mr. McGrath by Police Constable Longman on 20th February, 1999. It is of the same person.”
He then concludes:
“5. I therefore say and believe that the person arrested in Basingstoke by Police Constable Longman in 1999, whose details appear on the European Arrest Warrant in this application, is one and the same as the Cathal McGrath arrested by Sergeant Martin O’Neill on 18th October, 2004 and the person that is before this Honourable Court.”
It is clear from the forgoing that the Applicant relies on the existence of an arrest of a person in Basingstoke, England, and on what the complainant’s mother said, in support of the contention that the respondent is indeed the person in respect of whom the warrant issued. While it is clear, according to the above extract, that the complainant’s mother described a person as detailed above, it is not possible, in my view, to connect that person either to the copy photograph furnished with the warrant, which had no identification attaching to it at all, and which was impossible to analyse because of its poor quality, nor to the slight clearly copy photograph furnished by Mr. Glenister, on which the only identification is the name of a male, with the much older date of birth, which does not correspond with the age given by the complainant’s mother, and which gives no address either in the United Kingdom or in the State. And further if I consider the characteristics which the mother of the complainant ascribes to the person she was describing in 2002, it is not possible to glean from the warrant or from the photographs or palmprint documents, any of those characteristics. Nor is it possible to find or establish the alleged “correspondence” of this description by the complainant’s mother, with what has been presented to the court from the policy national computer, as Mr. Glenister contends for at paragraph 4 of his affidavit.
Even if it were intended to utilise what the mother of the complainant stated as set out in Mr. Glenister’s affidavit, by reference also to the custody record, which is nowhere mentioned as having come from the national computer, but which I am nevertheless prepared to consider as a possible source for it, it is still not possible to glean from her description that the respondent is the person in respect of whom the warrant has issued. She speaks only of a person being simply from “Donegal in Southern Ireland”, being “late 40’s” – a possible but very vague reference to a specific or approximate date of birth – and having certain bodily and facial characteristics, which are nowhere recorded in the custody record, at least not according to anything contained in the affidavits of Mr. Glenister or of Sgt. Longman.
Although Mr. Glenister’s affidavit contains a number of matters of which it is clear he does not speak of his own knowledge, I have dealt with the averments therein on the basis that they correctly reflect true facts, even those which would ordinarily be considered to be “hearsay”, or even hearsay upon hearsay, that is to say, by accepting his evidence at its very strongest.
Nor is it possible to identify the respondent as being the person sought in the warrant, by reference to Sgt. Longman’s affidavit. What he says, in that regard, is as follows:
“I understand that Mr. McGrath contests this is a photograph of him and I can confirm that it is the photograph and a true likeness of the male I dealt with on 20th February, 1999 who gave the name Cathal McGrath.”
This is a very carefully drawn statement indeed, in which Sgt. Longman says no more than that when he arrested a person who gave his name as Cathal McGrath in 1999 he took a photograph, and that the photograph attached to the arrest warrant is of that person.
There remains, however, the fact that there is no record before the court of any nature, either photographic or by means of fingerprints (whatever the status of such might be), or by means of any other written document which connects the person sought in the warrant to the respondent. I am not satisfied that the contents of the affidavits of Mr. Glenister or of Sgt. Longman resolve the matter.
Once the respondent did not consent to surrender, and once he challenged his date of birth as being 1933, and said he had never used such a date, it was necessary, to have had before the court some explanation of the existence of another, conflicting date. It does seem unusual that, of three official sets of documents, all arising from the occasion of the arrest of the person in Basingstoke in 1999 and upon which arrest the applicant so heavily relies, two of the three created on the same occasion or from the same incident show the same date of birth, significantly different – by twenty years – from the third document, and that it is only this latter document which is not before the court.
Notwithstanding the well established principle of European law that Member States should clearly respect the decisions of authorities in other Member States, pursuant to the principle of mutual recognition, it is proper also that an issuing authority in a case such as this, must furnish sufficient information, of a reliable nature, to enable the member state central authority and this court carry out their respective functions under the Framework decision, and in this State pursuant the Act of 2003 which implements that decision. This required, in my view, in the present case, that the issuing authority furnish to this court, as the executing authority, clear data or information which would have assisted this court to satisfy itself – as it is bound to do – that the respondent is the person I respect of whom the warrant issued.
While, from the jurisprudence cited above, I do not have to satisfy myself beyond a reasonable doubt that the respondent is indeed the person in respect of whom the warrant issued, I do have to be able to make up my mind without genuine and real doubt as to this fact. If I cannot do so without those genuine doubts remaining, then I cannot be satisfied that the respondent is indeed the person in respect of whom the warrant issued.
Before deciding the matter finally, I should also consider the argument which the applicant makes, namely, that, leaving aside or notwithstanding the above difficulties, the affidavit of Sgt. O’Neill is in any event sufficient on its own, because it complies with the several requirements which Blayney, J. found to be sufficient in his decision in the case of Crowley, supra. I am not so satisfied, because I do not think that the circumstances of that latter case are at all similar to those in the present case. In that case, there was no dispute whatsoever as to the factual matters which would have persuaded the court that Mr. Crowley was the person sought. Indeed, one of four critical factors, and perhaps the most important one in that case, was the fact that while Mr. Crowley bore quite a common name, as might also be said of the respondent in this case, Mr. Crowley was, at the relevant time, incarcerated in prison, and was the only person with that name who was in that prison at the relevant time, a fact which was accepted by Mr. Crowley.
In the present case, there is no evidence in Sgt. O’Neill’s affidavit or anywhere in the materials before the Court that the respondent was the only person with his name residing at the address in Basingstoke, England, at the time of commission of the offences, nor even evidence that the address given was not a multiple dwelling with no others of that name residing in it. Nor is there any evidence that the Respondent was actually residing at the address in question at the time of the commission of the offence. Nor is there any evidence that it was where the complainant also resided if that be relevant, nor any evidence such as would permit me to conclude that the respondent was the only person who could have been residing at the address in question at the time in question, such that I would be able to apply the same criterion as was applied by Blayney, J in the Crowley case.. In the present case the applicant seeks, very forcefully, to rely on the fact that he is not the person in respect of whom the arrest warrant was issued, and that the person arrested in 1999 is a person with a different date of birth, 20 years older than him, that he has never given a date of birth which would coincide with that of a date of birth twenty years earlier than his date of birth, and that he is not the person in the photographs furnished to the court. I could not therefore be satisfied the respondent is the person in respect of whom the warrant is sought, based only the material in the affidavit of Sgt. O’Neill.
Finally, I should undoubtedly consider the weight to be given to the statements made by the respondent, upon his arrest, as averred to in the affidavit of Sgt. O’Neill. While the respondent acknowledged his name and the fact that he resided at the address given as Moness, in Burt, Co. Donegal, and that he had previously resided at the address in the United Kingdom specified in the warrant, and that he knew the complainant, there is no question asked of him as to when precisely he resided at the address in the United Kingdom, nor any indication that he did so at a time of the commission of the alleged offences. When combined with the serious questions arising as to the date of birth, the absence of a custody record and the absence in any document of any address in the State linking the person arrested in the United Kingdom with the respondent, and the several other inconsistencies I have referred to,
I am not satisfied that the statements of the respondent as averred to in Sgt. O’Neill’s affidavit set aside the serious doubts I have in respect of the warrant. In regard to this aspect of the case, I have not taken into consideration the denial of the respondent of any connection with the matters under investigation, the subject of the offences listed in the warrant.
Arising from all of the foregoing, I am not satisfied, in accordance with s. 16 of the Act of 2003 and following upon the hearing that the respondent is the person in respect of whom the arrest warrant issued.
In case, however, I should be considered to have misdirected myself as to the applicable law or as to the application of that law to the issues in the case, I should deal with the additional issues raised by Mr. Whelan against the surrender of the respondent, namely the question of the undertakings, the position concerning the offences themselves, and the absence of the underlying warrant.
As to the undertakings, while Mr. Whelan alleged these were not in proper form, and could not and ought not to be accepted, I do not think this is a good basis for resisting surrender, if I were satisfied on the question of identity. The two undertakings which I have referred to at the commencement of this judgment are in sufficiently clear and precise form, and have been adequately and sufficiently formally tendered by the judicial authority, District Judge Pratt, to satisfy the provisions of the Framework decision as transposed by the Act of 2003, and I reject the respondent’s argument. Undertakings in the format furnished have been accepted by this court, and I am satisfied that they conform with s. 22 and s. 24 of the Act of 2003, as Mr. Barron submits in reliance on the decision of O Caoimh, J. in the case of In re Dundon, and in the Matter of a European Arrest Warrant, (Unreported), 14th May, 2004.
On the question of an offence of gross indecency, and its possible equivalent in this jurisdiction, as well as on the question of alleged duplication of offences, I am also, but with some hesitation, persuaded by Mr. Barron’s argument that no issue arises on the question of any duplication of offences, and that the same facts can give rise to more than one offence. As to whether, in this jurisdiction, there is an offence which is the equivalent to that of gross indecency, it seems to me that Mr. Barron is correct that such an offence exists, and that the issue appears to have been clarified in the case of Doolan, supra. And I accept also Mr. Barron’s explanation that the same facts may constitute more than one offence, so that the question of duplication of offences does not truly arise.
Mr. Whelan also argued that he was entitled to have sight of the warrant mentioned in s. (b) of the European Arrest Warrant. This is a different warrant, but a part of the European arrest warrant process, by which, in the present case, an underlying warrant was issued in Basingstoke, for the arrest of the person named in it. I am satisfied that, whereas this is part of the process, and the Framework decision itself requires that the information in the warrant must include evidence of such underlying warrant, as part of the obligatory information to be furnished, there is nothing in this case to suggest that the person named in that warrant is not the person in respect of whom the warrant now before the Court issued. While it is clear that evidence of this warrant should form part of the information furnished by the issuing member state to the central authority in the executing member state, and while I can accept that in certain circumstances the information in that underlying warrant might assist a person who does not consent to surrender, it was not explained to the court how the availability of this underlying warrant could have assisted the respondent in this application. It would moreover, not be open to this Court to examine in any detail that underlying warrant, as that underlying warrant is matter entirely and exclusively within the remit, jurisdiction, control and purview of the courts in the issuing member state.
If there were not the difficulties I have outlined in relation to the identification of the respondent, none of these other matters would persuade me not to surrender the respondent to the appropriate person on behalf of the issuing authority.
However, on the basis of my findings concerning the identity of the person in respect of whom the warrant issued, I reject the application to surrender the respondent pursuant to the European Arrest Warrant dated 6th August 2000. The reasons are sufficiently set forth above, but in case there should be any doubt, I do so on the basis that I am not satisfied that the respondent is the person in respect of whom the European arrest warrant in question was issued.
Minister for Justice, Equality and Law Reform v. Sulej
[2007] IEHC 132 (24 April 2007)
THE HIGH COURT
Record Number: 2006 No. 79 Ext.
Between:
Minister for Justice, Equality and Law Reform
Applicant
and
Tomas Puta
Respondent
THE HIGH COURT
Record Number: 2006 No. 6123P
Between:
Maros Sulej
Plaintiff
And
The Attorney General, and The Minister for Justice,
Equality and Law Reform
THE HIGH COURT
Record Number: 2006 No. 6121P
Between:
Tomas Puta
Plaintiff
And
The Attorney General, and The Minister for Justice,
Equality and Law Reform
Judgment of Mr Justice Michael Peart delivered on the 24th day of April 2007:
These two applications for surrender can conveniently be dealt with together.
Each respondent is sought to be surrendered to the Czech Republic, each on foot of a separate European arrest warrant dated the 10th July 2006. Each warrant was duly endorsed for execution by the High Court on the 14th July 2006, and each respondent was arrested on the 25th August 2006 and brought before the Court as required by s. 13 of the European Arrest Warrant Act, 2003 as amended (“the Act”). They were remanded in custody pending the hearing of the present application under s. 16 of the Act.
No issue has been raised by either respondent as to their identity, and I am satisfied from the evidence given by way of affidavit by the arresting Garda officer, Thomas Malone, that each person before the Court is the person in respect of whom the respective European arrest warrant has been issued.
The offences for which each is sought are a combination of robbery offences and theft. I am satisfied that the acts set forth in respect of these offences in the warrants would if committed in this State be offences respectively of robbery under s. 14 of the Criminal Justice (Theft and Fraud offences) Act, 2001, and of theft under s. 4 of the same Act. No issue has been raised by either respondent in relation to correspondence, and I am satisfied also that the offences for which these respondents are sought satisfy the minimum gravity requirement under the Act.
These are not cases in which any prosecution or punishment has occurred in absentia, so no undertaking under s. 45 of the Act is required.
Issues have been raised by each respondent in relation to the rule of specialty and sections 22 and 24 of the Act, and I will come to those issues.
In addition the respondents have raised issues in relation to fundamental rights under Part III of the Act, and I will deal with those also.
Subject to reaching conclusions on these issues, I am satisfied that the Court is required to make the order which is sought in respect of each respondent under s. 16 of the Act.
Points of Objection relied upon:
The European arrest warrants have not been “duly issued” in accordance with law and do not ‘trigger’ s.10 of the Act, the said purported issuing being in breach of the Constitution of the Czech Republic:
The basis for this objection is the fact that prior to the issue of the European arrest warrants in each case on the 10th July 2006, the authorities in the Czech Republic had forwarded prior warrants, and that these could not be dealt with here given the then state of Czech law. It appears that as a result of representations made to the Czech authorities by the Central Authority here, the law was changed in the Czech Republic by the passing of Law Number 253/2006, effective from 1st July 2006 in relation to the possibility to extradite Czech Nationals in respect of offences committed prior to 1st January 2005.
The respondents submit that these warrants, which issued on the 10th July 2006 were not ‘duly issued’ for the purpose of s. 10 of the Act, since they were issued under a Czech Law which had been amended so as to retrospectively cover these respondents.
There is no merit in this point of objection. The amendment to the law was in respect of persons whose extradition may be sought from the Czech Republic by another Member State, and not the reverse. In any event, this Court is entitled and required to presume that if the authorities in the Czech Republic have sent a European arrest warrant for execution here that it has done so in accordance with the laws of the Czech Republic. The fact that the respondents may have instituted a challenge in the Czech Republic to the constitutionality to the new law and that this proceeding has been accepted by the Constitutional Court is something which cannot interfere with the obligation of this State to operate the Council Framework Decision in relation to a state which the Minister has designated in accordance with s. 3 of the Act. It would be entirely inappropriate for this Court to refuse to order surrender only on the basis of allowing the respondents to remain here until such time as their constitutional challenge to the Czech legislation has been concluded. The fact is that warrants issued on the 10th July 2006 were received here in August 2006. The Court can assume on the basis of the mutual trust and confidence between Member States referred to in the Recitals to the Framework Decision that these warrants have been duly issued, and having said that, I am satisfied that there is nothing appearing in the ‘affidavits’ from Czech lawyers on behalf of the respondents which establishes the contrary. Section 10 is ‘triggered’- the phrase used by the respondents in their submissions.
The surrender of the respondents would be contrary to Part III of the Act, and in particular s. 37 thereof, constituting an unlawful deprivation of liberty:
The basis of this objection is that if an order of surrender is made under s. 16 of the Act, it is a requirement under s. 16(4) of the Act that between the making of the order and the surrender taking place that the respondents are committed to prison without the possibility of bail. I have concluded that this is the meaning to be given to s. 16(4) of the Act, and I have concluded also that such an interpretation in accordance with the ordinary meaning of the words used in the section is not unconstitutional and is a proportionate response to the obligation of this State to ensure that persons whose surrender has been ordered are available to be surrendered when arrangements have been put in place (see judgments in Minister for Justice, Equality and Law Reform v. Draisey, unreported, High Court, 24th November 2006 and Minister for Justice, Equality and Law Reform v. Butenas, High Court, unreported, December 2006). I have no reason to express a different view in the present cases, in spite of the able submissions to the contrary made in these cases by Kieran Kelly BL on these respondents’ behalf on this point that, for example, in Part II cases under the Extradition Act, 1965, it is not a requirement following the making of an extradition order that the person be committed without bail pending extradition being effected, and that s. 16(4) of the European Arrest Warrant Act 2003, as amended cannot oust the original jurisdiction of the High Court to grant bail in all cases.
The surrender of the respondents would constitute a violation of their fundamental rights and freedoms and the rule of law in view of the risks such surrender, and corruption said by them to exist in the Czech Republic would pose to their rights to bodily integrity and life:
Each respondent has sworn in an affidavit that if surrendered their safety and lives cannot be guaranteed and they have each listed a number of persons who they say have been killed. They say that corruption is rife at all levels in the Czech Republic, and in particular he refers to this state of affairs pertaining in the police force. They fear that if returned false witnesses will swear facts against them for reward, and they say that they left that state for their safety. They also state that there has been much media coverage about them and that they cannot get a fair trial as a result. Judge Petr Franc, in his letter to the Minister for Justice, Equality and law Reform dated 8th March 2007 has referred to this question of publicity, but has referred to the fact that it is not something which will affect the Court, and that there is no jury trial in the Czech Republic. He states that the trial will be before one professional judge and two lay judges. He is satisfied that the publicity, which he accepts has occurred, will not in any way affect the fairness of any trial, and that there is a right to appeal against any conviction.
The fact that these respondents allege that there is corruption rife in the Czech Republic cannot be a reason not to surrender them. The proposition put forward is far too general and unspecific to amount to anything of substance. There is nothing to establish that these respondents are the targets of such corruption other than their own unsubstantiated averments and this is not sufficient to rebut the presumption that their fundamental rights will be respected and protected.
It may well be that certain persons have disappeared or been killed as averred by them. It may well be that persons who are innocent have been interrogated and detained. But even if that be true, it cannot mean that these respondents will suffer a similar fate simply because they have some subjective fear that it will occur. If they are in any danger upon surrender, this Court is entitled to presume that they will be afforded whatever protection may be required to protect their safety. It seems likely for example that if surrendered they will be detained in custody given the fact that their surrender is being sought from this State. This affords protection from unwanted attention. This point of objection lacks any sufficient substance to enable this Court to conclude that their surrender is prohibited under Part III of the Act or the Framework Decision.
There has been pre-judgment of the respondents in the Czech Republic, and they cannot get a fair trial:
The basis for this objection is that after the respondents were arrested here on foot of the warrants referred to, certain personnel including Judge Petr Franc have come to Ireland in order to be present at a mutual assistance request, and that he will be the judge who will preside over any trial of the respondents if they are surrendered, and that there has been pre-judgment therefore on his part, infringing principles of natural and constitutional justice. It appears that this judge has already presided over the trial of certain other persons implicated in the offences alleged against these respondents. The respondents submit that they cannot therefore receive a fair trial.
It is a fact that there was an examination on oath of the respondents before Judge William Early in Cloverhill District Court on the 22nd November 2006 at which Judge Petr Franc was present, and that this was part of a mutual assistance procedure resulting in a statement being taken from the respondents and that this occurred in the context of a criminal prosecution in which the respondents were themselves the accused.
The basis of the Framework Decision given effect to by the Act is that of co-operation and mutual assistance between judicial authorities in Member States. This is based on the high level of mutual trust and confidence between Member States. Prosecution procedures and judicial systems of Member States will inevitably vary and vary significantly in many instances. For example, in some member States, as is well known, the prosecutor will be a judge. These differences have been accommodated within the Framework Decision which is based on the confidence which all Member States have in each others’ systems for administering justice. It is not open therefore for this Court to look at how the judicial or prosecution process works in the Czech Republic and determine that because some particular procedure is one which is unknown here that therefore a trial process in that State is an unfair one. Such a possibility would run totally against the spirit and purpose of the Framework Decision. Specific expression is given to that trust and confidence by the inclusion in the Act of the provisions of s. 4A, as inserted, and which provides:
“4A.-It shall be presumed that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown.”
The fact that under a separate regime mutual assistance was rendered to the prosecution authorities, albeit in a way which allowed the judge likely to hear the cases to be present cannot in my view be a reason for this Court to conclude now that any trial of the respondents before the same judge will be a breach of their rights to natural and constitutional justice. Such a conclusion would fly in the face of the expressed basis of mutual trust and confidence in the judicial system of a designated state. It is to be presumed that the Minister for Foreign Affairs, prior to designating the Czech Republic under s. 3 of the Act was satisfied that the judicial system in that country is one in which mutual trust and confidence can be reposed. Nothing averred to or submitted by the respondents has gone anywhere near rebutting that presumption, and in any event it is a matter for the Minister under s. 3 to revoke the designation should any circumstances be felt to exist which would warrant so doing.
This point of objection is also grounded on the fact that two persons who could be regarded as co-accuseds of the respondents in relation to the offences for which their surrender has been sought have already had their cases dealt with and have been convicted. The point being made is that the judge who will be part of the panel of adjudicators when the respondents face their trial, if surrendered, has already heard and adjudicated upon the evidence against them and therefore will have pre-judged the evidence in question. The judge in question has written a letter dated 8th March 2007 to the Minister for Justice, Equality and Law Reform in response to a letter from him of the same date, and he deals with this point of objection. He confirms that the other two accused have been convicted on foot of evidence which will also be used against the two respondents herein, but goes on to state that they will have the entitlement to have that evidence presented again and to give their own evidence. He makes it clear that the prosecution which has already taken place was against the two other co-accuseds only, and that the respondents were not dealt with in absentia. This Court is obliged and entitled to assume that the procedures available in this regard satisfy at least minimum standards of fairness, for so long as the Czech Republic remains a state designated by the Minister for Foreign Affairs pursuant to s. 3 of the Act. The respondents have not rebutted that very strong presumption. The fact that procedures there differ from those here, or indeed that something which occurs there would not be acceptable here, does not of itself mean that the system of justice available in that state is one to which persons must not be surrendered. A designated state is entitled to enjoyment of the presumption that its judicial system operates at an acceptable level of fairness for other member States to have the level of trust and confidence referred to in the recital to the Framework Decision itself.
The surrender of the respondents would amount to a breach of sections 22 and 24 of the Act – i.e. ‘specialty’ provisions:
By section 22 of the Act, the traditional rule of specialty was disapplied whereby a person whose surrender or extradition was ordered in respect of an offence or offences referred to in the request for surrender, could not be prosecuted, detained or punished in respect of any offence other those that or those for which extradition had been ordered. Most extradition treaties contained such a provision. However, Article 27 of the Framework Decision provides for new arrangements in relation to the prosecution or punishment of offences which are other than those the subject of the European arrest warrant. Section 22 of the Act has given effect to that Article.
Article 27 provides as follows:
“Article 27 Possible prosecution for other offences
1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. 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.
3. Paragraph 2 does not apply in the following cases:
(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
(b) the offence is not punishable by a custodial sentence or detention order;
(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;
(f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;
(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.”
Section 22 of the Act makes provision in broadly similar terms.
This point being submitted by the respondents arises out of something said by a member of the Czech police, Major Gregor, who attended at an application for bail made at Cloverhill Prison by the respondents following their arrest on foot of these warrants. When objecting to bail being granted to the respondent, Puta, Major Gregor is recorded in the transcript of that bail hearing as having been asked by Mr Kelly whether he “may face additional charges which are still occurring in your investigation” (sic).
Major Gregor replied that “it is a bit problematic because there are some matters which are not in the European arrest warrant. First of all he will have to go to court and face the charges in the European arrest warrant. In relation to the other warrant they will have to ask or issue another warrant for the charges which are not in the European arrest warrant. But these are legal matters, this is a matter for police, it is a legal matter”. It was clarified in a subsequent question that he intended to say that “it was not a police issue”.
In respect of the respondent, Sulej, Major Gregor was asked about an investigation into offences other than those referred to in the European arrest warrant. Major Gregor is recorded as stating: “What is in the European arrest warrant will be at the court but the other matters where Mr Sulej is suspect are being investigated”. When asked if he might also face other charges if he is surrendered, Major Gregor stated: “There will be another court. Mr Sulej is not from the Czech Republic, he is from Slovak Republic. Another court will deal with this case.” He went on to say that any other charges would be the subject of other warrants than the European arrest warrant.
It is submitted by Counsel for the respondents that this evidence is sufficient to rebut the presumption contained in s. 22 (3) of the Act which provides:
“(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to-
(a) proceed against him or her,
(b) sentence or detain him or her in his or her personal liberty,
in respect of an offence, unless the contrary is proved.”
However, in my view, the evidence of Major Gregor, even if it is to be taken as confirmation that each respondent will be prosecuted, if surrendered, in respect of offences outside those referred to in the European arrest warrants on foot of which their surrender is currently sought, this Court is not required to refuse to surrender them in view of the later subsections of s. 22 which make provision for circumstances where, even in such circumstances, surrender will be ordered. Section 22 (6) and (7) are particularly relevant, since they provide that where the Court is satisfied that the respondents will not be so prosecuted or punished in respect of other offences “without the issuing judicial authority first obtaining the consent of the High Court”, the Court shall not refuse to order surrender. These provisions give effect to what is provided in Article 27 of the Framework Decision.
Again it is necessary to refer to the provisions of s. 4A of the Act which creates a presumption that the issuing state will comply with its obligations under the Framework Decision, and nothing which Major Gregor has stated, even if it is taken as meaning that as a matter of probability the respondents will face other charges if surrender, would satisfy this Court that the authorities in the Czech Republic will not, in the event of wishing to proceed against these respondents in respect of matters outside the European arrest warrants issued herein, do so without complying with the need to if necessary obtain the consent of the High Court as provided for. It is to be presumed that it will do so if necessary. This point of objection must fail.
In respect of the respondent, Suleg, there is a submission based on the fact that he is not of Czech nationality but rather from Slovakia, that he may be surrendered on to that country if this Court orders his surrender to the Czech Republic, given the evidence of Major Gregor, and that this would be a breach of s. 24 of the Act which provides:
24.—(1) 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 European arrest warrant shall not be extradited to a third country without the consent of the High Court and the Minister first being obtained.
(b) the person will be extradited to a third country without such consent first being obtained.
(2) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to extradite him or her to a third country, unless the contrary is proved.
(3) The issuing state may request, in writing, the High Court to consent to the extradition to a third country by the issuing state of a person surrendered to the issuing state under this Act.
(4) The High Court give its consent to a request under subsection (3) if it is satisfied that
(a) were the person concerned in the State, and
(b) were a request for his or her extradition received in the State from the third country concerned,
his or her extradition pursuant to such a request would not be prohibited under the Extradition Acts”
For the same reasons given in respect of the s. 22 point just dealt with, this objection must also fail.
There is a lack of reciprocity in the manner in which the Czech Republic has enacted the Council Framework Decision dated 13th June 2002, in that the Czech Republic will not surrender persons to this State on the same basis as this State surrenders to that country:
The basis for this submission is that the law by which the Framework Decision was transposed into Czech national law (Law Number 539/2004) did so in a way did not permit a Czech national to be surrendered from the Czech Republic to another Member State in respect of any offence committed prior to 1st January 2005. That law was later amended after representations in the case of these respondents by the Irish Government, so that by the enactment in the Czech Republic of Law Number 253/2006 which provided that a Czech citizen could thereafter be surrendered to another Member State in respect of such offences. However, the respondents submit that the lack of reciprocity by reason of Law Number 539/2004 is submitted by the respondents to be a reason why this State should refuse to surrender them to the Czech Republic. Each respondent, through their Czech lawyers has lodged a challenge, on the basis of retrospectivity, to this legislation with the Constitutional Court in the Czech Republic and the cases have been accepted by that Court for argument at some time in the future.
Without dealing with the submissions of Counsel in any detail, it is perfectly clear that even if there is some disparity between the manner in which the Framework Decision has been introduced into Czech law and how it has been given effect to in this State, there can be no reason resulting from that fact, if it be such, why this State should refuse to surrender in accordance with the requirements of the Framework Decision and the Act here. There can be no question of this Court examining how another Member State has given effect to the Framework Decision, and deciding in some case that because a member State may have given effect to it in some way different to this State, that we here should not honour obligations which we have entered into. This State has designated the Czech Republic for the purpose of s. 3 of the Act, and that is an end of the matter until such time as the Minister has revoked his Order of designation, as he/she is empowered to do by the section which provides as follows:
“3.—(1) For the purposes of this Act, the Minister for Foreign Affairs may, by order, designate a Member State that has, under its national law, given effect to the Framework Decision.
(2) The Minister for Foreign Affairs may, by order, amend or revoke an order under this section, including an order under this subsection.”
The European Arrest Warrant Act, 2003 is unconstitutional in that it is based on a Framework Decision not properly ratified in advance by the Oireachtas as required by Article 29 of the Constitution:
This point of objection has been fully dealt with in my judgment in the case of Minister for Justice, Equality and Law Reform v. Iqbal and in which I have given judgment subsequent to the argument of the same point in the present cases. It is unnecessary for me to set out both the factual and the legal basis for the point being urged herein, as it is fully dealt with in Iqbal. I have concluded that the Act suffers no constitutional frailty arising from anything which occurred in the Oireachtas either on the 12th December 2001 when the Oireachtas resolved to approve the draft proposal for the Framework Decision, or on the 28th December 2003 when the Act was passed, and that there has been no breach of Article 29 of the Constitution. I have no reason to express a different view herein. I accordingly dismiss the proceedings commenced by way of Plenary Summons in relation to this issue by each respondent.
I am satisfied that in respect of each respondent herein an order for surrender must be made under s. 16 of the Act, and I so order.
Approved: Peart J.
Minister for Justice and Equality v Gorczyca
[2020] IEHC 59 (10 February 2020)
Page 1 ⇓THE HIGH COURT[2020] IEHC 59[2019 No. 324 EXT]BETWEENMINISTER FOR JUSTICE & EQUALITYAPPLICANTANDSEBASTIAN GORCZYCARESPONDENTJUDGMENT of Mr. Justice Binchy delivered on the 10th day of February, 20201. By this application the applicant seeks an order for the surrender of the respondent toPoland pursuant to a European Arrest Warrant dated 3rd September, 2019 (“the EAW”).The EAW was issued by a The Regional Court of Toruń, as issuing judicial authority(“IJA”).2. The EAW was endorsed by the High Court on 8th October, 2019. The respondent wasarrested and brought before the Court on 13th November, 2019. The application firstopened before the Court on 3rd December, 2019, was then adjourned until 13thDecember, 2019, and adjourned again until the 20th December, 2019 following upondirections by this Court, pursuant to s. 20 of the European Arrest Warrant Act 2003 (asamended) (hereinafter “the Act of 2003”).3. At the opening of the application, I was satisfied that the person before the Court is theperson in respect of whom the EAW is issued.4. I was further satisfied that none of the matters referred to in ss. 21 A, 22, 23 and 24 ofthe Act of 2003 arise, and that the surrender of the respondent is not prohibited for anyof the reasons set forth in any of those sections.5. At para. B of the EAW regarding the decision on which the warrant is based it is statedthat an enforceable court ruling suggesting provisional detention does not apply. At para.B.2 “reference number of case in which the decision was rendered” two case filereferences are given. The first is reference number II K 15/14, described as a cumulativejudgment with the force of law of the District Court in Chelmno of 20th March, 2014cumulating the sentences handed down in three earlier decisions:1. The District Court of Chelmno of 20th March, 2003 (II K 136/02)2. The District Court of Świecie of 29th May, 2008 (II K 280/06)3. The District Court of Grudziądz of 20th January, 2003 (II K 352/02)6. The second decision is under case file reference number II K 222/04 described asjudgment with the force of law of the District Court in Świecie of 18th April, 2013.7. At para. C.2 of the EAW the length of custodial sentence or detention order imposed isoutlined. For reference II K 15/14 this is a cumulative penalty of three years’Page 2 ⇓imprisonment, adjudicated by a cumulative judgment of the District Court in Chelmno of20th March, 2014 cumulating the following penalties:1. One year and six months’ imprisonment handed down in case II K 136/022. Substitutive penalty of six months’ imprisonment handed down in case II K 280/063. Two years’ imprisonment handed down in case II K 352/028. The sentence handed down in case reference II K 222/04 is outlined as a cumulativepenalty of one year and four months’ imprisonment, by judgment of the District Court inŚwiecie of 18th April, 2013.9. At para. C.3 the sentence remaining to be served for reference II K 15/14 is one year,two months and 20 days’ imprisonment. For case reference II K 222/04 the remainingsentence is one year and 27 days’ imprisonment.10. In para. D of the EAW it is stated that:1. The respondent did not appear in person at the trial resulting in the decision in casefile reference number II K 15/14, and nor did he appear in person at the trialresulting in the decision in case file reference II K 280/06.2. The respondent did appear in person at the trial resulting in the decisions in allother cases i.e. cases file reference numbers: II K 136/02, II K 352/02 and II K222/04.11. In relation to those cases at which he did not appear in person further information isprovided in para. D. In the case of file reference number II K 15/14 it is stated that:“The convict was notified, by post on 24th February 2014, about the date of thetrial, during which the cumulative sentence was adjudicated. He collected thenotification in person. His attorney was present at the trial on 20th March 2014.The cumulative judgment adjudicated by the District Court in Chelmno in case filereference number II K 15/14 was issued at the request of the convict. Thus, boththe convict and his attorney were familiar with single sentences with the force oflaw, which were covered by the cumulative sentence; these sentences were notquestioned.”12. In case file reference number II K 280/06, it is stated that:“The convict did not collect the correspondence, he did not stay at the place of hisresidence in Poland, his new place of stay was not known, the police officersestablished that, most probably, Sebastian Gorczyca was staying in the territory ofGreat Britain. With reference to the above, at the Court’s sitting on 29th May 2008penal judgment in the form of order was issued towards Sebastian Gorczyca. Then,the copy thereof was sent to the last known address of the convict in Poland; thePage 3 ⇓convict did not collect the correspondence. The sentence became valid on 19th July2008.”13. At para. E of the EAW, it is stated that it relates to nine offences. Particulars of the nineoffences are set out at para. E.2 of the EAW. However, notwithstanding that this is so,the IJA has also indicated the application of Article 2(2) of the Framework Decision byunderlining two categories of offences in para. E.1 of the EAW. These are those relatingto forgery of administrative documents and trafficking therein, and, separately, swindling.14. As a result, there was uncertainty as to which offences the IJA was relying upon Article2(2) of the Framework Decision. Accordingly, the central authority here sent a letterseeking further information in relation to this and other matters, to the central authorityin Poland (in this case The Regional Court of Toruń) on 2nd August, 2019, asking the IJAto explain why a description of all of the offences for which the surrender of therespondent is requested is provided at para. E.2 of the EAW, when two offences on thelist at para. E.1 had been selected. In its reply of 3rd September, 2019, the IJA statedthat this was done in error, but the IJA did not clarify to which offences it intended theArticle 2(2) offences of forgery and swindling to apply.15. The matter first came on for hearing before this Court on 3rd December, 2019, and thisCourt directed that further information should be sought from the IJA, pursuant to s. 20of the Act of 2003, in relation to this and other matters. In its reply of 10th December,2019, the IJA effectively repeated the reply that it had given to the same inquiry in itsletter of 3rd September, 2019. Accordingly, the Court was none the wiser in relation tothis issue when the matter next came before the Court on 13th December, 2019 andaccordingly this Court directed that yet another inquiry in relation to this matter to clarifythose offences which the IJA intended to refer to in ticking the boxes in respect of forgeryand swindling. This gave rise to a reply, by return, which stated simply that:“In s. E.2 of the European Arrest Warrant the Court, indicated the detaileddescription of all deeds for the commission of which Sebastian Gorczyca wassentenced and all these deeds are covered by the European Arrest Warrant.”Of course this did still not answer the question and so on 20th December, 2019, the Courtdirected that one last letter should be sent to clarify the issue, and adjourned the matterfor one final occasion to 13th January, 2020. By letter dated 2nd January, 2020, the IJAstated that:“…the offences for the commission of which the person described above wassentenced, and which are covered by the European Arrest Warrant are as follows:forgery of administrative documents and trafficking therein; fraud and obtaining ofcredit under false pretences, whereas in s. E.1 there in no field to contain theenumerated offence consisting in obtaining credit under false pretences and that iswhy, in s. E.2 the Court included detailed description of each of the offencescommitted by Sebastian Gorczyca.”Page 4 ⇓16. By this letter, the Court understands the IJA to state that because some of the offencesreferred to in the EAW did not fit into the categories of offences set out in para. E.1 (i.e.those referred to Article 2(2) of the Framework Decision), specifically those offencesconsisting of obtaining credit under false pretences, it decided to provide a detaileddescription of all offences in respect of which the surrender of the respondent is sought inpara. E.2 of the EAW, although in its earlier correspondence it acknowledged that in sodoing it did so in error.17. It is well established that where there is a lack of clarity in an EAW as to those offenceswhich an IJA intends to rely upon para. E.1 of the EAW, the Court will consider if theoffences described in the EAW correspond to offences in the law of the state. This isapparent from the decision of Peart J. in Minister for Justice, Equality & Law Reform v.Paulauskas [2009] IEHC 32 and the decision of Donnelly J. in the case of Minister forJustice & Equality v. Ludwin [2018] IEHC 220 in which case, having found that the IJAhad made a manifest error in ticking one of the offences in part E(1) of the EAW, shewent on to say, at para. 13:“A number of decided cases have dealt with the situation where the issuing judicialauthority has completed part E(1), indicating reliance on Article 2(2) of the 2002Framework Decision, and part E(II), indicating non-reliance. Following on from thedecision of Peart J. in Minister v. Paulauskas [2009] IEHC 32 the High Court hasaccepted that this not a bar to surrender provided that correspondence has beenmet”.18. In the descriptions of the offences provided in the EAW by the IJA, it has used the word“forged” on four different occasions, in relation to four separate offences.19. At para. E.1 of the EAW it is stated that the warrant relates to nine offences. Evenallowing for differences of procedures in jurisdictions, and the fact that sometimesseparate incidents each of which would amount in itself to an offence are amalgamated soas to constitute a single offence, it is difficult reading this EAW to understand why it isstated to relate to nine offences.20. This is so because particulars of the convictions giving rise to the sentences for which thesurrender of the respondent is sought are provided in para. E of the EAW, and it appearsto me that there are no less than fifteen incidents, each of which constitutes an offence.The respondent was convicted of these offences over the course of four different courtproceedings, under the file references set out at para. 5 above. While there is someuncertainty as to those offences upon which the IJA relies upon Article 2(2) of theFramework Decision, there cannot be the slightest doubt but that in relation to thoseoffences in which it is expressly alleged that the respondent either forged a document ormade use of a forged document, the IJA intended to rely upon the offence described asforgery of administrative documents and trafficking therein in the Article 2(2) list ofoffences. It would in my view be absurd to conclude that the requesting state could notrely upon the ticking of that box in relation to those offences.Page 5 ⇓21. In relation to all other offences however, these must comprise a mixture of offences inrespect of which the IJA intended to rely upon the Article 2(2) offence of swindling, andothers in respect of which it did not intend to rely upon the Article 2(2) list at all. It is nofunction of this Court to attempt to distinguish one from the other. Where there is a lackof clarity about those offences in respect of which an IJA is relying upon the Article 2(2)list, the executing state cannot place any reliance on the latter and must instead considerwhether or not the acts comprising those offences as set out in the EAW (and, ifapplicable, additional information) would, if committed in the State, constitute an offencein this jurisdiction.22. So far as these proceedings are concerned, the upshot of the above is as follows. Casefile reference II K 280/06 refers to two offences. The first was committed on 12th July,2000 and it is stated that in committing this offence, the respondent made use of a forgedemployment certificate. In the second offence of 27th September, 2000, it is stated thatthe respondent had “previously forged the certificate” (this appears to refer also to anemployment certificate). Accordingly, it is not necessary for the applicant to demonstratecorrespondence in relation to the offences the subject of file reference II K 280/06.23. Under the heading of file reference II K 352/02, particulars of four offences are provided.The first of these offences is stated to have occurred in 23rd November, 2001, and it isstated that the respondent forged the signatures of two persons on the contract of sale ofa vehicle. The applicant is not required to prove correspondence as regards this offence.24. Under the same file reference, the EAW then describes two offences of car theft, one thatoccurred on 27th January, 2002, and another that occurred on 5th February, 2002.These acts would clearly correspond to offences under s. 4 of the Criminal Justice (Theftand Fraud) Offences Act 2001 (“the Act of 2001”).25. The final offence described under case reference II K 352/02 states that the respondent,acting in concert with others, and in order to gain material benefit, demanded from theowner of a stolen vehicle a sum of money for the return of the illegally seized vehicle.Counsel for the applicant submitted that this would constitute an offence under s. 18 ofthe Act of 2001, relating to the possession of stolen property. He also suggested that itmay be an offence under s. 17 of the Criminal Justice (Public Order) Act 1994 whichcreates the offence of making an unwarranted demand with menaces. Since there is noindication of menaces in the acts as described, I think it unlikely that the acts as set outcould constitute an offence under the latter section. However, the acts described would, Ibelieve, constitute an offence under s. 18 of the Act of 2001, and it was not argued to thecontrary.26. Under file reference II K 136/02, there is a description of just one offence in which it isstated that the respondent acted so as to gain material benefit, and in concert withanother, he “had the personnel of the shop dispose disadvantageously of the property atthe amount of 2370.74 PLN, which resulted in conclusion of the credit contract he had nointention to pay back”. It is reasonable to infer that this means that the respondentobtained goods from a shop pursuant to some kind of credit agreement which he had noPage 6 ⇓intention of honouring. Counsel for the applicant submitted that this would constitute anoffence under s. 6 of the Act of 2001. That section provides that “A person whodishonestly, with the intention of making a gain for himself or herself or another, or ofcausing loss to another, by any deception induces another to do or refrain from doing anact is guilty of an offence”. I agree that on the basis of the brief description of the actsset out in the EAW, they would constitute that offence if committed in this jurisdiction.Counsel for the respondent did not submit otherwise.27. Particulars of eight offences are provided under file reference no. II K 222/04. In three ofthese, being offences committed on 29th December, 1999, 4th April, 2000 andSeptember, 2000 (the precise date is not provided) it is stated that the respondent used(on each occasion) a forged employment certificate. It is not necessary to provecorrespondence in relation to these offences. As regards the other offences:28. It is stated that on 10th May, 1999 the respondent “misleading the wronged bank as tothe fact of having resources on the bank account, which in fact he had not, he cashed fivecheques for the total amount of 1,456.48 PLN.” It is submitted that this would constitutean offence under s. 6 of the Act of 2001. It was not argued otherwise, and I agree.29. It is stated that on 27th March, 2000 the respondent, acting so as to gain materialbenefit, concluded a credit contract for the purchase of goods “as a result of misleading asto the possibility and intention to fulfil the obligation incurred, by which he caused thelosses at the amount of 555.98 PLN to the detriment of the wronged party”. Again it isargued that this would be an offence under s. 6 of the Act of 2001, and again it was notargued otherwise. It is clear that this paragraph states that the respondent misleadanother party when he entered into a credit contract to purchase goods, and caused thatparty a loss. Such acts, if committed in this jurisdiction, would in my view amount to anoffence under s. 6 of the Act of 2001.30. It is stated that on 7th July, 2000, acting in concert with another, he certified an untruthin a document relating to remuneration gained, which document was used to mislead the“wronged party” as a result of which the respondent obtained credit in the amount of 800PLN. This again would correspond to an offence under s. 6 of the Act of 2001.31. An almost identical offence is stated to have occurred on 16th October, 2000 which wouldalso constitute an offence under s. 6 of the Act of 2001.32. Finally, it is stated that in a period between July and August, 2000 the respondent“implementing the premeditated intent, he aided another person to sell and hide dieseland heating oil originating from the offence of the value not less than 14,400 PLN.”Counsel for the applicant submitted that the acts as described indicate that therespondent was convicted of handling stolen property, contrary to s. 17 of the Act of2001. Counsel for the respondent on the other hand submitted that the acts do notindicate any such thing. I agreed with counsel for the respondent that the particularsprovided are inadequate to establish correspondence with any offence in this jurisdiction,and so I directed that a request for further information should be made for greater detailsPage 7 ⇓of the particulars of this offence. This request was made by letter from the centralauthority here on 3rd December, 2019, to which a reply was given on 10th December,2019 in relation to this and other matters. As regards this matter it is stated:“In July, 2000, Dariusz Peron concluded the contract with Szostka Production andCommercial Enterprise Limited Liability Company in Swiecie; pursuant to thiscontract the payment for the taken fuel was to be paid within 7 days from issuing ofthe invoice. In the period from July 2000 to 23rd August 2000 Dariusz Peroncollected in total 11,400 litres of fuel from this enterprise. Sebastian Gorczycahelped him to sell the oil and he knew oil was obtained by a prohibited act. On18th April, 2013 at the trial in case file reference number II K 222/04 SebastianGorczyca pleaded guilty to the commission of all deeds charged thereto.”33. In my opinion, these particulars establish no more than that the respondent assistedanother person to sell oil for which he knew that other person had not yet paid thesupplier. While it is stated that the oil was “obtained by a prohibited act”, it is unclearprecisely what is said to have constituted the prohibited act. The person with whom therespondent was working acquired the oil pursuant to a contract. He did not pay for the oilwithin the period stipulated. It is difficult to see how any of this could constitute anoffence on the part of the respondent, if those acts were carried out in this jurisdiction.That being the case, the respondent cannot be surrendered in relation to his convictionfor this offence in Poland. It is then necessary to consider the implications of this inrelation to all of the other offences which are mixed together with this offence for thepurposes of the imposition of a cumulative penalty of one year and four months undercase file reference no. II K 222/04.34. Before doing that however, it is necessary to address another difficulty that arises in thecontext of s. 45 of the Act of 2003. From the particulars furnished, it appears to thisCourt that there were five different occasions that would fall within the description of a“trial resulting in the decision” as that term has been interpreted by the Court of Justiceof the European Union in the case of Tupikas (C 270/17 PPU). The respondent waspresent in court for three of those occasions. The two occasions on which he was not incourt were for the decisions given under file reference no.s II K 15/14, and II K 280/06.As regards the first of these, the file reference no. II K 15/14, this is described as being a“cumulative judgment with force of law of the District Court in Chelmno of 20th March,2014 cumulating the following sentences”, and it then goes on to refer case filereferences no.s II K 136/02, II K 280/06 and II K 352/02. Later in the EAW, it is statedthat this cumulative judgment was issued “at the request of the convict”, the EAW thengoes on to state “thus, both the convict and his attorney were familiar with singlesentences with a force of law, which were covered by the cumulative sentence; thesesentences were not questioned”. As regards the notification for these proceedings underfile reference II K 15/14 it is stated that the respondent was notified by post and it isfurther stated that he collected the notification in person, and that his attorney waspresent at the trial on 20th March, 2014. That in my view disposes of any difficulty asPage 8 ⇓regards the non-attendance by the respondent himself at these proceedings, i.e. theproceedings resulting in the judgment of 20th March, 2014, under reference II K 15/14.35. However, as regards the proceedings under file reference no. II K 280/06, the sentencefor which formed part of the consideration of the court under file reference no. II K 15/14,it is stated that the respondent did not collect correspondence notifying him of the trial ofthese proceedings which took place 29th May, 2008. This appears to be the date uponwhich the respondent was convicted of this offence. It is further stated that a copy of thejudgment was sent to the respondent at his home address, but he did not collect thecorrespondence, and that the sentence then handed down became valid on 19th July,2008.36. From all of the above, the following emerges. The surrender of the respondent is soughtin connection with two court judgments, reference number II K 15/14 and referencenumber II K 222/04. The first of these judgments arose from an application made by therespondent himself to “cumulate” three different sentences previously imposed upon himin case file reference numbers II K 136/02, II K 352/02 and II K 280/06. The issue of theguilt/innocence of the respondent in connection with the offences with which he wascharged at these trials underlying case reference number II K 15/14 was not addressed atthat trial, which appears to have been concerned only with the amalgamation of penaltiesimposed in the underlying trials. Although it is not stated in this case, in other cases this“accumulation” or aggregation of sentences frequently results in a reduction in the overallsentence, but whether or not it did so in this case is not material to the decisions thecourt must make.37. I am satisfied that the requirements of the Act of 2003 have been met as regards thejudgment resulting from case file reference number II K 15/14, and the underlying trials(i.e. arising from case file reference numbers II K 136/02, II K 280/06 and II K 352/02)in all bar one respect, and that is the respondent was not in attendance at the trial atwhich his guilt was determined in case file reference number II K 280/06. Nor have any ofthe circumstances set out in the table attached to s. 45 of the Act of 2003 (as amended)been indicated as being of application. This means that the surrender of the respondent inconnection with his conviction for the offences to which case file reference number II K280/06 is prohibited. This is because while s. 45 of the Act of 2003 is satisfied as regardsthe penalty ultimately imposed in respect of this and other matters on 20th March, 2014,it is not met as regards the hearing at which the guilt of the respondent was determinedin respect of this matter, on 29th May, 2008.38. This results in a further complication by reason of the fact that his sentence in respect ofthose proceedings has become enmeshed with the sentence imposed on him inconnection with the offences, the subject of case file reference numbers II K 136/02 andII K 352/02. It is clear from the decision of the Supreme Court in Minister for Justice,Equality and Law Reform v. Ferenca [2008] IESC 52 that, in such circumstances,surrender is usually prohibited in respect of all offences because it is not possible toPage 9 ⇓disentangle the penalty imposed in connection with the offence for which surrender isprohibited, from those in respect of which surrender may be allowed.39. A similar difficulty arises in connection with one of the incidents giving rise to theconviction of the respondent in case file reference number II K 222/04. It will be recalledthat I have ruled that one of the incidents concerned is neither covered by the invocationof Article 2(2) of the Framework Decision, and nor do the facts giving rise to theconviction for that offence correspond to an offence in this jurisdiction. Since the penaltyfor this matter is also a cumulative penalty imposed on the respondent in connection withseven other incidents, it is not possible to disentangle the matter in respect of whichsurrender is prohibited from those in respect of which it is permitted.40. That said, however, this Court was previously informed in other proceedings where asimilar difficulty arose, that in those proceedings it would be open to the respondentconcerned to make application to have the penalty imposed on him pursuant to thecumulative judgment reduced proportionately to reflect the fact that he was not beingsurrendered for one of the offences to which that cumulative penalty related. On thatbasis, in those proceedings, surrender was ordered. This does not appear to have been anoption in the proceedings before the Supreme Court in Ferenca.41. In case such a mechanism is available in this case, I will make a further request forinformation of the IJA, pursuant to s. 20 of the Act of 2003 and I will defer making adecision on the surrender of the respondent pending receipt of an answer to thesequestions which are:1. If the surrender of the respondent is refused in connection with any one or more ofthe offences of which the respondent has been convicted, but in respect of which hehas received a cumulative penalty, is it open to the respondent to make applicationto the court to have the cumulative penalty imposed upon him reducedproportionately to reflect the fact that his surrender has been refused in connectionwith a specified offence or offences?2. If it is open to the respondent to make such an application to court, is he assuredthat the relevant sentence or sentences will be reduced proportionately so that thesentences that he will be required to serve will relate only to those offences forwhich he has been surrendered?3. If such an application to court is available to the respondent, will it be conducted byway of an oral hearing at which the respondent may be present and represented bya lawyer of his choosing?42. If the court can be satisfied that, if surrendered, the respondent is assured that hissentences will be reduced proportionately to reflect the decision of this Court that he isnot being surrendered in connection with the offences to which I have referred, then I willdirect his surrender in connection with all other offences.
Result: Request for additional information, pursuant to s. 20 of the Act of 2003, was made to the issuing judicial authority.
Minister for Justice Equality and Law Reform v Olsson
[2011] IESC 1 (13 January 2011)
THE SUPREME COURT
S.C. No. 54 of 2008
Murray C.J.
Fennelly J.
Macken J.
O’Donnell J.
MacMenamin J.
BETWEEN:
THOMAS OLSSON
APPELLANT
AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT
Judgment delivered by O’Donnell J. on the 13th day of January, 2011
The appellant is a citizen of Sweden. His arrest was sought by that country pursuant to a European Arrest Warrant (“EAW”) issued on the 19th December, 2006 for the purposes of prosecution in respect of four offences of robbery and arson alleged to have occurred on the 20th and 21st of October, 2005. The warrant was endorsed for execution on the 19th December, 2006 and executed on the 5th July, 2007. The appellant raised a number of challenges to the warrant and also issued separate plenary proceedings seeking declarations that the provisions of legal assistance under the Attorney General’s Scheme (“the Scheme”) were in breach of Council Framework Decision 2002/584/J.H.A. of 13 June, 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. L 190/1 18.7.2002 (“the Framework Decision”), the European Convention on Human Rights and/or the Irish Constitution. All issues were heard together by the High Court in the European arrest warrant “EAW” proceedings. In MJELR v. Ollson [2008] IEHC 37, (Unreported, High Court, Peart J., 20th February, 2008) the High Court rejected the appellant’s contentions , and directed that he be surrendered to Sweden in accordance with the provisions of the European Arrest Warrant Act 2003 (“the Act of 2003” or “the Act”), as amended. Against that judgment and order the appellant has now appealed to this Court.
On the hearing of the appeal the appellant sought leave to introduce further evidence being:
(1) a report of the United Nations High Commissioner on Human Rights dated the 16th July, 2008;
(2) a translation of a Swedish newspaper said to have been published “in November/December 2008” purporting to contain comments by a Swedish prosecutor on the substance of the case, and the EAW proceedings; and
(3) correspondence between the appellant’s Irish solicitors and the gardaí and, more pertinently, correspondence between the solicitors and members of the Swedish police force.
The Court, having heard submissions, refused to admit the United Nations report and the translation of the newspaper, considering that they did not amount to evidence which could have a material bearing on the outcome of the appeal. While considering that there was an issue as to the admissibility of the correspondence, the Court nevertheless permitted the material to be opened de bene esse. The appeal then proceeded on its merits.
Although the proceedings, including the plenary proceedings and the interlocutory proceedings in the High Court, had together generated voluminous documentation raising a significant range of issues, the appellant through his counsel, Mr. Derek Kenneally S.C., acknowledged that in essence the appeal could be reduced to two issues: first, the question of the legal assistance available to the appellant; and second, whether the Court should refuse to surrender the appellant on the grounds that it was alleged that a decision had not been made to charge him with, and try him for, the offence as stated in the warrant (Under the EAW procedure surrender of a requested person may be sought for the purposes of either conducting a criminal prosecution or the execution of a custodial sentence or detention order). This narrowing of the potential issues in the case was welcome, but it should also be said, was both realistic and proper.
Legal Aid
On a first and indeed subsequent reading of the papers in this matter, it might have appeared that the substantial part of the appellant’s case was the contention that the legal fees available under the Scheme were so inadequate and so different from what could be obtained on taxation of costs, that the Scheme amounted to a failure to secure to the requested person the legal assistance to which it was asserted he was entitled. However, Mr. Kenneally S.C. disavowed any intention to advance such a case, or to make any argument which was in any way dependent on the level of remuneration available under the Scheme. Again, it should be said that this approach was both proper and prudent: any claim dependent on an assertion that another level of fees might have been attainable by taxation of costs would have been almost certainly doomed to failure and in any event, would also have had the appearance of an uncomfortable element of special pleading. Indeed, and in fairness to the lawyers appearing on behalf of the appellant, it should be said that they had expressly refused to seek certification under the Scheme, considering that it would be somehow inappropriate to criticise the adequacy of the Scheme, while at the same time seeking to benefit from it. Accordingly the point argued in this appeal is limited to the contention that the provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is requested pursuant to a European arrest warrant.
The appellant’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended. The proper approach to the interpretation of these provisions was clearly set out in the judgment of the Supreme Court delivered by Murray C.J. in Minister for Justice Equality and Law Reform v. Altaravicius [2006] 3 IR 148, at p. 155:-
“Although the framework decision cannot, in terms of community law, have direct effect (Article 34.2(b) of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a significant number of its provisions, such effect and made it directly applicable within the State. This is achieved, inter alia, by s.10 of the Act of 2003 which provides that where a European arrest warrant has been duly issued in respect of a person “that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state”. The Act of 2003 does not confine itself to including the framework decision in a schedule for reference purposes. There are other provisions of the Act of 2003 which require the Courts to interpret and apply the framework decision directly but it is sufficient for present purposes to note that s.10 means that in deciding on an application for surrender pursuant to the terms of the Act of 2003 the court must apply both the provisions of the Act and the framework decision. …”
Article 11.2 of the Framework Decision provides that a requested person has a “right to be assisted by a legal counsel … in accordance with the national law of the executing Member State”.
The Framework Decision therefore imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise. It merely provides for a right of representation; and then only in accordance with the national law of the executing member state. That right, and more, has unequivocally been vindicated in the present case. The appellant argues, however, that the Act of 2003 imposes a more extensive obligation. The appellant points to s.13(4) of the Act of 2003 which provides inter alia:-
“A person arrested under a European arrest warrant shall, upon his or her arrest, be informed of his or her right to –
…
(b) obtain, or be provided with, professional legal advice and representation, and
(c) where appropriate, obtain, or be provided with, the services of an interpreter.”
In essence, therefore, the appellant contends that s.13(4) recognises a right to be provided with professional legal advice and representation.
Section 13(4) is limited in its own terms. Insomuch as the subsection imposes any obligation, it is as to the provision of information on arrest. The information required to be provided assumes the existence of a right to be provided with a lawyer and, if appropriate, an interpreter. No other provision of the Act however confers, or even refers to, a right to be provided with either a lawyer or an interpreter, and as was made clear in Minister for Justice, Equality and Law Reform v. Altravicius, the Framework Decision cannot be the source of any such right. There was, therefore, much debate in the parties’ written submissions as to the source of any such right, and whether it was statutory or constitutional in origin or derived in some way from the European Convention on Human Rights. It is, however, not necessary to resolve that matter for the purposes of this appeal. The respondent on this appeal did not seek to argue that the reference in s.13(4) was an error, and/or that there was no right to be provided with legal assistance. In those circumstances, this appeal has proceeded upon the same assumption as that made by s.13(4), namely, that there is a right to have legal assistance provided in appropriate cases. That being so, the precise derivation of any such right is not relevant to the resolution of the issue in this case: the only question is whether what was unambiguously made available and offered to the appellant (that is legal assistance under the Scheme) was the provision of legal assistance as of right, there being no suggestion that s.13(4) was not otherwise complied with, in that the appellant was, it appears, informed of the ability to obtain legal assistance under the Scheme.
The appellant’s point in this respect is narrow, but not necessarily any less effective for that. The Scheme is derived from the assurances given to the Supreme Court in open court, on behalf of the Attorney General, in the case of in Application of Woods [1970] I.R. 154. Since that time the Scheme has always operated by the making of a recommendation by the court which the Attorney General almost always follows, although he or she is not obliged to do so. The appellant relies in this regard on the most recent iteration of the Scheme dated the 1st of May, 2000. Clause 8 of that document provides:-
“The Scheme is an administrative, non-statutory arrangement whereby payments are made out of the Vote of the Office of the Chief State Solicitor in respect of certain legal costs in the types of litigation referred to in paragraph 1 of the Scheme in which, for the most part, the State is a party (although the State need not be a party to proceedings which are eligible for the Attorney General’s Scheme). The Attorney General is not bound by the recommendation of the Court.”
The appellant contends quite simply that the Scheme here provides that the Attorney General retains a discretion and that therefore, the Scheme cannot amount to the provision of legal aid as a right: instead it is provided ex gratia and as a matter of benevolence. Put less dramatically, it is suggested that the appellant cannot enforce by action any claim to legal aid under the Scheme, and accordingly it cannot be said to be provided as of right.
It must be apparent that there are a number of significant difficulties with this argument. First, it is an assertion of theoretical form over actual substance. In this case the appellant was repeatedly invited to apply for the Scheme and assured that it would be made available to him. Second, the appellant has at all stages of his involvement with the Irish courts system been represented by experienced and able lawyers. The rules of conduct of the legal profession in Ireland, and indeed the law of tort, do not distinguish between the standards required of lawyers paid on a commercial basis, under a legal aid scheme, on a “no foal no fee” basis, or where they are providing services pro bono. The source of payment is not relevant to the nature of the representation afforded to the individual. The fact is that the appellant here received exactly the substance of what the assumed right requires: legal representation encompassing in this case, representation by senior counsel, junior counsel and a solicitor ; and if necessary, it would be paid for by the State. At the hearing therefore, there was some debate as to whether in such circumstances the appellant had locus standi to raise any challenge to the Scheme. If the issue was compliance with the Framework Decision, then I would think the appellant does lack locus standi and indeed merit, since he had manifestly obtained representation in accordance with national law. Insomuch however as he contends that he has not received such representation as of right, he does have locus standi to make that challenge. Even then, it is difficult to see how the appellant, or anyone else in this position, is in any way affected as a matter of reality by the outcome of this case. Indeed even in the hypothetical case where the court refused to make a recommendation at the close of a case, or the Attorney General subsequently refused to follow the recommendation (and because of the stance taken by the appellant’s lawyers that point could never arise in this case in fact), the requested person would still have received representation. The parties with a grievance in any such situation would be the legal representatives and not the client. The issue for the appellant is almost an academic one ; and I would have had no hesitation in holding that the Court would be entitled to refuse to grant any declaratory relief in the plenary proceedings in the exercise of its discretion on the grounds that the declaration, if granted, would be of no substantial benefit to the appellant.
Insomuch as the appellant advanced this point in answer to the EAW proceedings, however, then it might be said that the rules relating to declaratory relief did not apply, and that he was entitled to argue that there was non-compliance with the Act, since compliance with the Act (and the Framework Decision) is a precondition to return pursuant to section 10. But this argument faces two further difficulties. First, there has been full compliance with the Act. As already observed, section 13(4) only requires the provision of information in relation to the requested person’s entitlement to have legal assistance provided for him, and this was done. Second, there is a subtle but significant shift in the manner in which the appellant makes his case. Section 13(4) does not refer to the provision of legal aid “as of right”: rather it provides for information being provided to a requested person as to his right to have legal representation and if necessary have it provided for him. It can be said that there is virtually no right which is unqualified: the Act of 2003 does not require that there be an unqualified right to legal aid ; and all that is required is that the requested person be informed of the nature and extent of the right accorded to him. To take one example, it is now accepted that the criminal legal aid scheme itself is not the mere provision of a statutory entitlement but the provision of a constitutional right. In Carmody v Minister for Justice Equality and Law Reform [2009] IESC 71 (Unreported, Supreme Court, 23rd October, 2009) Murray C.J. observed, at p. 19:- “One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely vindicating that right.” But that scheme is subject to criteria; most notably in relation to the means of the appellant, and the gravity of the offence with which the person is charged. It could not be suggested, however, that the fact that legal aid is subject to such delimitations means that, where it is actually provided it is not provided as of right . Nor, can it be said that if informed of the limitation on the scheme, a person has not been informed of his or her right to be provided with legal representation, even if such person does not come within the provisions of that scheme. Again taking the example of the Criminal Legal Aid Scheme; the right to be represented, and if unable to pay for representation to have such representation provided, is really an aspect of the right to a trial in due course of law guaranteed by Article 38.1, and the administration of justice required under Article 34.1. A trial on a serious charge without such legal assistance would fall short of those constitutional standards. See State (Healy) v Donoghue [1976] IR 325. The Constitution focuses on the fairness of the trial, not on the precise manner in which any representation is made available. At the same time there are aspects of the Attorney General’s Scheme, which can be said to be rights in the sense of a claim which is legally enforceable. Thus I take it that an applicant has an entitlement to apply for the benefit of the Scheme, and has a further entitlement to have such application considered by the Court and the Attorney General. The practical effect of s. 13(4) in this case is that once the applicant was informed of the circumstances in which he was entitled to benefit from the Attorney General’s Scheme and the limitations on that Scheme, then I consider that he had been informed of his right to have legal assistance provided for him . There was compliance with the section . However, it is not necessary to resolve that issue definitively, because the matter is in my view, put beyond doubt by the evidence and submissions made in this case.
In these proceedings an affidavit was sworn by Mr. Jevon Alcock, a solicitor in the Chief State Solicitor’s Office instructed in this case on behalf of the Attorney General. At paragraph 10 of that affidavit he states:-
I say and believe and I am so informed that while the Attorney General’s Scheme is described as an ex gratia scheme and reference is made to a residual discretion, in all European Arrest Warrant cases, which are a special case by reason of the Act of 2003, that discretion is exercised in only one way. The person who is the subject of the European Arrest Warrant and who obtains the benefit of a court recommendation for payment pursuant to the Attorney General’s Scheme is consequently not dependent upon the goodwill or cooperation of the Attorney General for the payment of fees as suggested ….” [Emphasis added]
It is noteworthy that this statement was repeated both in the written and oral submissions made to this Court. It was not challenged.
In my view, this sworn statement, together with the assurances repeated to this Court, when taken with the provisions of the Scheme itself, amply satisfy any requirement implicit in section 13(4). Since in EAW cases, there is no residual discretion on the part of the Attorney General, the provision of legal services in such cases cannot properly be described as merely a matter of benevolence or discretion. On the contrary, where such services are provided pursuant to the Scheme as so expressed, then such services are in my view properly described as being provided as of right. Accordingly, I would reject this aspect of the appeal.
The second point raised by the appellant is also of general importance. The evidence in this case makes it clear that the appellant will not be prosecuted with the offences set out in the European arrest warrant until the Swedish prosecutors have interviewed him. Furthermore, it is common case that the result of that interview may be that the appellant will not be prosecuted at all. In such circumstances the appellant contends that he should not be surrendered pursuant to the warrant relying in this regard on the provisions of s.21(A) of the Act, as amended. That section provides:-
“21(A) – (1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, 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 for, that offence in the issuing state.
(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.”
There has been an exchange of evidence in relation to this matter. Mr. Hans Ostberg, a Swedish lawyer instructed on behalf of the appellant, has sworn an affidavit. There he states that he has contacted the prosecutor, Anne-Christine Maderud. At paragraphs 6 and 7 of his affidavit he states as follows:-
“6 Arising from that communication I have ascertained that the status of the applicant in Sweden is häktad i sin frånvara which means that the District Court of Gavle has decided the [appellant] is on probable cause suspected of committing serious crimes and the court has decided that the [appellant] should be taken into custody.
7 From the inquiries that I have made I am satisfied and I believe that the [appellant] is not being sought in the Kingdom of Sweden for the purpose of standing trial. I say that the required decision in that regard has not been made and that the surrender of the [appellant] is sought only for the purposes of continuing criminal investigation and not for the purpose of the [appellant] being charged with or standing trial in respect of any offence but more particularly the offences specified in the EAW.”
It is no criticism of the drafting or swearing of this affidavit to observe that the critical conclusion that the appellant is not being sought “for the purpose of … being charged with” is a conclusion in relation to concepts which are contained in s.21A, and therefore matters of Irish law. Furthermore, this aspect of the affidavit seems to consider the processes of investigation and prosecution as mutually exclusive .
Ms. Maderud has sworn a replying affidavit. Paragraphs 5 and 6 are of particular importance:-
“5 The next step in the procedure requires the presence of the accused. Under Swedish law the investigation process may be formally concluded when the accused is present. The accused must be presented with the information obtained in the investigation and given the opportunity to reply to same. However no formal charges can be laid until the conclusion of the investigation as the prosecutor is legally incapable of arriving at a final decision to prosecute until they meet the accused and hear his objections and perhaps obtain additional evidence. This is an essential part of the process and is designed to protect an accused person’s rights. While there is an intention to prosecute on the basis of the available evidence the requested person has at all material times been abroad and has not been available to be interviewed and the procedure cannot be finalised in his absence. The [appellant’s] surrender is therefore sought for the purposes of conducting a criminal prosecution in respect of the above serious offences, although by Swedish law any final decision to prosecute can only be taken if the above procedure is followed and the [appellant’s] right protected. I understand that the system which operates in Sweden is analogous to that which operates in many other countries, for example, Finland, Denmark, Germany, the Netherlands, Spain, Estonia and Austria. Furthermore, Swedish law does not permit trial in absentia.
6 …I am at a loss to understand how the [appellant] could reasonably be of the belief that he is not wanted for the purpose of a criminal prosecution. ….Under Swedish law and pursuant to the Framework [Decision] of the 13th June 2002, the Kingdom of Sweden only issues European Arrest Warrants for the purposes of either conducting a criminal prosecution or executing a custodial sentence or detention order. This European Arrest Warrant is issued for the former purpose.”
The appellant also relies on the correspondence between members of the Swedish police force and the appellant’s Irish solicitor, already referred to at the outset of this judgment. As already discussed, there must be considerable doubt as to the admissibility in these proceedings of such statements. In truth, the frank correspondence between the Swedish police and the appellant’s Irish lawyers only illustrates an aspect of this case that is central to the appeal, namely that the Act, and the procedure under it, necessarily relates to a sometimes difficult intersection between different legal systems and cultures. The issue is ultimately however a matter of Irish law, in the light of a situation where the basic facts (as opposed to legal conclusions to be drawn from them) are not in controversy between the parties.
The issue here, however, is not merely one of the evidence before the Court. As is apparent, s.21A(2) contains a presumption that a decision has been made to charge the person and try him or her for the offence. Furthermore, the opening lines of the EAW itself, request that the person mentioned below “be arrested and surrendered for the purposes of conducting a criminal prosecution …” That statement, and the further statements made in Ms. Maderud’s affidavit in relation to the practice of the Kingdom of Sweden, must also be read in the light of recital 10 of the Framework Decision which describes “[t]he mechanism of the European arrest warrant [as being] based on a high level of confidence between Member States”. It is clear, therefore, that cogent evidence is required to raise a genuine issue as to the purpose for which a warrant has been issued and surrender sought. This was emphasised in the judgment of Murray C.J. in Minister for Justice v. McArdle [2005] 4 IR 260, 268:-
“The European Arrest Warrant Act 2003 gives effect in this jurisdiction to the European Council Framework Decision of the 13th June, 2002, on the European arrest warrant and the surrender procedures between member states. The recitals to that decision make reference to the implementation of “the principle of mutual recognition of criminal proceedings” and in particular recital number 6 which states “the European arrest warrant provided for in this Framework Decision if the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council refer to as the ‘cornerstone’ of judicial cooperation”. Accordingly, it seems to me that where a judicial authority of a Member State issues a European Arrest Warrant and that is accompanied by a certificate referred to in s.11(3) of the Act of 2003, both of which state and certify respectively, that the surrender of the person named in the warrant is sought for the purpose of prosecution and trial, that must be acknowledged as at least prima facie evidence of the purpose for which the request is made. It would, in my view, normally require cogent evidence to the contrary to raise a genuine issue as to the purpose for which the warrant in question has been issued and the surrender sought.”
The Chief Justice also observed, at pp. 266 to267:-
“The surrender of a person for purpose of prosecution and trying him or her on a criminal offence means that the decision taken by the relevant authority to prosecute and try that person is not contingent on the outcome of further factual investigation. That requirement does not of course preclude the pursuit of any continuing or parallel investigation into the circumstance of the offence. It means that the decision to prosecute is not dependent on such further investigation producing sufficient evidence to justify putting a person on trial.”
In approaching the question of the interpretation of the Act, it is necessary to keep both the nature of the Act and its origins in view. One thing which can be said with assurance is that the Act does not intend that words such as “charge” and “prosecution” should only be understood as meaning a charge or prosecution as in the Irish criminal justice system. The Act establishes a procedure for the reciprocal execution of warrants with legal systems, almost all of which differ in some ways ,even at times significantly, from that of this jurisdiction. If the Act intended that only warrants emanating from a criminal justice procedure which was identical to that of Ireland would be executed here, then the Act would manifestly fail to achieve its object, and indeed that of the Framework Decision. A similar point was made in a slightly different context by Lord Steyn in the United Kingdom House of Lords case of Re Ismail [1999] 1 AC 320 at pp. 326 to 327:-
“Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition [of the word “accused]… It is, however, possible to state in outline the approach to be adopted. The starting point is that “accused” in s.1 of the Act of 1989 is not a term of art. It is a question of fact in each case that the person passes the threshold test of being an “accused” person. Next there is the reality that one is concerned with the contextual meaning of “accused” and statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg v. Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of “accused” in an extradition treaty: Reg v Government of Switzerland [1999] AC 54, 62G. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of the information or the preferring of an indictment …
It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an “accused” person. All one can say with confidence is that a purposive interpretation of “accused” ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an “accused” person is satisfied.”
The origins of the Act of 2003 are also important. The Act is the mechanism by which this State performs its obligation to ensure that the objectives of the Framework Decision, are achieved. As was pointed out by Fennelly J. in Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518 at 544:-
“[t]he Act of 2003 as a whole … should be interpreted “as far as possible in the light of the wording of the Framework Decision in order to attain the result which it pursues”.”
Taking this approach to the interpretation of s.21(A), the relevant provision of the Framework Decision is that contained in the opening words of article 1(1). This provides that a European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender to another member state of:-
“The… requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” [Emphasis added]
It is also noteworthy that s.10 of the European Arrest Warrant Act 2003 (as substituted by s.71 of the Criminal Justice (Terrorist Offences) Act 2005 (“the Act of 2005”) and as amended by s. 6 of the Criminal Justice (Miscellaneous Provisions) Act 2009), provides that where a judicial authority in an issuing state issues a European Arrest Warrant in respect of a person “against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates … that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state”. (Emphasis added)
Thus, the concept of the “decision” in s.21A should be understood in the light of the “intention” referred to in s.10 of the Act and the “purpose” referred to in article 1 of the Framework Decision.
When s.21A speaks of “a decision” it does not describe such decision as final or irrevocable, nor can it be so interpreted in the light of the Framework Decision. The fact that a further decision might be made eventually not to proceed, would not therefore mean that the statute had not been complied with, once the relevant intention to do so existed at the time the warrant was issued. The Act does not require any particular formality as to the decision; in fact, s.21 focuses on ( and requires proof of ) the absence of one. The issuing state does not have to demonstrate a decision. A court is only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that person. This would be so where there is no intention to try the requested person on the charges at the time the warrant is issued. In such circumstances, the warrant could not be for the purposes of conducting a criminal prosecution.
The requirement of the relevant decision, intention or purpose can best be understood by identifying what is intended to be insufficient for the issuance and execution of a European arrest warrant. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s.10 of the Act of 2003) Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of section 21A. As the Chief Justice pointed out in Minister for Justice v. McArdle, that result is not altered by the fact that there may be a continuing investigation, or indeed that such investigation will be assisted by the return of the requested person.
It would be entirely within the Framework Decision and the Act if, after further investigation, the prosecution authorities decided not to prosecute because, for example, they had become convinced of the requested person’s innocence. There would still have been an “intention” to prosecute, and a decision to do so at the time the warrant was issued and executed. Accordingly the warrant would have been issued for the purposes of conducting a criminal prosecution. What is impermissible is that a decision to prosecute should be dependent on such further investigation producing sufficient evidence to put a person on trial. In such a situation there is in truth no present “decision” to prosecute, and no present “intention” to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. In such a case any warrant could not be said to be for the purposes of conducting a criminal prosecution: instead it could only properly be described as a warrant for the purposes of conducting a criminal investigation. In such circumstances, a court would be satisfied under s.21A that no decision had been made to charge or try the requested person.
It is noteworthy, that on the evidence in this case, the position in relation to the appellant is not by any means unusual in the Swedish system, and indeed represents the norm in a number of European countries. It would be a surprising result if either the Framework Decision or the Act of 2003 were to be interpreted so as to prevent the execution of the European arrest warrant in respect of such countries and where (as here) the requesting authority had in the terms of the warrant, and in sworn evidence in the case, stated that the warrant was issued for the purposes of conducting a criminal prosecution. The High Court was entirely correct to conclude that there was here a clear, intention to bring proceedings within the meaning of s10, and that the warrant could be said to be for the purposes of conducting a criminal prosecution within the meaning of the Framework Decision and that the only thing which stood in the way of commencement of such prosecution was the requirement of presence of the accused and the interview where he could respond to the investigation. In short the intention of the Swedish prosecution authority to bring the appellant before the Swedish Court for the purpose of being charged is but a step in the prosecution process. For the reasons set out above the High Court was correct to conclude that the respondent was not being sought only to be questioned as part of the investigation and that there was a decision to charge the appellant within the meaning of the Act. Certainly even without the presumption contained in s.21A(2), the section requires clear proof. Once a Court finds the European arrest warrant to be in order (and therefore on its face a request made for the purpose of prosecution or trial), then before a Court can refuse to surrender a person requested under such a warrant, it must be satisfied by cogent evidence to the contrary that a decision has not been made to charge the particular person with, and try him or her for, the offence. This has not been established. I would dismiss the appeal.
Minister for Justice Equality and Law Reform -v- Desjatnikovs
[2008] IESC 53 (31 July 2008)
Court: Supreme Court
Composition of Court: Murray C.J., Denham J., Finnegan J.
Judgment by: Denham J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Denham J.
Appeal allowed – set aside High Court Order
Murray C.J., Finnegan J.
Outcome: Allow And Set Aside
THE SUPREME COURT
Record No. 287 of 2007
Murray C.J.
Denham J.
Finnegan J.
Between/
The Minister for Justice, Equality and Law Reform
Applicant/Respondent
and
Ivans Desjatnikovs
Respondent/Appellant
Judgment delivered the 31st day of July, 2008 by Denham J.
1. This is an appeal by Ivans Desjatnikovs, the respondent/appellant, “the appellant”, from an order and judgment of the High Court (Peart J.), given on the 10th October, 2007, which ordered the surrender of the appellant to the Republic of Latvia on a European arrest warrant.
2. The European arrest warrant was issued by a judicial authority in Riga on the 7th December, 2005. It was endorsed by the High Court for execution on the 23rd January, 2007. The
appellant was arrested on the 31st January, 2007 and brought before the High Court. Subsequently the matter came before the High Court for determination pursuant to s.16 of the European
Arrest Warrant Act, 2003.
3. Offence
At issue in this appeal is the offence on the European arrest warrant, and whether it is one upon which an order may be made directing the surrender of the appellant.
4. The offence on the European Arrest Warrant
The European arrest warrant states that it relates to one offence. It provides at paragraph (e):-
“(e) Offences
This warrant relates to in total 1 (one) criminal offence.
Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person: Ivans Desjatnikovs, id. no. 300653-10235, being the chairman of the board of the holding company – pawnshop “OMEGA” (reg. No. 40003231019, legal address: Riga street 34, Daugavpils), being the materially responsible person, in January-February 2002 handed out to himself for his economic needs from the cash desk of the pawnshop sums of money in cash and up till now had not accounted for disposal of 45000 Lvl, as well as had not returned the money in the cash desk. The power to act with the property and means of the pawnshop was delegated to I. Desjatnikovs according to Article 22 of Statutes of the holding company – pawnshop “Omega”. The money was handed out by filling in the following documents:
– cash expense order No. 1 from 2 January 2002 for the amount of 44000,00Lvl;
– cash expense order No. 8 from 30 January 2002 for the amount of 552,15Lvl;
– cash expense order No. 9 from 6 February for the amount of 516,85Lvl.
I.Desjatnikovs has signed the mentioned orders as the materially responsible person, confirming the fact of handing out of the money from the cash desk, as well as the receiver of the money, confirming the fact of receipt of the money. Moreover the fact of money receipt was entered in the cashbook of the pawnshop, where in pages No. 1 on 2 January 2002, No. 18 on 30 January 2002 and No. 22 on 6 February 2002 I.Desjatnikovs, had placed his signature.
Also in pre-trial investigation it is established that Ivans Desjatnikovs, being the chairman of the board of the holding company – pawnshop “Omega”, in 2001, the more precise date is not established, presenting himself as an employee of the mentioned pawnshop, received money in the amount of 7300Lvl as a loan from his acquaintance Anna Greckina and undertook to pay to A.Greckina 2% of the amount monthly. Further on I. Desjatnikovs did not fulfil his obligations. Thereof the heir of A.Greckina’s rights – her daughter Natalija Iljina, born in 1951, insisted on the official drawing up of the afore mentioned loan agreement. On 17.11.2001 I.Desjatnikovs, identifying himself as the manager of the pawnshop “Omega”, actually being the chairman of the board of the pawnshop, and Natalija Iljina has signed the loan agreement, according to which the creditor Natalija Iljina grants the pawnshop “Omega” for a term of one year sum of money in the amount of 7300Lvl for production activities and the pawnshop undertakes to pay to Natalija Iljina monthly 2% of the amount on the 12th date of each month within the period from 17.11.2001 till 17.11.2002. I.Desjatnikovs did not issue to Natalija Iljina the copy of the cash order, did not transfer the sum of money in the amount of 7300 Lvl to the account of the pawnshop and misappropriated it.
Due to the above mentioned activities of I.Desjatnikovs the holding company – pawnshop “Omega” has suffered the material loss in the amount of 45000Lvl. Natalija Iljina has suffered the material loss in the amount of 7300Lvl.”
Thus the warrant expressly states that it refers to one offence, but it is not clear which is the offence. Is it the initial facts relating to the three alleged occasions on which he handed out to himself cash from the cash desk of the pawnshop? Yet there are also facts about an allegedly unrepaid loan? I agree with the finding of the learned trial judge that it is not clear to which set of facts the one offence relates, i.e. the taking of cash or the unrepaid loan.
On this ground alone I would have a concern in ordering the surrender of the appellant, as the situation is ambiguous. However, my decision does not turn on this issue.
5. Obligation to surrender
The relevant portion of s.10 of the European Arrest Warrant Act, 2003, “the Act of 2003”, provides that where a judicial authority in an issuing state issues a European arrest warrant in respect of a person against whom the State intends to bring proceedings for the offence to which the European arrest warrant relates, that person shall, subject to and in accordance with the provisions of the Act of 2003 and the Framework Decision, be arrested and surrendered to the issuing state. This case revolves around “the offence to which the European arrest warrant relates”.
6. Form of the European Arrest Warrant
Section 11(1) of the Act of 2003 mandates that the European arrest warrant shall in so far as it is practicable be in the form set out in the Annex to the Framework Decision and shall specify matters as set out there. This includes, for example, the name and nationality of the person in respect of whom the European arrest warrant is issued. As to the offence, the requirement is to specify the offence to which the European arrest warrant relates, including the nature and classification under the law of the issuing state of the offence concerned. It is also required to specify the circumstances in which it is alleged that the offence took place, including the time and place and degree of involvement. The penalties are required to be stated, inter alia. Thus a significant amount of detail is required.
The European arrest warrant in this case is in the form set out in the Annex to the Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1 18.7.2002. The Framework Decision and the Annex are in Part B of the Act of 2003. However, in parts of the European arrest warrant before the Court, where there are alternatives, an appropriate alternative is not indicated. This makes the warrant somewhat unclear. Paragraph (e) follows the form of paragraph (e) of the Annex to the Framework Decision. The number of offences to which the warrant relates is stated, it is specifically stated that it is one offence. A description is given of the circumstances. The nature and classification of the offence is given. The precise wording of (e) is followed and the list of offences is set out with boxes beside each offence to enable the relevant offence to be identified by a tick.
7. Three Options
In this case three options are considered as methods by which an offence may be identified as permitting the surrender of a person on a European arrest warrant. These options are: (a) a corresponding offence; (b) an offence on the list in Article 2.2 of the Framework Decision, in paragraph (e) of the warrant, which is ticked in the appropriate box; and (c) it is submitted that, there being no box ticked on the list, the executing judicial authority in the requested state may, on the facts set out in the warrant, hold that the offence is one specified on the list. I shall consider these three options separately.
8. First Option – (a) a corresponding offence
Pursuant to s.38 of the Act of 2003, a person shall not be surrendered to an issuing state in respect of an offence unless (a) the offence corresponds to an offence under the law of the State, and (b) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment. Thus the offence must be a corresponding offence with a required level of penalty.
9. The Laws of Latvia
The warrant in this case describes the law of Latvia as:-
Nature and legal classification of the offence(s) and the applicable statutory provision/code:
Criminal Law (in force from 01.04.1999)
Chapter XVIII: Criminal Offences against Property
Section 179. Misappropriation
Illegally acquiring or wasting property of another, if such has been committed by a person to whom such property been entrusted or in whose charge it has been placed (misappropriation), if committed on a large scale.
(1) For a person who commits illegally acquiring or wasting property of another, if such has been committed by a person to whom such property been entrusted or in whose charge it has been placed (misappropriation),
the applicable sentence is deprivation of liberty for a term not exceeding five years, or custodial arrest, or community service, or a fine not exceeding fifty times the minimum monthly wage.
(2) For a person who commits misappropriation, if commission thereof is repeated, or by a group of persons pursuant to prior agreement, the applicable sentence is deprivation of liberty for a term of not less than three years and not exceeding eight years, with or without confiscation of property.
(3) For a person who commits misappropriation, if commission thereof is on a large scale, or who commits misappropriation of narcotic, psychotropic, powerfully acting, poisonous or radioactive substances or explosive substances, firearms or ammunition,
the applicable sentence is deprivation of liberty for a term of not less than six years and not exceeding fifteen years, with confiscation of property.
(With amendments of the law on 12.02.2004)”
The emphasis indicated above is as it appears on the warrant.
10. Definition of a corresponding offence
Section 5 of the Act of 2003, as amended by s.70 of the Criminal Justice (Terrorist Offences) Act, 2005, defines a corresponding offence for the purpose of the Act. It states:-
“… 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.”
11. No correspondence
Quite correctly in my view, the learned High Court judge held that the court must first decide whether the acts alleged to have been done by the appellant would, if committed in Ireland on the 7th December, 2005, constitute an offence under Irish law. If they would then there would be a corresponding offence and surrender must be ordered.
In this case the warrant refers to a single offence of “misappropriation”. It was submitted that the corresponding offence is that arising under s.4(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and s.6 of the same Act. Section 4(1) provides:-
“Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.”
The learned High Court judge pointed out that the law in this State required a dishonest intent, he reviewed the facts on the warrant and held:-
“Each of these matters undoubtedly gives rise to a civil claim for the recovery of money by Omega in the first instance and by Ms. Iljina secondly. But can it be said that these actions by the respondent would give rise to an offence of theft under s. 4 in this State? I think not. There is no act alleged which comes within the concept of dishonesty referred to in s. 4, and that gap precludes correspondence with the offence here. In addition it seems to me that there is absent also any fact to indicate an intention on the part of the respondent to deprive Omega or Ms. Iljina of the sums in question either temporarily or permanently and this would be a necessary ingredient of the offence here. In fact the allegation in respect of the first transaction is that he left an IOU. That would not be evidence of intention to deprive the company of the money, and the second transaction was committed to writing in the form of a loan agreement. Those facts do not seem to me to correspond to an offence of theft under s.4 given the absence of dishonest intent alleged in the factual background.”
Also, the High Court held that the offence did not correspond with an offence under s.6, as there was no allegation of dishonest intent.
The High Court looked at the facts and acts alleged on the warrant, analysed whether they would constitute an offence in Ireland, and reached a conclusion. I would affirm the finding of the High Court that there is no corresponding offence. Consequently the first option is not applicable to this case.
12. Second option – a tick on the list
An alternative to the requirement of correspondence is that the offence is an offence to which Article 2.2 of the Framework Decision applies and the offence is identified on the list by a tick in the appropriate box on the European arrest warrant.
13. Framework Decision Article 2.2
The Council Framework Decision of 13 June 2002 sets out in Article 2 the scope of the European arrest warrant. It identifies the “offences” for which a European arrest warrant may issue. It provides:-
“1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.
2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:
– participation in a criminal organisation,
– terrorism,
– trafficking in human beings,
– Sexual exploitation of children and child pornography,
– corruption,
– illicit trafficking in narcotic drugs and psychotropic substances,
– illicit trafficking in weapons, munitions and explosives,
– fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ financial interests,
– laundering of the proceeds of crime,
– counterfeiting currency, including of the euro,
– computer-related crime,
– environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
– facilitation of unauthorised entry and residence,
– murder, grievous bodily injury,
– illicit trade in human organs and tissue,
– kidnapping, illegal restraint and hostage-taking,
– racism and xenophobia,
– organised or armed robbery,
– illicit trafficking in cultural goods, including antiques and works of art,
– swindling,
– racketeering and extortion,
– counterfeiting and piracy of products,
– forgery of administrative documents and trafficking therein,
– forgery of means of payment,
– illicit trafficking in hormonal substances and other growth promoters,
– illicit trafficking in nuclear or radioactive materials,
– trafficking in stolen vehicles,
– rape,
– arson,
– crimes within the jurisdiction of the International Criminal Court,
– unlawful seizure of aircraft/ships,
– sabotage.
3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended.
4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.”
[the emphasis is added].
Thus in this option the Framework Decision clearly and plainly refers to offences in the issuing Member State, as they are defined by the law of the issuing State, not requiring verification of double criminality, but giving rise to surrender.
14. European Arrest Warrant Act, 2003, s.38(1)(b)
The relevant Irish law is to be found in s.38(1)(b) of the Act of 2003 which provides for this second option in the following words:-
“(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies or is an offence that consists of conduct specified in that paragraph, and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than 3 years.”
This option envisages a new approach to rendition of persons across State borders. (i) No double-criminality is required. (ii) It is a new development in that the descriptions of the offences are very general and somewhat vague. They are not precise legal definitions. (iii) It relates to a more serious type of offence, the penalty required in the issuing state is imprisonment for a maximum period of not less than 3 years. This is a more serious offence than that identified in the first option, where correspondence is required.
15. Detail of the Warrant
The warrant in this case follows the form set out in the Annex to the Framework Decision. The warrant (as translated from the Latvian) states:-
“I. If applicable, tick one or more of the following offences punishable in the issuing Member State by a custodial sentence or detention order of a maximum of at least 3 years as defined by the laws of the issuing Member State:…”
Thereafter are listed the offences pursuant to the Framework Decision and the Act of 2003, with boxes beside each named offence.
16. Second Option not met
None of the listed offences on the warrant are ticked. The High Court found that the issuing state had not marked any of the offences contained in the list. The High Court held, and I would affirm, that as no tick appears on the warrant in any box on the list, the legal requirements are not met, and this warrant does not meet the requirements of the second option.
17. Third Option
The High Court held that there was nothing in Article 2.2 which states that an issuing authority must tick or otherwise mark the appropriate offences on the list appearing in paragraph (e) of the warrant, the list being identical with the list set forth in Article 2.2 of the Framework Decision. The High Court held:-
“Article 2.2 in my view places an obligation upon the requested state to surrender in respect of offences coming within the listed offences. That obligation is not dependent upon the offence in question being ticked or otherwise marked by the issuing authority. In the present case the issuing authority has not ticked any offence, though it might very well have chosen to do so under the general heading “fraud”. The fact that the issuing authority has chosen to set forth factual details of the offences in paragraph (e) instead of ticking the offence of fraud, does not preclude this court from concluding that the facts as set forth in the warrant constitute “an offence that consists of conduct specified in that paragraph” as provided in s. 38(1)(b).”
The High Court held that there were three options. The learned High Court judge stated:-
“It seems to me that the Oireachtas has provided clearly for the fulfilment of the obligations under Article 2.2 of the Framework Decision, which makes no reference to the issuing authority marking the offence or designating it as such, by requiring this Court to decide the matter in a number of alternative ways, (a) by correspondence being made out in accordance with s. 5 of the Act, (b) by the issuing authority actually nominating the offence as an Article 2.2 offence by ticking or otherwise marking the offence in the list contained in paragraph (e) of the warrant, and finally (c) by deciding whether the conduct alleged consists of conduct coming within any of the offences contained in that list, whether it has been ticked or not. Otherwise, the words “an offence that consists of conduct specified in that paragraph” appear otiose.”
18. Issue on appeal
This finding of the High Court gives rise to the issue on appeal. The question is whether under the law are there two methods of identifying offences, i.e. two options, by correspondence, or if by a tick on the list of offences, or, whether there are three options, as found by the High Court?
19. Facts
The warrant gave a description of the facts. It provides:-
“II. Full description of offence(s) not covered by section I above: Ivans Desjatnikovs, id.no. 300653-10235, being the chairman of the board of the holding company – pawnshop “Omega”, being the materially responsible person, in January-February 2002 handed out for his economic needs in Riga street 34, Daugavpils from the cash desk of the pawnshop sums of money in cash and up till now he had not accounted for disposal of 45000Lvl, as well as had not returned the money in the cash desk. The power to act with the property and means of the pawnshop was delegated to I.Desjatnikovs according to Article 22 of Statutes of the holding company – pawnshop “Omega”. The money was handed out by filling in the following documents:
– cash expense order No. 1 from 2 January 2002 for the amount of 44000,00Lvl;
– cash expense order No. 8 from 30 January 2002 for the amount of 552,15Lvl;
– cash expense order No. 9 from 6 February for the amount of 516,85Lvl.
I.Desjatnikovs has signed the mentioned orders as the materially responsible person, confirming the fact of handing out of the money from the cash desk, as well as the receiver of the money, confirming the fact of receipt of the money. Moreover the fact of money receipt was entered in the cashbook of the pawnshop, where in pages No.1 on 2 January 2002, No.18 on 30 January 2002 and No. 22 on 6 February 2002 I.Desjatnikovs had placed his signature. Also in pre-trial investigation it is established that Ivans Desjatnikovs, being the chairman of the board of the holding company – pawnshop “Omega”, in 2001, the more precise date is not established, presenting himself as an employee of the mentioned pawnshop, received money in the amount of 7300Lvl as a loan from his acquaintance Anna Greckina and undertook to pay to A.Greckina 2% of the amount monthly. Further on I.Desjatnikovs did not fulfil his obligations. Thereof the heir of A.Greckina’s rights – her daughter Natalija Iljina, born in 1951, insisted on the official drawing up of the aforementioned loan agreement. On 17.11.2001 I.Desjatnikovs, identifying himself as the manager of the pawnshop “Omega”, actually being the chairman of the board of the pawnshop, and Natalija Iljina has signed the loan agreement, according to which the creditor Natalija Iljina grants to the pawnshop “Omega” for a term of one year sum of money in the amount of 7300Lvl for production activities and the pawnshop undertakes to pay to Natalija Iljina monthly 2% of the amount on the 12th date of each month within the period from 17.11.2001 till 17.11.2002. I.Desjatnikovs did not issue to Natalija Iljina the copy of the cash order, did not transfer the sum of money in the amount of 7300Lvl to the account of the pawnshop and misappropriated it.
On 14 March 2002 I.Desjatnikovs left Latvia not fulfilling his debt commitments and had not returned till the present day.
Due to the above mentioned activities of I.Desjatnikovs the holding company – pawnshop “Omega” has suffered the material loss in the amount of 45000Lvl. Natalija Iljina has suffered the material loss in the amount of 7300Lvl. It is established that the misappropriated money was not used in the interests of the pawnshop “Omega” and Natalija Iljina and that the criminal offences was committed by I.Desjatnikovs alone, he had no accomplices.
In this way Ivans Desjatnikovs repeatedly committed illegal acquiring of property of another on a large scale, being a person to whom such property been entrusted, that is committed misappropriation – a criminal offence prescribed by Section 179 three of Criminal Law.”
The warrant then described, in optional information, other circumstances:-
“This criminal case was initiated on 10 April 2003 in Daugavpils City and District Police office according to Section 179 Part three of Criminal Law. The guilt of Ivans Desjatnikovs is confirmed with the statement of the Forensic department of Ministry of Interior on 29 January 2004 about documentary revision of the holding company – pawnshop “Omega”, opinion on 29 October 2003 of Expertise Department of Central Criminal Police of the State Police of the Ministry of Interior about performance of handwriting expertise, evidence of the victim and the victim’s representative, evidence of witnesses and other case materials. It is established that on 14 March 2002 Ivans Desjatnikovs left Latvia and had not returned till the present day. On 15.06.2004 the decision was made to start the search of the accused I.Desjatnikovs, thereof in the Criminal Police of Daugavpils City and District Police office there was the search case No. 1180032004 initiated. During the course of the pre-trial investigation I.Desjatnikovs was sent several writs of summons to arrive in the police and prosecutor’s office, but he never arrived. During the pre-trial investigation it is established that I. Desjatnikovs has phoned several times from Ireland to his wife Ehatennu Desjatnikova and the representative of the pawnshop in Daugavpils, explaining them that he was in Ireland, but never specified his address or whereabouts in Ireland. From the evidence given by his wife and the representative it results that he knew that there was a criminal case initiated regarding his activities. But I. Desjatnikovs continued to stay in the territory of Ireland. He is in Ireland today as well. In this case due to the afore mentioned circumstances it was not possible officially to notify I.Desjatnikovs about the measures executed against him and he was not summoned to the court session in which the question about his arrest was adjudicated accordingly.
On 21 July 2004 the judge of Daugavpils Court rendered a judgment in absentia regarding application of a security measure – arrest to I.Desjatnikovs.
Thus it is established during the pre-trial investigation as well during the course of search measures that I.Desjatnikovs is in Ireland, but his address is not known.”
20. The Law
The terms of Article 2.2 of the Framework Decision and of s.38(1) of the Act of 2003 have been set out previously in this judgment. The issue for determination, whether or not there is a third option, depends on a construction of the law.
21. The list system
The Framework Decision addressed the scope of the European arrest warrant in Article 2. The list system is a new approach of enhanced cooperation between Member States enabling a speedier process of extradition. This is made possible by the mutual confidence which exists between Member States.
In contrast to the requirement of correspondence, this new list system does not require double criminality. The executing state is not required to verify double criminality in respect of offences identified on the list of thirty two categories of offences, but the offence should be punishable by a penalty as set out in law. The matter of penalty is not in issue in this case.
The fact that there is a precise description of the facts of the case is important, even though the issue of double criminality is not required to be considered. It is important that there be a good description of the facts. An arrested person is entitled to be informed of the reasons for his arrest and of any charge against him in plain language which he can understand. Also, in view of the specialty rule, the facts upon which a warrant is based should be clearly stated.
22. Absence of requirement of double criminality
The most significant change in this new list system is the absence of the requirement of double criminality. The dispensing of the requirement for double criminality was the subject of the decision of the ECJ in Advocaten voor de Wereld VZW v. Leden van de Ministerraad, (Case C 303/05) [2007] ECR I -3633, where it was held:-
“Accordingly, while Article 2(2) of the Framework Decision dispenses with verification of double criminality for the categories of offences mentioned therein, the definition of those offences and of the penalties applicable continue to be matters determined by the law of the issuing Member State, which, as is, moreover stated in Article 1(3) of the Framework Decision, must respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU, and, consequently, the principle of the legality of criminal offences and penalties.”
Of the list of offences the judgments stated:-
“With regard, first, to the choice of the 32 categories of offences listed in Article 2(2) of the Framework Decision, the Council was able to form the view, on the basis of the principle of mutual recognition and in the light of the high degree of trust and solidarity between the Member States, that, whether by reason of their inherent nature or by reason of the punishment incurred of a maximum of at least three years, the categories of offences in question feature among those the seriousness of which in terms of adversely affecting public order and public safety justifies dispensing with the verification of double criminality. Consequently, even if one were to assume that the situation of persons suspected of having committed offences featuring on the list set out in Article 2(2) of the Framework Decision or convicted of having committed such offences is comparable to the situation of persons suspected of having committed offences other than those listed in that provision, the distinction is, in any event, objectively justified.
With regard, second, to the fact that the lack of precision in the definition of the categories of offences in question risks giving rise to disparate implementation of the Framework Decision within the various national legal orders, suffice it to point out that it is not the objective of the Framework Decision to harmonise the substantive criminal law of the Member States and that nothing in Title VI of the EU Treaty, Articles 34 and 31 of which were indicated as forming the legal basis of the Framework Decision, makes the application of the European arrest warrant conditional on harmonisation of the criminal laws of the Member States within the area of the offences in question.”
This upholding of the list scheme in Article 2.2, dispensing with double criminality, is relevant to both the second and third option. It affirms a process which does not require double criminality. I also note that, while it was not the issue of the case, the ECJ stated that the definition of the offences and of the penalties applicable continue to be matters for the law of the issuing state.
23. High Court basis for third option
The High Court based its decision on the third option on what is perceived as the lack of any specific requirement that the issuing state mark or indicate the relevant offence on the list. The learned trial judge held that the courts in this State should decide whether the conduct alleged constitutes conduct coming within the offences on the list, whether ticked or not. He based this decision on the words “an offence that consists of conduct specified in that paragraph” in s.38(1)(b) of the Act of 2003.
24. Decision on third option
24.1 Thus the decision on this third option requires a construction of the words of s.38(1)(b) of the Act of 2003. These words are:-
“(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies or is an offence that consists of conduct specified in that paragraph, and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than 3 years.”
These words are not exactly the same as those in Article 2.2 of the Framework Decision. The Framework Decision states:-
“2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:”
The Framework Decision words are precise and clear. They refer to the list of offences. They require a specific penalty – which is more serious that that required in the correspondence option – and which is not in issue in this case. The Framework Decision specifically refers to offences “as they are defined by the law of the issuing Member State”. This is a key requirement. The definition of the offences is a matter for the issuing state and it is specifically stated that there is no requirement of double criminality.
This portion of the Framework Decision is transposed into Irish law by s.38(1)(b) of the Act of 2003. The words of s.38(1)(b) are not precisely the same as those of the Framework Decision. However, the intent of the Oireachtas is clearly expressed. It states that it applies to an offence where “the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies”. The object of the Act of 2003 is to transpose the Framework Decision into Irish law, and this section specifically states that it covers an offence to which Article 2.2 of the Framework Decision applies.
In s.38(1)(b) of the Act of 2003 there then follows the phrase upon which the High Court rested its decision: “or is an offence that consists of conduct specified in that paragraph”. The balance of the section refers to penalty and is not in issue.
The learned High Court judge held that the third option arose on the words, “or is an offence that consists of conduct specified in that paragraph”, and that if such a construction was not taken the words were otiose. Thus it is essentially a matter of construing s.38(1)(b) of the Act of 2003 and these words in the section. However, these words cannot be taken in isolation, the fact that the Act of 2003 is the transposition into Irish law of the Framework Decision is an important factor.
24.2 I have sympathy for the learned trial judge in construing this Act of 2003 and applaud his perseverance in the face of the wording. However, I respectfully disagree with his analysis of the third option.
The Irish Statute should as far as possible be construed in accordance with the Framework Decision. Pupino (Case C-105/03) [2005] ECR I-5285 provides that the national court is required to take into consideration all the rules of national law and to interpret them, as far as is possible, in light of the wording and purpose of the Framework Decision. The role of the Court is to try and reach an interpretation which is in accordance with the Framework Decision.
24.3 As this is essentially a matter of construing s.38(1)(b), I have found little assistance from case law elsewhere on this issue of the third option. It may well be because of the terms of the relevant national laws.
The Act of 2003 must be read in the context of the Framework Decision. Box (e) of the Annex contains a form of European arrest warrant. Box (e) is headed “Offences”. At I it is stated:-
“If applicable, tick one or more of the following offences…”
Clearly this mandates a decision. On the plain meaning of the words of the Framework Decision an exception was made to the principle of double criminality by the creation of the list system in Article 2.2. This exception requires a decision by the issuing state, which decision requires to be communicated in the form of warrant in the Annex to the Framework Decision, which expressly requires a tick.
24.4 The issue is whether the Act of 2003 has introduced a third option into the law in Ireland, in addition to the second option.
While the Framework Decision does not itself expressly require that a tick should be placed opposite the relevant offence in the box provided on the form of the warrant annexed to the Framework Decision, Article 8 of the Decision, under the heading: “Content and form of the European arrest warrant, provides:-
‘The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
…
(d) the nature and legal classification of the offence, particularly in respect of Article 2;'”
Consequently this mandatory requirement refers back to the express requirement set out in the form of European arrest warrant, as set out in the previous paragraph.
It is clear for this reason that the form of European arrest warrant annexed to the Framework Decision, which the Member States are required to follow as far as possible, does expressly require that a tick be placed against the relevant offence.
Also, inherent in the Framework Decision and the Act of 2003 is the requirement that the issuing state should identify the offence and its penalty. This is a logical and reasonable approach as it is the law of the issuing state under which the offence exists, and on which the issuing state seeks the surrender of a person.
There may be a degree of confusion with the situation in cases where corresponding offences are in issue. There an Irish judge may consider the facts and acts on the warrant. However, that approach is not to determine if it is an offence in the issuing state. It is to determine if the facts and acts are an offence under Irish law, of which he has judicial knowledge.
It would be an extraordinary leap, a major step, to give to an Irish High Court the role of deciding whether on the facts the warrant refers to an offence in the issuing state. The words of Article 2.2 of the Framework Decision are clear, and they do not establish such a system. This radical change was found by the learned High Court judge to have been introduced into Ireland by the words “or is an offence that consists of conduct specified in that paragraph” in s.38(1)(b) of the Act of 2003.
It is the duty of the Court to interpret s.38(1)(b) of the Act of 2003 as far as possible in light of the wording and purpose of the Framework Decision – and to construe the Act of 2003 in accordance with the Framework Decision.
It appears to me that there are a number of important factors:-
(i) This suggested third option would be a radical change in the law. As such it would have to be established clearly and expressly.
(ii) The Oireachtas has, on the contrary, expressed a different intent, i.e. that the European arrest warrant shall be as far as practicable in the form set out in the Annex to the Framework Decision: as provided for by s.11 of the Act of 2003.
(iii) A decision is required of the issuing state. The requirement of a decision by the issuing state is a matter of common sense. If the issuing state wishes to use this new system it is required to make a decision on this option, on the list. Once made this decision must be communicated. The method of communicating the decision for using this list system is on the list provided, in the boxes provided. This is not just a technicality. This is a matter of law. The issuing state, if it wishes to use the list system, must make the choice and tick any relevant box.
(iv) The Annex clearly, expressly, requires that an applicable offence be ticked.
(v) The initial words of s.38(1)(b) simply require that the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies. It is a clear requirement and is not in issue.
(vi) The words upon which the learned High Court judge rested his decision follow: “or is an offence that consists of conduct specified in that paragraph.” These are ambiguous, and so should be construed in context and in view of the purpose of the Act of 2003 and the Framework Decision.
(vii) The meaning and effect of that phrase is difficult to decipher in light of the context and purpose of the Act of 2003 or the Framework Decision. The offence must be an offence in the issuing state. This refers back to the fact that the “offences” on the list are somewhat vague descriptions and may refer to differently named offences, or to a situation where there may in fact not be such a specific offence in the executing state, for example racketeering, racism. The list is in terms of a political decision rather than in precise legal terms. Also, in the vagueness of its terms it enables an issuing state to identify its offence. There is no conduct specified in Article 2.2 which could be said to determine whether an offence stated in a warrant is an offence listed in that Article. That is something which only the issuing state can do, by reference to its own national law. That is why, as I have pointed out, the Act of 2003 and the Framework Decision require that the European arrest warrant should follow the form contained in the Annex to the Decision. Article 8 requires the issuing state to classify the offence, in particular for the purpose of Article 2. If an issuing state does not classify the offence, it is not open to a court in the executing state to determine, for the purposes of a European arrest warrant, whether an offence in the warrant is an offence to which Article 2.2 applies, unless the executing state states that this is so by ticking the relevant box.
(viii) I am satisfied that the learned High Court judge erred in determining that there was a third option, and consequently an order may not be made directing the surrender of the appellant on this European arrest warrant.
(ix) Once again this case illustrates the difficulty in construing the Act of 2003. As Fennelly J. stated in Dundon v. Governor of Cloverhill Prison [2006] 2 IR 518, at 545:-
” It has to be acknowledged, at once, that the legislation presents unusual problems of interpretation. The European arrest warrant is itself a novel instrument. It was adopted in the wake of the devastatingly tragic events of the 11th September, 2001. The drafting is extraordinarily loose and vague, particularly in the manner in which offences are defined.”
25. Conclusion
In conclusion, and to recapitulate, at issue in this case is whether there are two options for identifying offences for which a person may be surrendered under s.16 of the European Arrest Warrant Act, 2003, on a European arrest warrant, i.e. on the basis that it is a corresponding offence, or by ticking a box in the relevant portion of the European arrest warrant. Or, whether there is a third option under which a court of a requested state, i.e. the executing state, may look at the facts, find that it is not a corresponding offence, but find that the offence is an offence of the issuing state even though it has not been identified on the list by the issuing state by a tick or otherwise, but conclude that there is such an offence in the issuing state and that it comes within the list system.
The Framework Decision and the Act of 2003 have introduced a novel system. First, the concept of double criminality, a corresponding offence, may be applied. This is the basis upon which extradition has proceeded for many years and is not a new concept. However, secondly, the concept of a list of offences, where double criminality need not be found, is an entirely new system, agreed by the Member States in Article 2.2 of the Framework Decision and transposed into our law by the Act of 2003. If the offence is identified by the issuing state then the matter comes within this new legal scheme. However, if the offence is not identified on the list by the issuing state, the role of the requested state, as submitted in this case on behalf of the State, would be an extraordinary step. It would require an Irish Court to look behind the issuing authority, and its decision, and decide whether the act described is an offence under the law of the issuing state, and whether it comes within the list of offences in Article 2.2. For the reasons given I am satisfied that the Act of 2003 does not create this third option.
Section 38(1)(b) of the Act of 2003 is the implementation of Article 2.2 of the Framework Decision. If this option is applied by an issuing state then one or more of the offences require to be ticked or marked on the European arrest warrant.
Section 38(1)(b) of the Act of 2003 states the law on corresponding offences. Correspondence is addressed in Article 2.4 of the Framework Decision. Paragraph (e) II of the arrest warrant relates to offences not covered by Article 2.2 and was completed on the warrant in issue in this case. This enables a decision on whether or not there is a corresponding offence.
As the High Court held, and which I would affirm, there is no corresponding offence in this jurisdiction. It is clear that there is no corresponding offence and so the appellant could not be extradited for the offence on that basis. Nor could he be extradited on the basis of the list system, as no tick or mark was made by the issuing state in paragraph (e) I in the list of offences. There is no third option by which an Irish court could go behind the warrant, consider the facts, and determine that under the law of the issuing state the offence is an offence in the issuing state and that it is one listed in paragraph (e) I, when an issuing state has not made such a decision or ticked a relevant box.
For the reasons given I would allow the appeal. I am satisfied that an order may not be made directing the surrender of the appellant on this European arrest warrant.
MJELR v Olsson
[2011] IESC 1
Judgment delivered by O’Donnell J. on the 13th day of January, 2011
The appellant is a citizen of Sweden. His arrest was sought by that country pursuant to a European Arrest Warrant (“EAW”) issued on the 19th December, 2006 for the purposes of prosecution in respect of four offences of robbery and arson alleged to have occurred on the 20th and 21st of October, 2005. The warrant was endorsed for execution on the 19th December, 2006 and executed on the 5th July, 2007. The appellant raised a number of challenges to the warrant and also issued separate plenary proceedings seeking declarations that the provisions of legal assistance under the Attorney General’s Scheme (“the Scheme”) were in breach of Council Framework Decision 2002/584/J.H.A. of 13 June, 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. L 190/1 18.7.2002 (“the Framework Decision”), the European Convention on Human Rights and/or the Irish Constitution. All issues were heard together by the High Court in the European arrest warrant “EAW” proceedings. In MJELR v. Ollson [2008] IEHC 37, (Unreported, High Court, Peart J., 20th February, 2008) the High Court rejected the appellant’s contentions , and directed that he be surrendered to Sweden in accordance with the provisions of the European Arrest Warrant Act 2003 (“the Act of 2003” or “the Act”), as amended. Against that judgment and order the appellant has now appealed to this Court.
On the hearing of the appeal the appellant sought leave to introduce further evidence being:
(1) a report of the United Nations High Commissioner on Human Rights dated the 16th July, 2008;
(2) a translation of a Swedish newspaper said to have been published “in November/December 2008” purporting to contain comments by a Swedish prosecutor on the substance of the case, and the EAW proceedings; and
(3) correspondence between the appellant’s Irish solicitors and the gardaí and, more pertinently, correspondence between the solicitors and members of the Swedish police force.
The Court, having heard submissions, refused to admit the United Nations report and the translation of the newspaper, considering that they did not amount to evidence which could have a material bearing on the outcome of the appeal. While considering that there was an issue as to the admissibility of the correspondence, the Court nevertheless permitted the material to be opened de bene esse. The appeal then proceeded on its merits.
Although the proceedings, including the plenary proceedings and the interlocutory proceedings in the High Court, had together generated voluminous documentation raising a significant range of issues, the appellant through his counsel, Mr. Derek Kenneally S.C., acknowledged that in essence the appeal could be reduced to two issues: first, the question of the legal assistance available to the appellant; and second, whether the Court should refuse to surrender the appellant on the grounds that it was alleged that a decision had not been made to charge him with, and try him for, the offence as stated in the warrant (Under the EAW procedure surrender of a requested person may be sought for the purposes of either conducting a criminal prosecution or the execution of a custodial sentence or detention order). This narrowing of the potential issues in the case was welcome, but it should also be said, was both realistic and proper.
Legal Aid
On a first and indeed subsequent reading of the papers in this matter, it might have appeared that the substantial part of the appellant’s case was the contention that the legal fees available under the Scheme were so inadequate and so different from what could be obtained on taxation of costs, that the Scheme amounted to a failure to secure to the requested person the legal assistance to which it was asserted he was entitled. However, Mr. Kenneally S.C. disavowed any intention to advance such a case, or to make any argument which was in any way dependent on the level of remuneration available under the Scheme. Again, it should be said that this approach was both proper and prudent: any claim dependent on an assertion that another level of fees might have been attainable by taxation of costs would have been almost certainly doomed to failure and in any event, would also have had the appearance of an uncomfortable element of special pleading. Indeed, and in fairness to the lawyers appearing on behalf of the appellant, it should be said that they had expressly refused to seek certification under the Scheme, considering that it would be somehow inappropriate to criticise the adequacy of the Scheme, while at the same time seeking to benefit from it. Accordingly the point argued in this appeal is limited to the contention that the provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is requested pursuant to a European arrest warrant.
The appellant’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended. The proper approach to the interpretation of these provisions was clearly set out in the judgment of the Supreme Court delivered by Murray C.J. in Minister for Justice Equality and Law Reform v. Altaravicius [2006] 3 IR 148, at p. 155:-
“Although the framework decision cannot, in terms of community law, have direct effect (Article 34.2(b) of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a significant number of its provisions, such effect and made it directly applicable within the State. This is achieved, inter alia, by s.10 of the Act of 2003 which provides that where a European arrest warrant has been duly issued in respect of a person “that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state”. The Act of 2003 does not confine itself to including the framework decision in a schedule for reference purposes. There are other provisions of the Act of 2003 which require the Courts to interpret and apply the framework decision directly but it is sufficient for present purposes to note that s.10 means that in deciding on an application for surrender pursuant to the terms of the Act of 2003 the court must apply both the provisions of the Act and the framework decision. …”
Article 11.2 of the Framework Decision provides that a requested person has a “right to be assisted by a legal counsel … in accordance with the national law of the executing Member State”.
The Framework Decision therefore imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise. It merely provides for a right of representation; and then only in accordance with the national law of the executing member state. That right, and more, has unequivocally been vindicated in the present case. The appellant argues, however, that the Act of 2003 imposes a more extensive obligation. The appellant points to s.13(4) of the Act of 2003 which provides inter alia:-
“A person arrested under a European arrest warrant shall, upon his or her arrest, be informed of his or her right to –
…
(b) obtain, or be provided with, professional legal advice and representation, and
(c) where appropriate, obtain, or be provided with, the services of an interpreter.”
In essence, therefore, the appellant contends that s.13(4) recognises a right to be provided with professional legal advice and representation.
Section 13(4) is limited in its own terms. Insomuch as the subsection imposes any obligation, it is as to the provision of information on arrest. The information required to be provided assumes the existence of a right to be provided with a lawyer and, if appropriate, an interpreter. No other provision of the Act however confers, or even refers to, a right to be provided with either a lawyer or an interpreter, and as was made clear in Minister for Justice, Equality and Law Reform v. Altravicius, the Framework Decision cannot be the source of any such right. There was, therefore, much debate in the parties’ written submissions as to the source of any such right, and whether it was statutory or constitutional in origin or derived in some way from the European Convention on Human Rights. It is, however, not necessary to resolve that matter for the purposes of this appeal. The respondent on this appeal did not seek to argue that the reference in s.13(4) was an error, and/or that there was no right to be provided with legal assistance. In those circumstances, this appeal has proceeded upon the same assumption as that made by s.13(4), namely, that there is a right to have legal assistance provided in appropriate cases. That being so, the precise derivation of any such right is not relevant to the resolution of the issue in this case: the only question is whether what was unambiguously made available and offered to the appellant (that is legal assistance under the Scheme) was the provision of legal assistance as of right, there being no suggestion that s.13(4) was not otherwise complied with, in that the appellant was, it appears, informed of the ability to obtain legal assistance under the Scheme.
The appellant’s point in this respect is narrow, but not necessarily any less effective for that. The Scheme is derived from the assurances given to the Supreme Court in open court, on behalf of the Attorney General, in the case of in Application of Woods [1970] I.R. 154. Since that time the Scheme has always operated by the making of a recommendation by the court which the Attorney General almost always follows, although he or she is not obliged to do so. The appellant relies in this regard on the most recent iteration of the Scheme dated the 1st of May, 2000. Clause 8 of that document provides:-
“The Scheme is an administrative, non-statutory arrangement whereby payments are made out of the Vote of the Office of the Chief State Solicitor in respect of certain legal costs in the types of litigation referred to in paragraph 1 of the Scheme in which, for the most part, the State is a party (although the State need not be a party to proceedings which are eligible for the Attorney General’s Scheme). The Attorney General is not bound by the recommendation of the Court.”
The appellant contends quite simply that the Scheme here provides that the Attorney General retains a discretion and that therefore, the Scheme cannot amount to the provision of legal aid as a right: instead it is provided ex gratia and as a matter of benevolence. Put less dramatically, it is suggested that the appellant cannot enforce by action any claim to legal aid under the Scheme, and accordingly it cannot be said to be provided as of right.
It must be apparent that there are a number of significant difficulties with this argument. First, it is an assertion of theoretical form over actual substance. In this case the appellant was repeatedly invited to apply for the Scheme and assured that it would be made available to him. Second, the appellant has at all stages of his involvement with the Irish courts system been represented by experienced and able lawyers. The rules of conduct of the legal profession in Ireland, and indeed the law of tort, do not distinguish between the standards required of lawyers paid on a commercial basis, under a legal aid scheme, on a “no foal no fee” basis, or where they are providing services pro bono. The source of payment is not relevant to the nature of the representation afforded to the individual. The fact is that the appellant here received exactly the substance of what the assumed right requires: legal representation encompassing in this case, representation by senior counsel, junior counsel and a solicitor ; and if necessary, it would be paid for by the State. At the hearing therefore, there was some debate as to whether in such circumstances the appellant had locus standi to raise any challenge to the Scheme. If the issue was compliance with the Framework Decision, then I would think the appellant does lack locus standi and indeed merit, since he had manifestly obtained representation in accordance with national law. Insomuch however as he contends that he has not received such representation as of right, he does have locus standi to make that challenge. Even then, it is difficult to see how the appellant, or anyone else in this position, is in any way affected as a matter of reality by the outcome of this case. Indeed even in the hypothetical case where the court refused to make a recommendation at the close of a case, or the Attorney General subsequently refused to follow the recommendation (and because of the stance taken by the appellant’s lawyers that point could never arise in this case in fact), the requested person would still have received representation. The parties with a grievance in any such situation would be the legal representatives and not the client. The issue for the appellant is almost an academic one ; and I would have had no hesitation in holding that the Court would be entitled to refuse to grant any declaratory relief in the plenary proceedings in the exercise of its discretion on the grounds that the declaration, if granted, would be of no substantial benefit to the appellant.
Insomuch as the appellant advanced this point in answer to the EAW proceedings, however, then it might be said that the rules relating to declaratory relief did not apply, and that he was entitled to argue that there was non-compliance with the Act, since compliance with the Act (and the Framework Decision) is a precondition to return pursuant to section 10. But this argument faces two further difficulties. First, there has been full compliance with the Act. As already observed, section 13(4) only requires the provision of information in relation to the requested person’s entitlement to have legal assistance provided for him, and this was done. Second, there is a subtle but significant shift in the manner in which the appellant makes his case. Section 13(4) does not refer to the provision of legal aid “as of right”: rather it provides for information being provided to a requested person as to his right to have legal representation and if necessary have it provided for him. It can be said that there is virtually no right which is unqualified: the Act of 2003 does not require that there be an unqualified right to legal aid ; and all that is required is that the requested person be informed of the nature and extent of the right accorded to him. To take one example, it is now accepted that the criminal legal aid scheme itself is not the mere provision of a statutory entitlement but the provision of a constitutional right. In Carmody v Minister for Justice Equality and Law Reform [2009] IESC 71 (Unreported, Supreme Court, 23rd October, 2009) Murray C.J. observed, at p. 19:- “One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely vindicating that right.” But that scheme is subject to criteria; most notably in relation to the means of the appellant, and the gravity of the offence with which the person is charged. It could not be suggested, however, that the fact that legal aid is subject to such delimitations means that, where it is actually provided it is not provided as of right . Nor, can it be said that if informed of the limitation on the scheme, a person has not been informed of his or her right to be provided with legal representation, even if such person does not come within the provisions of that scheme. Again taking the example of the Criminal Legal Aid Scheme; the right to be represented, and if unable to pay for representation to have such representation provided, is really an aspect of the right to a trial in due course of law guaranteed by Article 38.1, and the administration of justice required under Article 34.1. A trial on a serious charge without such legal assistance would fall short of those constitutional standards. See State (Healy) v Donoghue [1976] IR 325. The Constitution focuses on the fairness of the trial, not on the precise manner in which any representation is made available. At the same time there are aspects of the Attorney General’s Scheme, which can be said to be rights in the sense of a claim which is legally enforceable. Thus I take it that an applicant has an entitlement to apply for the benefit of the Scheme, and has a further entitlement to have such application considered by the Court and the Attorney General. The practical effect of s. 13(4) in this case is that once the applicant was informed of the circumstances in which he was entitled to benefit from the Attorney General’s Scheme and the limitations on that Scheme, then I consider that he had been informed of his right to have legal assistance provided for him . There was compliance with the section . However, it is not necessary to resolve that issue definitively, because the matter is in my view, put beyond doubt by the evidence and submissions made in this case.
In these proceedings an affidavit was sworn by Mr. Jevon Alcock, a solicitor in the Chief State Solicitor’s Office instructed in this case on behalf of the Attorney General. At paragraph 10 of that affidavit he states:-
I say and believe and I am so informed that while the Attorney General’s Scheme is described as an ex gratia scheme and reference is made to a residual discretion, in all European Arrest Warrant cases, which are a special case by reason of the Act of 2003, that discretion is exercised in only one way. The person who is the subject of the European Arrest Warrant and who obtains the benefit of a court recommendation for payment pursuant to the Attorney General’s Scheme is consequently not dependent upon the goodwill or cooperation of the Attorney General for the payment of fees as suggested ….” [Emphasis added]
It is noteworthy that this statement was repeated both in the written and oral submissions made to this Court. It was not challenged.
In my view, this sworn statement, together with the assurances repeated to this Court, when taken with the provisions of the Scheme itself, amply satisfy any requirement implicit in section 13(4). Since in EAW cases, there is no residual discretion on the part of the Attorney General, the provision of legal services in such cases cannot properly be described as merely a matter of benevolence or discretion. On the contrary, where such services are provided pursuant to the Scheme as so expressed, then such services are in my view properly described as being provided as of right. Accordingly, I would reject this aspect of the appeal.
The second point raised by the appellant is also of general importance. The evidence in this case makes it clear that the appellant will not be prosecuted with the offences set out in the European arrest warrant until the Swedish prosecutors have interviewed him. Furthermore, it is common case that the result of that interview may be that the appellant will not be prosecuted at all. In such circumstances the appellant contends that he should not be surrendered pursuant to the warrant relying in this regard on the provisions of s.21(A) of the Act, as amended. That section provides:-
“21(A) – (1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, 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 for, that offence in the issuing state.
(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.”
There has been an exchange of evidence in relation to this matter. Mr. Hans Ostberg, a Swedish lawyer instructed on behalf of the appellant, has sworn an affidavit. There he states that he has contacted the prosecutor, Anne-Christine Maderud. At paragraphs 6 and 7 of his affidavit he states as follows:-
“6 Arising from that communication I have ascertained that the status of the applicant in Sweden is häktad i sin frånvara which means that the District Court of Gavle has decided the [appellant] is on probable cause suspected of committing serious crimes and the court has decided that the [appellant] should be taken into custody.
7 From the inquiries that I have made I am satisfied and I believe that the [appellant] is not being sought in the Kingdom of Sweden for the purpose of standing trial. I say that the required decision in that regard has not been made and that the surrender of the [appellant] is sought only for the purposes of continuing criminal investigation and not for the purpose of the [appellant] being charged with or standing trial in respect of any offence but more particularly the offences specified in the EAW.”
It is no criticism of the drafting or swearing of this affidavit to observe that the critical conclusion that the appellant is not being sought “for the purpose of … being charged with” is a conclusion in relation to concepts which are contained in s.21A, and therefore matters of Irish law. Furthermore, this aspect of the affidavit seems to consider the processes of investigation and prosecution as mutually exclusive .
Ms. Maderud has sworn a replying affidavit. Paragraphs 5 and 6 are of particular importance:-
“5 The next step in the procedure requires the presence of the accused. Under Swedish law the investigation process may be formally concluded when the accused is present. The accused must be presented with the information obtained in the investigation and given the opportunity to reply to same. However no formal charges can be laid until the conclusion of the investigation as the prosecutor is legally incapable of arriving at a final decision to prosecute until they meet the accused and hear his objections and perhaps obtain additional evidence. This is an essential part of the process and is designed to protect an accused person’s rights. While there is an intention to prosecute on the basis of the available evidence the requested person has at all material times been abroad and has not been available to be interviewed and the procedure cannot be finalised in his absence. The [appellant’s] surrender is therefore sought for the purposes of conducting a criminal prosecution in respect of the above serious offences, although by Swedish law any final decision to prosecute can only be taken if the above procedure is followed and the [appellant’s] right protected. I understand that the system which operates in Sweden is analogous to that which operates in many other countries, for example, Finland, Denmark, Germany, the Netherlands, Spain, Estonia and Austria. Furthermore, Swedish law does not permit trial in absentia.
6 …I am at a loss to understand how the [appellant] could reasonably be of the belief that he is not wanted for the purpose of a criminal prosecution. ….Under Swedish law and pursuant to the Framework [Decision] of the 13th June 2002, the Kingdom of Sweden only issues European Arrest Warrants for the purposes of either conducting a criminal prosecution or executing a custodial sentence or detention order. This European Arrest Warrant is issued for the former purpose.”
The appellant also relies on the correspondence between members of the Swedish police force and the appellant’s Irish solicitor, already referred to at the outset of this judgment. As already discussed, there must be considerable doubt as to the admissibility in these proceedings of such statements. In truth, the frank correspondence between the Swedish police and the appellant’s Irish lawyers only illustrates an aspect of this case that is central to the appeal, namely that the Act, and the procedure under it, necessarily relates to a sometimes difficult intersection between different legal systems and cultures. The issue is ultimately however a matter of Irish law, in the light of a situation where the basic facts (as opposed to legal conclusions to be drawn from them) are not in controversy between the parties.
The issue here, however, is not merely one of the evidence before the Court. As is apparent, s.21A(2) contains a presumption that a decision has been made to charge the person and try him or her for the offence. Furthermore, the opening lines of the EAW itself, request that the person mentioned below “be arrested and surrendered for the purposes of conducting a criminal prosecution …” That statement, and the further statements made in Ms. Maderud’s affidavit in relation to the practice of the Kingdom of Sweden, must also be read in the light of recital 10 of the Framework Decision which describes “[t]he mechanism of the European arrest warrant [as being] based on a high level of confidence between Member States”. It is clear, therefore, that cogent evidence is required to raise a genuine issue as to the purpose for which a warrant has been issued and surrender sought. This was emphasised in the judgment of Murray C.J. in Minister for Justice v. McArdle [2005] 4 IR 260, 268:-
“The European Arrest Warrant Act 2003 gives effect in this jurisdiction to the European Council Framework Decision of the 13th June, 2002, on the European arrest warrant and the surrender procedures between member states. The recitals to that decision make reference to the implementation of “the principle of mutual recognition of criminal proceedings” and in particular recital number 6 which states “the European arrest warrant provided for in this Framework Decision if the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council refer to as the ‘cornerstone’ of judicial cooperation”. Accordingly, it seems to me that where a judicial authority of a Member State issues a European Arrest Warrant and that is accompanied by a certificate referred to in s.11(3) of the Act of 2003, both of which state and certify respectively, that the surrender of the person named in the warrant is sought for the purpose of prosecution and trial, that must be acknowledged as at least prima facie evidence of the purpose for which the request is made. It would, in my view, normally require cogent evidence to the contrary to raise a genuine issue as to the purpose for which the warrant in question has been issued and the surrender sought.”
The Chief Justice also observed, at pp. 266 to267:-
“The surrender of a person for purpose of prosecution and trying him or her on a criminal offence means that the decision taken by the relevant authority to prosecute and try that person is not contingent on the outcome of further factual investigation. That requirement does not of course preclude the pursuit of any continuing or parallel investigation into the circumstance of the offence. It means that the decision to prosecute is not dependent on such further investigation producing sufficient evidence to justify putting a person on trial.”
In approaching the question of the interpretation of the Act, it is necessary to keep both the nature of the Act and its origins in view. One thing which can be said with assurance is that the Act does not intend that words such as “charge” and “prosecution” should only be understood as meaning a charge or prosecution as in the Irish criminal justice system. The Act establishes a procedure for the reciprocal execution of warrants with legal systems, almost all of which differ in some ways ,even at times significantly, from that of this jurisdiction. If the Act intended that only warrants emanating from a criminal justice procedure which was identical to that of Ireland would be executed here, then the Act would manifestly fail to achieve its object, and indeed that of the Framework Decision. A similar point was made in a slightly different context by Lord Steyn in the United Kingdom House of Lords case of Re Ismail [1999] 1 AC 320 at pp. 326 to 327:-
“Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition [of the word “accused]… It is, however, possible to state in outline the approach to be adopted. The starting point is that “accused” in s.1 of the Act of 1989 is not a term of art. It is a question of fact in each case that the person passes the threshold test of being an “accused” person. Next there is the reality that one is concerned with the contextual meaning of “accused” and statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg v. Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of “accused” in an extradition treaty: Reg v Government of Switzerland [1999] AC 54, 62G. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of the information or the preferring of an indictment …
It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an “accused” person. All one can say with confidence is that a purposive interpretation of “accused” ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an “accused” person is satisfied.”
The origins of the Act of 2003 are also important. The Act is the mechanism by which this State performs its obligation to ensure that the objectives of the Framework Decision, are achieved. As was pointed out by Fennelly J. in Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518 at 544:-
“[t]he Act of 2003 as a whole … should be interpreted “as far as possible in the light of the wording of the Framework Decision in order to attain the result which it pursues”.”
Taking this approach to the interpretation of s.21(A), the relevant provision of the Framework Decision is that contained in the opening words of article 1(1). This provides that a European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender to another member state of:-
“The… requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” [Emphasis added]
It is also noteworthy that s.10 of the European Arrest Warrant Act 2003 (as substituted by s.71 of the Criminal Justice (Terrorist Offences) Act 2005 (“the Act of 2005”) and as amended by s. 6 of the Criminal Justice (Miscellaneous Provisions) Act 2009), provides that where a judicial authority in an issuing state issues a European Arrest Warrant in respect of a person “against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates … that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state”. (Emphasis added)
Thus, the concept of the “decision” in s.21A should be understood in the light of the “intention” referred to in s.10 of the Act and the “purpose” referred to in article 1 of the Framework Decision.
When s.21A speaks of “a decision” it does not describe such decision as final or irrevocable, nor can it be so interpreted in the light of the Framework Decision. The fact that a further decision might be made eventually not to proceed, would not therefore mean that the statute had not been complied with, once the relevant intention to do so existed at the time the warrant was issued. The Act does not require any particular formality as to the decision; in fact, s.21 focuses on ( and requires proof of ) the absence of one. The issuing state does not have to demonstrate a decision. A court is only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that person. This would be so where there is no intention to try the requested person on the charges at the time the warrant is issued. In such circumstances, the warrant could not be for the purposes of conducting a criminal prosecution.
The requirement of the relevant decision, intention or purpose can best be understood by identifying what is intended to be insufficient for the issuance and execution of a European arrest warrant. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s.10 of the Act of 2003) Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of section 21A. As the Chief Justice pointed out in Minister for Justice v. McArdle, that result is not altered by the fact that there may be a continuing investigation, or indeed that such investigation will be assisted by the return of the requested person.
It would be entirely within the Framework Decision and the Act if, after further investigation, the prosecution authorities decided not to prosecute because, for example, they had become convinced of the requested person’s innocence. There would still have been an “intention” to prosecute, and a decision to do so at the time the warrant was issued and executed. Accordingly the warrant would have been issued for the purposes of conducting a criminal prosecution. What is impermissible is that a decision to prosecute should be dependent on such further investigation producing sufficient evidence to put a person on trial. In such a situation there is in truth no present “decision” to prosecute, and no present “intention” to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. In such a case any warrant could not be said to be for the purposes of conducting a criminal prosecution: instead it could only properly be described as a warrant for the purposes of conducting a criminal investigation. In such circumstances, a court would be satisfied under s.21A that no decision had been made to charge or try the requested person.
It is noteworthy, that on the evidence in this case, the position in relation to the appellant is not by any means unusual in the Swedish system, and indeed represents the norm in a number of European countries. It would be a surprising result if either the Framework Decision or the Act of 2003 were to be interpreted so as to prevent the execution of the European arrest warrant in respect of such countries and where (as here) the requesting authority had in the terms of the warrant, and in sworn evidence in the case, stated that the warrant was issued for the purposes of conducting a criminal prosecution. The High Court was entirely correct to conclude that there was here a clear, intention to bring proceedings within the meaning of s10, and that the warrant could be said to be for the purposes of conducting a criminal prosecution within the meaning of the Framework Decision and that the only thing which stood in the way of commencement of such prosecution was the requirement of presence of the accused and the interview where he could respond to the investigation. In short the intention of the Swedish prosecution authority to bring the appellant before the Swedish Court for the purpose of being charged is but a step in the prosecution process. For the reasons set out above the High Court was correct to conclude that the respondent was not being sought only to be questioned as part of the investigation and that there was a decision to charge the appellant within the meaning of the Act. Certainly even without the presumption contained in s.21A(2), the section requires clear proof. Once a Court finds the European arrest warrant to be in order (and therefore on its face a request made for the purpose of prosecution or trial), then before a Court can refuse to surrender a person requested under such a warrant, it must be satisfied by cogent evidence to the contrary that a decision has not been made to charge the particular person with, and try him or her for, the offence. This has not been established. I would dismiss the appeal.
Minister for Justice, Equality and Law Reform v Olsson
[2011] IESC 1
Judgment delivered by O’Donnell J. on the 13th day of January, 2011
The appellant is a citizen of Sweden. His arrest was sought by that country pursuant to a European Arrest Warrant (“EAW”) issued on the 19th December, 2006 for the purposes of prosecution in respect of four offences of robbery and arson alleged to have occurred on the 20th and 21st of October, 2005. The warrant was endorsed for execution on the 19th December, 2006 and executed on the 5th July, 2007. The appellant raised a number of challenges to the warrant and also issued separate plenary proceedings seeking declarations that the provisions of legal assistance under the Attorney General’s Scheme (“the Scheme”) were in breach of Council Framework Decision 2002/584/J.H.A. of 13 June, 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. L 190/1 18.7.2002 (“the Framework Decision”), the European Convention on Human Rights and/or the Irish Constitution. All issues were heard together by the High Court in the European arrest warrant “EAW” proceedings. In MJELR v. Ollson [2008] IEHC 37, (Unreported, High Court, Peart J., 20th February, 2008) the High Court rejected the appellant’s contentions , and directed that he be surrendered to Sweden in accordance with the provisions of the European Arrest Warrant Act 2003 (“the Act of 2003” or “the Act”), as amended. Against that judgment and order the appellant has now appealed to this Court.
On the hearing of the appeal the appellant sought leave to introduce further evidence being:
(1) a report of the United Nations High Commissioner on Human Rights dated the 16th July, 2008;
(2) a translation of a Swedish newspaper said to have been published “in November/December 2008” purporting to contain comments by a Swedish prosecutor on the substance of the case, and the EAW proceedings; and
(3) correspondence between the appellant’s Irish solicitors and the gardaí and, more pertinently, correspondence between the solicitors and members of the Swedish police force.
The Court, having heard submissions, refused to admit the United Nations report and the translation of the newspaper, considering that they did not amount to evidence which could have a material bearing on the outcome of the appeal. While considering that there was an issue as to the admissibility of the correspondence, the Court nevertheless permitted the material to be opened de bene esse. The appeal then proceeded on its merits.
Although the proceedings, including the plenary proceedings and the interlocutory proceedings in the High Court, had together generated voluminous documentation raising a significant range of issues, the appellant through his counsel, Mr. Derek Kenneally S.C., acknowledged that in essence the appeal could be reduced to two issues: first, the question of the legal assistance available to the appellant; and second, whether the Court should refuse to surrender the appellant on the grounds that it was alleged that a decision had not been made to charge him with, and try him for, the offence as stated in the warrant (Under the EAW procedure surrender of a requested person may be sought for the purposes of either conducting a criminal prosecution or the execution of a custodial sentence or detention order). This narrowing of the potential issues in the case was welcome, but it should also be said, was both realistic and proper.
Legal Aid
On a first and indeed subsequent reading of the papers in this matter, it might have appeared that the substantial part of the appellant’s case was the contention that the legal fees available under the Scheme were so inadequate and so different from what could be obtained on taxation of costs, that the Scheme amounted to a failure to secure to the requested person the legal assistance to which it was asserted he was entitled. However, Mr. Kenneally S.C. disavowed any intention to advance such a case, or to make any argument which was in any way dependent on the level of remuneration available under the Scheme. Again, it should be said that this approach was both proper and prudent: any claim dependent on an assertion that another level of fees might have been attainable by taxation of costs would have been almost certainly doomed to failure and in any event, would also have had the appearance of an uncomfortable element of special pleading. Indeed, and in fairness to the lawyers appearing on behalf of the appellant, it should be said that they had expressly refused to seek certification under the Scheme, considering that it would be somehow inappropriate to criticise the adequacy of the Scheme, while at the same time seeking to benefit from it. Accordingly the point argued in this appeal is limited to the contention that the provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is requested pursuant to a European arrest warrant.
The appellant’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended. The proper approach to the interpretation of these provisions was clearly set out in the judgment of the Supreme Court delivered by Murray C.J. in Minister for Justice Equality and Law Reform v. Altaravicius [2006] 3 IR 148, at p. 155:-
“Although the framework decision cannot, in terms of community law, have direct effect (Article 34.2(b) of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a significant number of its provisions, such effect and made it directly applicable within the State. This is achieved, inter alia, by s.10 of the Act of 2003 which provides that where a European arrest warrant has been duly issued in respect of a person “that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state”. The Act of 2003 does not confine itself to including the framework decision in a schedule for reference purposes. There are other provisions of the Act of 2003 which require the Courts to interpret and apply the framework decision directly but it is sufficient for present purposes to note that s.10 means that in deciding on an application for surrender pursuant to the terms of the Act of 2003 the court must apply both the provisions of the Act and the framework decision. …”
Article 11.2 of the Framework Decision provides that a requested person has a “right to be assisted by a legal counsel … in accordance with the national law of the executing Member State”.
The Framework Decision therefore imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise. It merely provides for a right of representation; and then only in accordance with the national law of the executing member state. That right, and more, has unequivocally been vindicated in the present case. The appellant argues, however, that the Act of 2003 imposes a more extensive obligation. The appellant points to s.13(4) of the Act of 2003 which provides inter alia:-
“A person arrested under a European arrest warrant shall, upon his or her arrest, be informed of his or her right to –
…
(b) obtain, or be provided with, professional legal advice and representation, and
(c) where appropriate, obtain, or be provided with, the services of an interpreter.”
In essence, therefore, the appellant contends that s.13(4) recognises a right to be provided with professional legal advice and representation.
Section 13(4) is limited in its own terms. Insomuch as the subsection imposes any obligation, it is as to the provision of information on arrest. The information required to be provided assumes the existence of a right to be provided with a lawyer and, if appropriate, an interpreter. No other provision of the Act however confers, or even refers to, a right to be provided with either a lawyer or an interpreter, and as was made clear in Minister for Justice, Equality and Law Reform v. Altravicius, the Framework Decision cannot be the source of any such right. There was, therefore, much debate in the parties’ written submissions as to the source of any such right, and whether it was statutory or constitutional in origin or derived in some way from the European Convention on Human Rights. It is, however, not necessary to resolve that matter for the purposes of this appeal. The respondent on this appeal did not seek to argue that the reference in s.13(4) was an error, and/or that there was no right to be provided with legal assistance. In those circumstances, this appeal has proceeded upon the same assumption as that made by s.13(4), namely, that there is a right to have legal assistance provided in appropriate cases. That being so, the precise derivation of any such right is not relevant to the resolution of the issue in this case: the only question is whether what was unambiguously made available and offered to the appellant (that is legal assistance under the Scheme) was the provision of legal assistance as of right, there being no suggestion that s.13(4) was not otherwise complied with, in that the appellant was, it appears, informed of the ability to obtain legal assistance under the Scheme.
The appellant’s point in this respect is narrow, but not necessarily any less effective for that. The Scheme is derived from the assurances given to the Supreme Court in open court, on behalf of the Attorney General, in the case of in Application of Woods [1970] I.R. 154. Since that time the Scheme has always operated by the making of a recommendation by the court which the Attorney General almost always follows, although he or she is not obliged to do so. The appellant relies in this regard on the most recent iteration of the Scheme dated the 1st of May, 2000. Clause 8 of that document provides:-
“The Scheme is an administrative, non-statutory arrangement whereby payments are made out of the Vote of the Office of the Chief State Solicitor in respect of certain legal costs in the types of litigation referred to in paragraph 1 of the Scheme in which, for the most part, the State is a party (although the State need not be a party to proceedings which are eligible for the Attorney General’s Scheme). The Attorney General is not bound by the recommendation of the Court.”
The appellant contends quite simply that the Scheme here provides that the Attorney General retains a discretion and that therefore, the Scheme cannot amount to the provision of legal aid as a right: instead it is provided ex gratia and as a matter of benevolence. Put less dramatically, it is suggested that the appellant cannot enforce by action any claim to legal aid under the Scheme, and accordingly it cannot be said to be provided as of right.
It must be apparent that there are a number of significant difficulties with this argument. First, it is an assertion of theoretical form over actual substance. In this case the appellant was repeatedly invited to apply for the Scheme and assured that it would be made available to him. Second, the appellant has at all stages of his involvement with the Irish courts system been represented by experienced and able lawyers. The rules of conduct of the legal profession in Ireland, and indeed the law of tort, do not distinguish between the standards required of lawyers paid on a commercial basis, under a legal aid scheme, on a “no foal no fee” basis, or where they are providing services pro bono. The source of payment is not relevant to the nature of the representation afforded to the individual. The fact is that the appellant here received exactly the substance of what the assumed right requires: legal representation encompassing in this case, representation by senior counsel, junior counsel and a solicitor ; and if necessary, it would be paid for by the State. At the hearing therefore, there was some debate as to whether in such circumstances the appellant had locus standi to raise any challenge to the Scheme. If the issue was compliance with the Framework Decision, then I would think the appellant does lack locus standi and indeed merit, since he had manifestly obtained representation in accordance with national law. Insomuch however as he contends that he has not received such representation as of right, he does have locus standi to make that challenge. Even then, it is difficult to see how the appellant, or anyone else in this position, is in any way affected as a matter of reality by the outcome of this case. Indeed even in the hypothetical case where the court refused to make a recommendation at the close of a case, or the Attorney General subsequently refused to follow the recommendation (and because of the stance taken by the appellant’s lawyers that point could never arise in this case in fact), the requested person would still have received representation. The parties with a grievance in any such situation would be the legal representatives and not the client. The issue for the appellant is almost an academic one ; and I would have had no hesitation in holding that the Court would be entitled to refuse to grant any declaratory relief in the plenary proceedings in the exercise of its discretion on the grounds that the declaration, if granted, would be of no substantial benefit to the appellant.
Insomuch as the appellant advanced this point in answer to the EAW proceedings, however, then it might be said that the rules relating to declaratory relief did not apply, and that he was entitled to argue that there was non-compliance with the Act, since compliance with the Act (and the Framework Decision) is a precondition to return pursuant to section 10. But this argument faces two further difficulties. First, there has been full compliance with the Act. As already observed, section 13(4) only requires the provision of information in relation to the requested person’s entitlement to have legal assistance provided for him, and this was done. Second, there is a subtle but significant shift in the manner in which the appellant makes his case. Section 13(4) does not refer to the provision of legal aid “as of right”: rather it provides for information being provided to a requested person as to his right to have legal representation and if necessary have it provided for him. It can be said that there is virtually no right which is unqualified: the Act of 2003 does not require that there be an unqualified right to legal aid ; and all that is required is that the requested person be informed of the nature and extent of the right accorded to him. To take one example, it is now accepted that the criminal legal aid scheme itself is not the mere provision of a statutory entitlement but the provision of a constitutional right. In Carmody v Minister for Justice Equality and Law Reform [2009] IESC 71 (Unreported, Supreme Court, 23rd October, 2009) Murray C.J. observed, at p. 19:- “One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely vindicating that right.” But that scheme is subject to criteria; most notably in relation to the means of the appellant, and the gravity of the offence with which the person is charged. It could not be suggested, however, that the fact that legal aid is subject to such delimitations means that, where it is actually provided it is not provided as of right . Nor, can it be said that if informed of the limitation on the scheme, a person has not been informed of his or her right to be provided with legal representation, even if such person does not come within the provisions of that scheme. Again taking the example of the Criminal Legal Aid Scheme; the right to be represented, and if unable to pay for representation to have such representation provided, is really an aspect of the right to a trial in due course of law guaranteed by Article 38.1, and the administration of justice required under Article 34.1. A trial on a serious charge without such legal assistance would fall short of those constitutional standards. See State (Healy) v Donoghue [1976] IR 325. The Constitution focuses on the fairness of the trial, not on the precise manner in which any representation is made available. At the same time there are aspects of the Attorney General’s Scheme, which can be said to be rights in the sense of a claim which is legally enforceable. Thus I take it that an applicant has an entitlement to apply for the benefit of the Scheme, and has a further entitlement to have such application considered by the Court and the Attorney General. The practical effect of s. 13(4) in this case is that once the applicant was informed of the circumstances in which he was entitled to benefit from the Attorney General’s Scheme and the limitations on that Scheme, then I consider that he had been informed of his right to have legal assistance provided for him . There was compliance with the section . However, it is not necessary to resolve that issue definitively, because the matter is in my view, put beyond doubt by the evidence and submissions made in this case.
In these proceedings an affidavit was sworn by Mr. Jevon Alcock, a solicitor in the Chief State Solicitor’s Office instructed in this case on behalf of the Attorney General. At paragraph 10 of that affidavit he states:-
I say and believe and I am so informed that while the Attorney General’s Scheme is described as an ex gratia scheme and reference is made to a residual discretion, in all European Arrest Warrant cases, which are a special case by reason of the Act of 2003, that discretion is exercised in only one way. The person who is the subject of the European Arrest Warrant and who obtains the benefit of a court recommendation for payment pursuant to the Attorney General’s Scheme is consequently not dependent upon the goodwill or cooperation of the Attorney General for the payment of fees as suggested ….” [Emphasis added]
It is noteworthy that this statement was repeated both in the written and oral submissions made to this Court. It was not challenged.
In my view, this sworn statement, together with the assurances repeated to this Court, when taken with the provisions of the Scheme itself, amply satisfy any requirement implicit in section 13(4). Since in EAW cases, there is no residual discretion on the part of the Attorney General, the provision of legal services in such cases cannot properly be described as merely a matter of benevolence or discretion. On the contrary, where such services are provided pursuant to the Scheme as so expressed, then such services are in my view properly described as being provided as of right. Accordingly, I would reject this aspect of the appeal.
The second point raised by the appellant is also of general importance. The evidence in this case makes it clear that the appellant will not be prosecuted with the offences set out in the European arrest warrant until the Swedish prosecutors have interviewed him. Furthermore, it is common case that the result of that interview may be that the appellant will not be prosecuted at all. In such circumstances the appellant contends that he should not be surrendered pursuant to the warrant relying in this regard on the provisions of s.21(A) of the Act, as amended. That section provides:-
“21(A) – (1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, 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 for, that offence in the issuing state.
(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.”
There has been an exchange of evidence in relation to this matter. Mr. Hans Ostberg, a Swedish lawyer instructed on behalf of the appellant, has sworn an affidavit. There he states that he has contacted the prosecutor, Anne-Christine Maderud. At paragraphs 6 and 7 of his affidavit he states as follows:-
“6 Arising from that communication I have ascertained that the status of the applicant in Sweden is häktad i sin frånvara which means that the District Court of Gavle has decided the [appellant] is on probable cause suspected of committing serious crimes and the court has decided that the [appellant] should be taken into custody.
7 From the inquiries that I have made I am satisfied and I believe that the [appellant] is not being sought in the Kingdom of Sweden for the purpose of standing trial. I say that the required decision in that regard has not been made and that the surrender of the [appellant] is sought only for the purposes of continuing criminal investigation and not for the purpose of the [appellant] being charged with or standing trial in respect of any offence but more particularly the offences specified in the EAW.”
It is no criticism of the drafting or swearing of this affidavit to observe that the critical conclusion that the appellant is not being sought “for the purpose of … being charged with” is a conclusion in relation to concepts which are contained in s.21A, and therefore matters of Irish law. Furthermore, this aspect of the affidavit seems to consider the processes of investigation and prosecution as mutually exclusive .
Ms. Maderud has sworn a replying affidavit. Paragraphs 5 and 6 are of particular importance:-
“5 The next step in the procedure requires the presence of the accused. Under Swedish law the investigation process may be formally concluded when the accused is present. The accused must be presented with the information obtained in the investigation and given the opportunity to reply to same. However no formal charges can be laid until the conclusion of the investigation as the prosecutor is legally incapable of arriving at a final decision to prosecute until they meet the accused and hear his objections and perhaps obtain additional evidence. This is an essential part of the process and is designed to protect an accused person’s rights. While there is an intention to prosecute on the basis of the available evidence the requested person has at all material times been abroad and has not been available to be interviewed and the procedure cannot be finalised in his absence. The [appellant’s] surrender is therefore sought for the purposes of conducting a criminal prosecution in respect of the above serious offences, although by Swedish law any final decision to prosecute can only be taken if the above procedure is followed and the [appellant’s] right protected. I understand that the system which operates in Sweden is analogous to that which operates in many other countries, for example, Finland, Denmark, Germany, the Netherlands, Spain, Estonia and Austria. Furthermore, Swedish law does not permit trial in absentia.
6 …I am at a loss to understand how the [appellant] could reasonably be of the belief that he is not wanted for the purpose of a criminal prosecution. ….Under Swedish law and pursuant to the Framework [Decision] of the 13th June 2002, the Kingdom of Sweden only issues European Arrest Warrants for the purposes of either conducting a criminal prosecution or executing a custodial sentence or detention order. This European Arrest Warrant is issued for the former purpose.”
The appellant also relies on the correspondence between members of the Swedish police force and the appellant’s Irish solicitor, already referred to at the outset of this judgment. As already discussed, there must be considerable doubt as to the admissibility in these proceedings of such statements. In truth, the frank correspondence between the Swedish police and the appellant’s Irish lawyers only illustrates an aspect of this case that is central to the appeal, namely that the Act, and the procedure under it, necessarily relates to a sometimes difficult intersection between different legal systems and cultures. The issue is ultimately however a matter of Irish law, in the light of a situation where the basic facts (as opposed to legal conclusions to be drawn from them) are not in controversy between the parties.
The issue here, however, is not merely one of the evidence before the Court. As is apparent, s.21A(2) contains a presumption that a decision has been made to charge the person and try him or her for the offence. Furthermore, the opening lines of the EAW itself, request that the person mentioned below “be arrested and surrendered for the purposes of conducting a criminal prosecution …” That statement, and the further statements made in Ms. Maderud’s affidavit in relation to the practice of the Kingdom of Sweden, must also be read in the light of recital 10 of the Framework Decision which describes “[t]he mechanism of the European arrest warrant [as being] based on a high level of confidence between Member States”. It is clear, therefore, that cogent evidence is required to raise a genuine issue as to the purpose for which a warrant has been issued and surrender sought. This was emphasised in the judgment of Murray C.J. in Minister for Justice v. McArdle [2005] 4 IR 260, 268:-
“The European Arrest Warrant Act 2003 gives effect in this jurisdiction to the European Council Framework Decision of the 13th June, 2002, on the European arrest warrant and the surrender procedures between member states. The recitals to that decision make reference to the implementation of “the principle of mutual recognition of criminal proceedings” and in particular recital number 6 which states “the European arrest warrant provided for in this Framework Decision if the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council refer to as the ‘cornerstone’ of judicial cooperation”. Accordingly, it seems to me that where a judicial authority of a Member State issues a European Arrest Warrant and that is accompanied by a certificate referred to in s.11(3) of the Act of 2003, both of which state and certify respectively, that the surrender of the person named in the warrant is sought for the purpose of prosecution and trial, that must be acknowledged as at least prima facie evidence of the purpose for which the request is made. It would, in my view, normally require cogent evidence to the contrary to raise a genuine issue as to the purpose for which the warrant in question has been issued and the surrender sought.”
The Chief Justice also observed, at pp. 266 to267:-
“The surrender of a person for purpose of prosecution and trying him or her on a criminal offence means that the decision taken by the relevant authority to prosecute and try that person is not contingent on the outcome of further factual investigation. That requirement does not of course preclude the pursuit of any continuing or parallel investigation into the circumstance of the offence. It means that the decision to prosecute is not dependent on such further investigation producing sufficient evidence to justify putting a person on trial.”
In approaching the question of the interpretation of the Act, it is necessary to keep both the nature of the Act and its origins in view. One thing which can be said with assurance is that the Act does not intend that words such as “charge” and “prosecution” should only be understood as meaning a charge or prosecution as in the Irish criminal justice system. The Act establishes a procedure for the reciprocal execution of warrants with legal systems, almost all of which differ in some ways ,even at times significantly, from that of this jurisdiction. If the Act intended that only warrants emanating from a criminal justice procedure which was identical to that of Ireland would be executed here, then the Act would manifestly fail to achieve its object, and indeed that of the Framework Decision. A similar point was made in a slightly different context by Lord Steyn in the United Kingdom House of Lords case of Re Ismail [1999] 1 AC 320 at pp. 326 to 327:-
“Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition [of the word “accused]… It is, however, possible to state in outline the approach to be adopted. The starting point is that “accused” in s.1 of the Act of 1989 is not a term of art. It is a question of fact in each case that the person passes the threshold test of being an “accused” person. Next there is the reality that one is concerned with the contextual meaning of “accused” and statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg v. Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of “accused” in an extradition treaty: Reg v Government of Switzerland [1999] AC 54, 62G. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of the information or the preferring of an indictment …
It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an “accused” person. All one can say with confidence is that a purposive interpretation of “accused” ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an “accused” person is satisfied.”
The origins of the Act of 2003 are also important. The Act is the mechanism by which this State performs its obligation to ensure that the objectives of the Framework Decision, are achieved. As was pointed out by Fennelly J. in Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518 at 544:-
“[t]he Act of 2003 as a whole … should be interpreted “as far as possible in the light of the wording of the Framework Decision in order to attain the result which it pursues”.”
Taking this approach to the interpretation of s.21(A), the relevant provision of the Framework Decision is that contained in the opening words of article 1(1). This provides that a European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender to another member state of:-
“The… requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” [Emphasis added]
It is also noteworthy that s.10 of the European Arrest Warrant Act 2003 (as substituted by s.71 of the Criminal Justice (Terrorist Offences) Act 2005 (“the Act of 2005”) and as amended by s. 6 of the Criminal Justice (Miscellaneous Provisions) Act 2009), provides that where a judicial authority in an issuing state issues a European Arrest Warrant in respect of a person “against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates … that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state”. (Emphasis added)
Thus, the concept of the “decision” in s.21A should be understood in the light of the “intention” referred to in s.10 of the Act and the “purpose” referred to in article 1 of the Framework Decision.
When s.21A speaks of “a decision” it does not describe such decision as final or irrevocable, nor can it be so interpreted in the light of the Framework Decision. The fact that a further decision might be made eventually not to proceed, would not therefore mean that the statute had not been complied with, once the relevant intention to do so existed at the time the warrant was issued. The Act does not require any particular formality as to the decision; in fact, s.21 focuses on ( and requires proof of ) the absence of one. The issuing state does not have to demonstrate a decision. A court is only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that person. This would be so where there is no intention to try the requested person on the charges at the time the warrant is issued. In such circumstances, the warrant could not be for the purposes of conducting a criminal prosecution.
The requirement of the relevant decision, intention or purpose can best be understood by identifying what is intended to be insufficient for the issuance and execution of a European arrest warrant. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s.10 of the Act of 2003) Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of section 21A. As the Chief Justice pointed out in Minister for Justice v. McArdle, that result is not altered by the fact that there may be a continuing investigation, or indeed that such investigation will be assisted by the return of the requested person.
It would be entirely within the Framework Decision and the Act if, after further investigation, the prosecution authorities decided not to prosecute because, for example, they had become convinced of the requested person’s innocence. There would still have been an “intention” to prosecute, and a decision to do so at the time the warrant was issued and executed. Accordingly the warrant would have been issued for the purposes of conducting a criminal prosecution. What is impermissible is that a decision to prosecute should be dependent on such further investigation producing sufficient evidence to put a person on trial. In such a situation there is in truth no present “decision” to prosecute, and no present “intention” to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. In such a case any warrant could not be said to be for the purposes of conducting a criminal prosecution: instead it could only properly be described as a warrant for the purposes of conducting a criminal investigation. In such circumstances, a court would be satisfied under s.21A that no decision had been made to charge or try the requested person.
It is noteworthy, that on the evidence in this case, the position in relation to the appellant is not by any means unusual in the Swedish system, and indeed represents the norm in a number of European countries. It would be a surprising result if either the Framework Decision or the Act of 2003 were to be interpreted so as to prevent the execution of the European arrest warrant in respect of such countries and where (as here) the requesting authority had in the terms of the warrant, and in sworn evidence in the case, stated that the warrant was issued for the purposes of conducting a criminal prosecution. The High Court was entirely correct to conclude that there was here a clear, intention to bring proceedings within the meaning of s10, and that the warrant could be said to be for the purposes of conducting a criminal prosecution within the meaning of the Framework Decision and that the only thing which stood in the way of commencement of such prosecution was the requirement of presence of the accused and the interview where he could respond to the investigation. In short the intention of the Swedish prosecution authority to bring the appellant before the Swedish Court for the purpose of being charged is but a step in the prosecution process. For the reasons set out above the High Court was correct to conclude that the respondent was not being sought only to be questioned as part of the investigation and that there was a decision to charge the appellant within the meaning of the Act. Certainly even without the presumption contained in s.21A(2), the section requires clear proof. Once a Court finds the European arrest warrant to be in order (and therefore on its face a request made for the purpose of prosecution or trial), then before a Court can refuse to surrender a person requested under such a warrant, it must be satisfied by cogent evidence to the contrary that a decision has not been made to charge the particular person with, and try him or her for, the offence. This has not been established. I would dismiss the appeal.
Minister for Justice and Equality v O’Connor [2015] IECA 227
JUDGMENT of the Court delivered by the President on 23rd October 2015
Introduction
1. The European arrest warrant is a function of an EU Framework Decision that was intended to streamline extradition among Member States by replacing inter-State requests with enforcement of court orders from one country to another. The scheme is founded on trust in the systems of justice in the participating States. Cumbersome rules of procedure were replaced by a standard unified process that applied across the European Union. Strict time limits were laid down so that the process of transmitting a wanted person from where he was arrested to the requesting State court would operate smoothly and efficiently. Some of the old rules were dispensed with because they were thought to be unnecessary in the new community of trust in common precepts of substantive and procedural justice. The system was implemented in this country by the European Arrest Warrant Act 2003.
2. In the case of Mr. Thomas O’Connor, the reality has not matched the expectation. The warrant was issued on 13th June 2011 and seeks his surrender to serve sentences for tax fraud that were imposed in 2007, and to face the charge of absconding and breaching his bail conditions. The first application failed and this case is concerned with a second warrant.
3. The High Court ordered Mr. O’Connor’s rendition, but gave him leave to appeal and thus the matter comes to this Court. There are, in fact, two proceedings and two appeals, but essentially, the same issue arises in them. One appeal is the extradition request and the other is a separate action by Mr. O’Connor seeking to have the legislation declared invalid having regard to the Constitution.
4. Mr. O’Connor’s resistance to the request for an order that he be surrendered pursuant to the 2003 Act was based on the argument that the Attorney General’s Scheme – now called the Legal Aid (Custody Issues) Scheme – which is available to provide for payment of legal representation in EAW cases, is not compliant with the Framework Decision underpinning the European Arrest Warrant Scheme. As it applied at the relevant time, s. 10 of the European Arrest Warrant Act 2003 provided that the wanted person should, subject to and in accordance with the provisions of the Act and the Framework Decision, be arrested and surrendered to the issuing State. The section was amended to remove the reference to the Framework Decision but as it applied at the time, the section had the reference to the Decision. It is Mr. O’Connor’s contention in this case that the payment scheme provided for legal assistance under the Custody Issues Scheme is in conflict with the Framework Decision because it is provided on an administrative and discretionary basis and not by way of a formal binding and statutory right to free legal assistance provided in accordance with law.
5. The application for the enforcement of the warrant was heard by the High Court together with plenary proceedings by Mr. O’Connor based on the same factual circumstance. He claimed that the absence of a statutory scheme of legal aid, by contrast with provisions for qualified persons in criminal cases and for civil legal aid, constituted a breach of his constitutional rights, specifically, equality before the law under Article 40.1.
6. The High Court rejected Mr. O’Connor’s challenge to the European Arrest Warrant proceedings and dismissed his plenary proceedings. The Court held that it should therefore proceed to make an order for the surrender of Mr. O’Connor. The Court subsequently refused an application for a reference to the Court of Justice of the European Union under Article 267 TFEU because it held that such a procedure was not available when the Court had already made its decision in a case, even if it had not actually delivered its judgment setting out the reasons, which was the situation in this case. The Court did, however, certify a point of law of exceptional public importance which it was desirable in the public interest to be the subject of appeal, applying s. 60(11) of the European Arrest Warrant Act 2003. The certified question was:
Is it correct that Article 11.2 of the Framework Decision (on the European Arrest Warrant) in conjunction with Article 47 of the EU Charter and the general principles of EU law imposes no obligation to provide legal aid, whether as of right or otherwise for indigent respondents in EAW cases who do not have the skill to represent themselves?
7. Mr. O’Connor’s challenge to the adequacy of the Custody Issues scheme arises in the context of what is required by the European Arrest Warrant Act 2003 and Council Framework Decision 2002/584/J.H.A.A. of 13th June 2002 on the European Arrest Warrant and the surrender procedures between Member States: O.J. L.190/1 18.7.2002. The relevant provision is in Article 11 which is as follows:
“1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with national law, inform that person of the European Arrest Warrant and of its contents, and also of the possibility of consenting to surrender to the issue in judicial authority.
2. A requested person who was arrested for the purpose of execution of a European Arrest Warrant should have the right to be assisted by a legal Counsel and by an interpreter in accordance with the national law of the executing Member State.”
8. In his judgment in the High Court, Edwards J. cited the case Minister for Justice, Equality and Law Reform v. Olsson [2011] 1. I.R. 384 in which the Supreme Court analysed the meaning and effect of Article 11.2 of the Framework Decision. The judge considered an argument that the Supreme Court authority was not binding, in that the interpretation of Article 11.2 was not part of the ratio decidendi of the case and was, rather, obiter dictum which was a contention advanced by Counsel for Mr. O’Connor in the High Court and which was repeated in this Court. Edwards J. considered that such debate was arid because even if he was to consider the case not to be binding, the views of O’Donnell J. speaking for the Supreme Court coincided with the analysis of the Article that he himself had made.
9. Mr. Forde S.C. for Mr. O’Connor does not dispute the applicability of the judgment in Olsson to the issue now arising but argues that the reasoning is not binding on this Court because it was obiter and we are free to decide not to follow that precedent. If the decision is a binding precedent, Counsel candidly acknowledges that that is the end of Mr. O’Connor’s appeal in this Court. In that event, he must go elsewhere in search of a ruling that will save him from rendition. Counsel asks this Court to refer the point he raises to the Court of Justice of the European Union under Article 247 TFEU. Failing that, he proposes to ask the Supreme Court to receive the case and either allow the appeal or refer the question to Luxembourg. A party in the final national Court is entitled to have a matter of Union law referred under the Article unless it is acte clair.
10. On one view this Court could confine its consideration of the appeal to the question of the precedential status of the admittedly relevant Supreme Court judgment in Olsson’s case. However, having regard to the submissions filed by both sides that would not be satisfactory. The Court does of course know the arguments because we have the judgment of the High Court in which all the submissions are canvassed.
11. We are therefore concerned first with the issue of compliance with the Framework Decision and, secondly, with Mr. O’Connor’s challenge to the European Arrest Warrant Act, 2003.
Olsson’s Case
12. The headnote in Olsson’s case records the Supreme Court as holding as follows:
“1. That the Framework Decision imposed no obligation on a requesting State to provide legal aid. It merely provided for a right of representation and then only in accordance with the national law of the executing Member State. This right was vindicated in the present case.
2. That s. 13(4) of the Act of 2003 did not require the provision of legal assistance as of right. It required that information be provided to a requested person as to the nature and extent of his right to legal assistance and, if necessary, for such legal assistance to be provided to him. The Act was complied with once the respondent was informed of the circumstances in which he was entitled to benefit from the Attorney General’s Scheme and of the limitations on that Scheme.
3. That there were aspects of the Attorney General’s Scheme which were enforceable, such as the right to make an application for legal assistance and the right to have one’s application considered.
4. That as applications for legal assistance under the Attorney General’s Scheme in European Arrest Warrant cases were only ever decided in the requested person’s favour (under the terms of the Scheme itself and on foot of assurances given to the Court on affidavit), the Attorney General had no residual discretion in such cases and where legal assistance was so provided it was provided as of right.
5. That despite having been represented throughout the proceedings, the respondent still had locus standi to argue that legal assistance had not been provided to him as of right as required by the Act of 2003. Further, as he was not merely seeking declaratory relief but was instead arguing that non-compliance with the Act prevented the Court from surrendering him, it could not be said that a finding in his favour would confer no substantial benefit.
. . .
Obiter dictum: criminal legal aid was not a statutory entitlement but a constitutional right, albeit a right subject to criteria which limited its scope. A trial on a serious charge without such legal assistance would fall short of the constitutional standards guaranteed by Articles 38.1 and 34.1 of the Constitution.”
13. In his judgment for the Supreme Court, O’Donnell J. said that “the point argued in this appeal is limited to the contention that the provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is requested pursuant to a European Arrest Warrant”. He went on to say in the next paragraph that “The respondent’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended”. Interpreting Article 11.2, the judgment proceeds at para. [11]:
“The Framework Decision therefore imposes no obligation on the requested State to provide legal aid, whether as of right, or otherwise. It merely provides for a right of representation, and then only in accordance with the national law of the executing Member State. That right, and more, has unequivocally been vindicated in the present case”.
14. The High Court expressly agreed with the reasoning of O’Donnell J. in the Olsson case, holding that for a person arrested under a European Arrest Warrant, “effective access to justice is in fact afforded by the guarantees provided in s. 13(4) of the Act of 2003, coupled with the possibility, which exists for persons unable to fund legal representation from within their own resources, of seeking a recommendation under the Attorney General’s Scheme/The Legal Aid (Custody Issues) Scheme that such representation should be paid for by the State. The evidence given in this Court by Mr. Gilheaney, which mirrors that given to the Supreme Court by Mr. Jevon Alcock in the Olsson case, was that where a judicial recommendation is granted the Legal Aid Board invariably follows that recommendation. In reality, the discretion, such as it is, is only ever exercised, that is in favour of the applicant under the Scheme . . .”
15. The Court held that there was no requirement for the Scheme to be a statutory scheme or otherwise established in law. It rejected the argument that the phrase “in accordance with national law” had to be given the narrow construction that it must be in legislation. In that connection, the Court rejected the argument that there was analogous authority in England in the case of R. v. Secretary of State, ex p Fire Brigades Union [1995] 2 AC 513. The facts of the case were wholly different and inapplicable to the present controversy.
16. Edwards J. also rejected the other arguments put forward on Mr. O’Connor’s behalf. In particular, he held that the requirement to provide legal aid in certain cases which is contained in Article 47 para. 3 of the Charter of Fundamental Rights, even assuming that it was applicable in the present case, was based on the need to ensure effective access to justice. That did not specify the form in which the legal aid was provided and the essential requirement was for effective access to justice. That was available in the present case under the Custody Interest Scheme. That approach was also the basis for the High Court’s rejection of the argument grounding Mr. O’Connor’s plenary action. Edwards J. went on to hold as follows:
“The Act of 2003 enjoys the presumption of constitutionality, and the respondent/plaintiff bears the burden of rebutting that which is presumed. In this Court’s view, there is simply no evidence before it that the Act of 2003 is constitutionally deficient in any respect, or that it permits of any unconstitutional discrimination; or for that matter that the Act of 2003 fails to respect EU law and in particular the principle of equivalence. Accordingly, the presumption of constitutionality has not been rebutted with respect to the Act of 2003, and the Court has no reason to believe that the Act of 2003 is constitutionally deficient in any respect, or that it breaches the principle of equality before law as guaranteed in Article 40.1 of the Constitution.”
17. Mr. Forde sought to distinguish Olssen from this case, saying that there were three fundamental differences, namely:
a. Olssen was, he said, invited to apply for the scheme and was told that the recommendation would not be opposed and there is an affidavit from a Civil Servant saying that the recommendation will be honoured if made. That is one contrast because it has not happened in the O’Connor case.
b. Mr. Olssen was represented at al stages by solicitor and Counsel.
c. Counsel says that if it was intended to be binding, O’Donnell J. would have conducted a very detailed analysis of the provision by examining the French version of the Framework Decision and the preparatory materials, the ICC statute. In the circumstances, therefore, the Court said that this was moot; it was an academic argument.
18. Mr. Forde suggests that there would be little point in having the right expressed as it is unless it was intended that there would be provision for legal assistance when a requested person could not afford to pay for it himself. He cited the European Convention on Human Rights Article 6(1)(c) in support. It could not have been intended that the requested person would be deprived of legal assistance in a matter of potentially great complexity such as extradition.
19. In his submissions, Mr. Shane Murphy S.C. adopts the analysis of Edwards J., in which he held that the proper interpretation of Article 11.2 was central to the decision in the Olsson case. The High Court considered questionable the suggestion that Article 47 para. 3 of the Charter of Fundamental Rights actually applied to European arrest warrant cases. Even if it did, the Court was satisfied that the important point was the service provided to the person involved and not the mode of provision thereof. The judge rejected the submission that the expression “in accordance with national law” demanded provision by legislation and that some other method such as the non-statutory scheme in question amounted to a contravention of that requirement.
20. In my view, the High Court judge was correct and this submission is valid. The points of difference proposed by Counsel for Mr. O’Connor do not actually distinguish the cases. Indeed, the evidence as to the operation of the existing scheme was to the same effect. None of the features affects the principle that is clearly and unequivocally stated by the Supreme Court. The Supreme Court addressed the precise issue that is in question here. The judgment given by O’Donnell J. represented the unanimous view of the members of the Court. The judgment identifies the specific question and deals with it in the clearest of terms. In the circumstances, it is unavoidable that the decision in Olsson is binding on this Court.
21. Incidental confirmation of the conclusions of the Supreme Court and Edwards J. is to be found in recent developments in the European Union, although it appears that they will not apply in Ireland or the United Kingdom. The EU has been endeavouring to find a mode of provision of free legal aid in cases of EAW, as well as in criminal proceedings generally. There are wide variations in the different Member States’ methods of providing legal aid. Some progress has been made since 2009 towards harmonising procedural safeguards in criminal cases: there are Directives on translation of proceedings, on provision of information and on the right to legal representation itself. A Directive was proposed in late 2013 and is under discussion with the Parliament which would require provision of legal aid for persons the subject of European Arrest Warrant proceedings: Council Document 6603/15. Such Community legislation would not be necessary if the Framework Decision already required free legal aid to be available for wanted persons. It also follows that there is at present no Community provision as to the means whereby legal aid is to be provided. That has been left to the national regimes of the Member States.
22. There is Community law recognition of the right of a wanted person to get legal assistance. It is the method of payment for such services that has not been harmonised to date. The right to representation is reflected in the Framework Decision but that is substantially short of provision of legal aid for wanted persons in warrant cases.
23. This was the context of the decision of the Supreme Court in Olsson. The Court held in unequivocal terms that the Framework Decision does not provide a right to have assistance at the State’s expense. Of course, the particular State may provide legal aid and that may be considered to be a legal or Constitutional right under national law. Olsson does not deny such entitlement; it rejects the proposition that the Framework Decision provides for or requires legal aid in its terms.
24. The significance is that if EU law does not itself require this service, it follows that Mr. O’Connor cannot invoke Community law principles whereby to challenge the method of supply of legal aid under our national law.
25. The Custody Issues Scheme of legal aid is therefore not in conflict with EU law generally or the Framework Decision specifically. These recent developments in the Community legislative process provide incidental confirmation of the Supreme Court’s analysis of the Framework Decision.
26. Mr. Forde applies to the Court in the event that it is of the view that the Supreme Court decision in Olsson is binding to make a reference to the Court of Justice of the European Union under Article 267 TFEU. That possibility exists now because the time period in which such references were not permitted has now expired. That would not, however, be an appropriate course to adopt even if this Court were minded to take a different view of the issue than that of the Supreme Court. While it is always prudent in these matters to eschew absolute rules, it would not be proper for this Court to seek to overturn a Supreme Court decision that was binding otherwise by referring the matter to the Court of Justice in hope of securing a different result. That would be inconsistent with the Constitutional structural relationship and the comity of the courts and is not something that this Court would be prepared to consider otherwise than in wholly exceptional circumstances. Nothing of that kind arises here.
Mr. O’Connor’s Plenary Proceedings
27. The High Court rejected the submission by the Minister and the other defendants that Mr. O’Connor did not have standing to make his challenge in this case. There is a cross-appeal against that ruling. In my judgment, the claim in this action cannot succeed for other reasons which make it unnecessary to embark on this question. The point will be clearer when I have discussed this part of the appeal.
28. The claim in Mr. O’Connor’s statement of claim is that he would be eligible because of his limited means to obtain legal aid under either the statutory criminal provision or the civil scheme. That is his right. Article 11(2) of the Framework Decision requires that there be a statutory scheme for subjects of EAW applications. The 2003 Act does not provide for legal aid and is therefore invalid, having regard to the provisions of the Constitution. That is for two reasons as claimed: first, because it is in conflict with the State’s obligations under Community law, which is discussed above. Secondly, it contravenes the guarantee of equality in Article 40.1 of the Constitution. Since legal aid is available on such formal basis for persons encountering legal process in comparable circumstances or in matters of lesser consequence for the individual, the absence of similar facility in statutory form in extradition represents an unlawful distinction that is contrary to the right to equality. The statement of claim instances by comparison and contrast a minor criminal offence and a matter coming under the International Criminal Court Act 2006, to demonstrate affairs at different ends of the spectrum which carry with them statutory legal aid entitlement. It may immediately be noted that the Rome Statute and the enacting legislation specify the availability of legal aid.
29. Mr. O’Connor’s claim, as stated, does not make it apparent how it could render the 2003 EAW Act invalid, which is the relief it seeks. That Act does not inhibit access to legal assistance. It does not provide that an individual is limited to access to a discretionary scheme. The argument by Mr. O’Connor’s Counsel seeks the invalidation of the Act because of what it does not contain. The claim refers to the whole Act, despite declaring that the Act is, in the specified circumstances of alleged discrimination, “unconstitutional . . . to that extent”. This must mean at least that all of the provisions relating to rendition of the subject of the warrant are to be condemned as invalid. There is no halfway house in this area. If the legislation is infirm because of non-compliance with the Constitution, then it must be declared invalid.
30. Under s. 13 (4) of the Act, “A person arrested under a European arrest warrant shall, upon his arrest, be informed of his right to (b) obtain, or be provided with, professional legal advice . . .” Section 29.—(1) is as follows:-
“A person shall not be surrendered under this Act if —
(a) his or her surrender would be incompatible with the State’s obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms done at 20 Rome on the 4th day of November, 1950, as amended by Protocol No. 11 done at Strasbourg on the 11th day of May, 1994,
(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason 25 that the offence specified in the European arrest warrant is an offence to which section 30(1)(b) applies).”
31. The Act itself protects a person who is the subject of a warrant from being surrendered if their human rights are infringed. It must obviously also be the case that a person could not be extradited on foot of a European arrest warrant because the legislation providing for the implementation of the system was itself to be declared unconstitutional.
32. It seems to me that there is a failure of constitutional logic in Mr. O’Connor’s case for invalidity. He is asserting a constitutional right to a scheme of legal aid for him and persons in his situation to be available as of right on a statutory basis. The only relevance of the 2003 Act is that it is the vehicle by which the EAW decision was implemented in the State. There is nothing in its provisions to which Mr. O’Connor actually objects. He is claiming a right that is separate and distinct from the provisions of the Act. The Act has nothing to say to his objection.
33. In my judgment, this claim cannot succeed as an independent case seeking to invalidate the Act for what it does not contain. It is impossible to know how much of the Act would be condemned or whether the entire legislation would fall, assuming Mr. O’Connor’s claim were to succeed.
34. The claim here may be contrasted with the issue that arose concerning s. 2 of the Criminal Justice (Legal Aid) Act 1962 in Carmody v Minister for Justice [2010] 1 ILRM 157. The section empowered the District Court to certify for representation by a solicitor in the case of indigent persons charged with offences when justice so required. It permitted provision for Counsel only in murder cases, and so, by necessary implication, excluded any right to Counsel in other cases. The Supreme Court held that the absence of a right to apply for legal aid, including Counsel in appropriate cases, represented a failure by the State, but the limited provision in s. 2(1) did not mean it was repugnant to the Constitution. In the circumstances of the failure by the State as found, the Court granted a declaration that the plaintiff had a constitutional right to apply for appropriate legal aid prior to his trial.
35. It is not in issue in this case that legal assistance at public expense is available to Mr. O’Connor if he cannot afford to pay for it himself. Neither is there any question as to the quality of the representation that is available to a requested person under the Custody Issues Scheme.
36. It seems to me that even if this Court took the view that there was some substance in the issue raised by Mr O’Connor, it would still not be appropriate or procedurally legitimate In my view, there is no basis on to consider making a Carmody-type declaration. It is not sought in the statement of claim or in the submissions, and neither is it discussed in the judgment of the High Court, nor is it mentioned in the notices of appeal.
37. Could Mr. O’Connor have sued the State, claiming the right to a statutory scheme, but without seeking to invalidate the provisions of the 2003 Act? The Court does not have to express a view on this because it was not claimed or argued. The claim if made, might have been met by a defence that the State was satisfied to provide for appropriate legal aid as certified or recommended by a Court. It seems to me that the issue of standing would more directly and immediately and relevantly arise in that context. The present litigation consists of the process of the enforcement of the warrant in addition to Mr. O’Connor’s own claim. Whatever the merits of the case, it is impossible to propose that he lacks standing to contest the compliance of the Irish arrangements with the Framework Decision. In my view, his plenary action although misconceived for the reasons I have explained, is inextricably entwined with his resistance to the enforcement of the warrant. I prefer, therefore, not to rule on the question of standing as a separate issue in the appeal and to leave the question to another occasion.
38. In conclusion, I adopt the summary of Edwards J. as follows:
“The Act of 2003 enjoys the presumption of constitutionality, and the respondent/plaintiff bears the burden of rebutting that which is presumed. In this Court’s view, there is simply no evidence before it that the Act of 2003 is constitutionally deficient in any respect, or that it permits of any unconstitutional discrimination; or for that matter that the Act of 2003 fails to respect EU law and in particular the principle of equivalence. Accordingly, the presumption of constitutionality has not been rebutted with respect to the Act of 2003, and the Court has no reason to believe that the Act of 2003 is constitutionally deficient in any respect, or that it breaches the principle of equality before law as guaranteed in Article 40.1 of the Constitution.”
JUDGMENT of Mr. Justice Gerard Hogan delivered on 23rd day of October 2015
1. Where a Framework Decision confers the right to legal assistance in European Arrest Warrant (“EAW”) proceedings “in accordance with the national law of the executing Member State”, does this mean that the person whose surrender to another EU Member State is thereby sought is entitled to be provided where necessary with such legal assistance from public funds and, if so, whether such an obligation is discharged by means of the provision of such assistance through the mechanism of an administrative scheme? Independently of this, does the failure to place this scheme on a statutory basis amount to a breach of the equality provisions of Article 40.1 of the Constitution in circumstances where other accused persons enjoy such a statutory entitlement? These essentially are the issues which this Court is required to consider in the appeal from the decision of the High Court (Edwards J.) delivered on 4th December 2014: see Minister for Justice and Equality v. O’Connor [2014] IEHC 640.
2. As it happens, the result in the case was announced on 2nd December 2014 and the judgment itself was made available to the parties on 4th December 2014 (albeit in draft form). In the interval between the 2nd December 2014 and 4th December 2014 the Court was asked to make a reference pursuant to Article 267 TFEU to the Court of Justice concerning the interpretation of the Framework Decision. Prior to 1st December 2014 no Irish court had jurisdiction to make such a reference. Article 10(3) of Protocol No. 36 to the Treaty of Lisbon provided for such a jurisdiction after a five year transitional period. The Lisbon Treaty entered into force on 1st December 2009 and the transitional period expired on 1st December 2014. In a separate judgment delivered on 12th January 2015 Edwards J. declined to make such a reference on the ground that he was now functus officio and that he had no jurisdiction to make such a reference: see Minister for Justice and Equality v. O’Connor (No.2) [2015] IEHC 26.
3. Returning now to the main judgment, Edwards J. heard two separate sets of proceedings together and delivered one single judgment on the principal issues raised. The first set of proceedings arises out of the European Arrest Warrant Act 2003 (“the 2003 Act”). In those proceedings the respondent is the subject of a European arrest warrant issued by the United Kingdom of Great Britain and Northern Ireland on the 13th June, 2011. That warrant seeks the surrender of Mr. O’Connor so that he can serve the two concurrent sentences of four years and six months respectively for tax fraud which had been imposed by Blackfriars Crown Court on 29th January 2007 following his conviction on 26th October 2006. The warrant further seeks Mr. O’Connor’s surrender to face trial on the charge that he failed to hold honour his bail in the interval between his conviction and sentence, contrary to the provisions of the (UK) Bail Act 1976.
4. In the second set of proceedings Mr. O’Connor is the plaintiff in which he challenged the constitutionality of the failure to make provision of a statutory based system of legal aid for requested persons under the 2003 Act, contending that this was contrary to Article 40.1 of the Constitution. The Minister, Ireland and the Attorney General were all named as defendants in these plenary proceedings (“the plenary proceedings”).
5. The UK warrant was endorsed by the High Court for execution in this jurisdiction on the 22nd June, 2011, and it was duly executed on the 27th March, 2012. The respondent was brought before the High Court (Sheehan J.) pursuant to s.13 of the 2003 following his arrest. The respondent was advised of his rights in the course of the s.13 hearing, including his right to obtain or to be provided with professional legal advice and representation, and a notional date (the 16th April, 2012) was fixed for the purposes of s. 16 of the Act of 2003. The respondent was remanded on bail to the date fixed. The respondent was legally represented at the s. 13 hearing. No indication was given of an intention on the part of the respondent to apply for a recommendation under the Attorney General’s Scheme.
6. Those proceeds were adjourned from time to time to enable points of objection to be filed by the respondent, Mr. O’Connor. In the end, only one objection was ultimately proceeded with, namely that pleaded in the following terms:
“The grounds of objection to the application for Mr. O’Connor’s surrender to the U.K. are –
1. Mr. O’Connor would qualify for statutory legal aid. But there is no statutory-based provision of legal aid, as required by Art. 11(2) of the Framework Decision (‘in accordance with national law’ contrast Art.5 (2) ‘under the law or practice’) as made part of national law by s.10 of the 2003 Act (‘subject to and in accordance with the Framework Decision’). On account of the nature of this objection, it should be heard and determined before any other objection is considered. Further, because the 2003 Act (as amended) makes no provision for legal aid, it is to that extent repugnant to the Constitution and, in particular, the State’s obligations under E.U. law.”
7. As the respondent did not consent to his surrender to the United Kingdom, it fell to the High Court to consider whether the requirements of s.16 of the 2003 Act have been satisfied. Edwards J. observed that the Court’s jurisdiction to make an order directing that the respondent be surrendered was dependant upon a judicial finding that they had been so satisfied. He found, however, that all the relevant statutory prerequisites (such as, for example, the identity of the requested person, the minimum gravity threshold and the correspondence of the offence with an offence under Irish law) had all been satisfied. This left the sole question of whether this State had complied with the requirements of the Framework Decision by failing to provide for a right to legal aid for requested persons on a statutory basis.
8. It is clear from the pleadings and the evidence – all of which is helpfully recounted in elaborate detail in the main judgment of Edwards J. – that the State has, in fact, established a system of legal aid for requested persons, save that this scheme is established on an administrative rather than a statutory basis. That scheme was previously known as the Attorney General’s Scheme, but in 2012 it was re-named the Legal Aid (Custody Issues) Scheme (“the Scheme”) and it took effect in that form from 1st January 2013.
9. While it is accepted that the scheme is generally an ex gratia one in that the Attorney General does not feel bound to honour every recommendation made thereunder, the evidence which was given in the High Court in both the Olsson case (Minister for Justice, Equality and Law Reform v. Olsson [2011] IESC 1, [2011] 1 IR 384) and in this case confirmed that a special rule applies in the case of recommendations made by the court in cases arising under the 2003 Act so that these recommendations are, in fact, regarded as binding.
10. In the present case, the Minister responded to a request for particulars concerning the operation of the Scheme by referring to the evidence which had been given in Olsson by a Mr. Jevon Alcock, then a solicitor in the Chief State Solicitor’s Office, which was to the effect that all recommendations for legal aid made in EAW cases arising under the Scheme were automatically honoured.
11. Similar evidence was given in the present case by Mr. Patrick Gilheaney, an assistant director of the Legal Aid Board. His principal task was to administer the Scheme. He confirmed that despite the re-naming of the Scheme in 2012, the essentials of the Scheme remained the same. He confirmed that the Scheme applied to all persons arrested under the 2003 Act, but that the question of whether the Scheme should in fact apply in any given case was dependent on an application by the requested person and the making of a judicial recommendation.
12. Mr. Gilheaney agreed that the Scheme was an ad hoc administrative scheme which had not been placed on a statutory footing. He confirmed the evidence which had been given in Olsson to the effect that payment thereunder was not regarded as discretionary in cases of recommendations made in respect of 2003 Act cases. He said that perhaps some 400 payments per annum were processed regularly under the Scheme following a judicial recommendation. Mr. Gilheaney further observed in response to a question posed by Edwards J. that the Scheme contained no formal financial eligibility thresholds, but that “the decision was made that it would rest with the Court in its wisdom to decide upon a person’s financial eligibility or otherwise.” Mr. Gilheaney agreed that in practice this amounted to an assessment by the Court as to whether the requested person’s financial means were sufficient “for a person to retain legal counsel.”
13. Mr. Gilheaney also pointed to the extensive publicity which had been given to the existence of the new Scheme and the steps which were taken to draw the attention of legal professionals to its existence.
The High Court judgment
14. In a very comprehensive judgment Edwards J. held that so far as the 2003 Act proceedings were concerned he should follow the decision of the Supreme Court in Olsson regarding the interpretation of Article 11(2) of the Framework Decision, irrespective of whether of the comments of O’Donnell J. in that case should strictly be regarded as part of the ratio decidendi or were simply in the nature of obiter dicta.
15. So far as the discrimination argument based on Article 40.1 in the plenary proceedings was concerned, Edwards J. stated:
“That approach provides the answer to the respondent / plaintiff’s suggestion that under the Act of 2003 there is an unconstitutional, alternatively illegal, discrimination and disparity in terms of the legal assistance available to a person in the respondent’s position compared with that provided to certain persons requiring such assistance in other contexts. It was contended that because there is statutory legal aid in domestic criminal cases, and for certain civil cases, and for cases based on a warrant from the International Criminal Court, and for certain Coroner’s Court matters, and for persons who might be made the subject of an [anti-social behaviour order], there is a disparity in how persons in the same or similar class are treated, and that this constitutes discrimination There might well be a disparity in terms of the mechanism employed to legally assist persons in the categories identified, compared with the mechanism employed to legally assist persons who are wanted on foot of a European arrest warrant, but there is equivalence with respect to the fundamental principle that requires to be respected, namely that all such persons are provided with effective access to justice.”
16. It will be seen that this conclusion proceeds in part on the basis that Edwards J. concluded that Article 11(2) of the Framework Decision conferred no right to legal aid and was simply concerned with the right to legal representation.
Article 11 of the Framework Decision
17. Article 11 of the Council Framework Decision of 13 June 2002 (2002/584/JHA) provides as follows:
“1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority.
2. A requested person who is arrested for the purpose of execution of a European arrest warrant shall have the right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.”
18. As has already been indicated, two issues now fall immediately for consideration in respect of the Article 11(2) issue. First, does Article 11(2) confer a right to legal aid in cases involving requested persons? Second, if there is such a right, is it satisfied by a non-statutory scheme? It may be convenient if these questions were to be considered in reverse order.
Has the right to assistance been provided “in accordance with the national law of the executing Member State?”
19. It is clear from the language of Article 11(2) the right to legal assistance must be in accordance with “the national law of the executing Member State.” This pre-supposes that the rights and entitlement of the requested person to assistance must not only be determined in a manner which is legally binding and contains clear rules, but the entitlement must be governed by law. So far as the present appeal is concerned, the only right (or, more accurately, claimed right) which is at stake is the right to legal assistance.
20. If there is such a right, then it is clear that this Member State does not provide for that right in accordance with its national law. With the exception of a common law right (which does not arise in the present case), a requirement that a right is to be provided in accordance with national law must refer to a right prescribed by an Act of the Oireachtas.
21. It is not, of course, disputed but that the Scheme is extra-statutory in nature. It is plain, moreover, that the commitment given on behalf of the Minister under the Scheme that every judicial recommendation for assistance arising under the 2003 Act will be faithfully honoured without qualification could, in principle, be enforced by virtue of the doctrine of legitimate expectations.
22. This still does not mean, however, that the Scheme was being provided in accordance with national law. The Scheme could be still by “its nature” be changed “at the whim of the authorities”: see Case 145/82 Commission of the European Communities v. Italian Republic [1983] E.C.R. 711, para. 10. It is for this reason that the Court of Justice has consistently held that administrative practices of this kind were insufficient to give legal effect to a Directive and to satisfy the requirements of Article 249 TFEU. As Costello J. remarked in the (admittedly different) context of administrative circulars regulating the education sector in O’Callaghan v. Meath Vocational Education Committee, High Court, November 20, 1990:
“These [administrative] measures are not, of course, illegal. But they have no statutory force and the sanction which ensures compliance with them is not a legal one but the undeclared understanding that the Department will withhold financial assistance in the event of non-compliance.”
23. Contrary to the views which Edwards J. expressed on this point, for my part I do think it is significant that Article 5(2) of the Framework Decision does refer to “law or practice of the issuing Member State.” While I fully agree with Edwards J. that the context of this reference is entirely different from that of Article 11(2) – since it refers to the guarantees which an executing Member State may require of an issuing Member State in cases where the surrendered person is required to serve the balance of a life sentence – what is significant is that the Union legislator has used the term “law or practice of the issuing Member State” elsewhere in the Framework Decision. In other words, if the rights guaranteed by Article 11(2) could properly have been vouchsafed by national practice – as distinct from national law – the Framework Decision could readily have said so.
24. Judged from the perspective of national constitutional law, it is all too plain that the only method whereby the Scheme could be established in accordance with law in this State is where the Oireachtas enacted legislation for this purpose in accordance with Article 15.2.1 and Article 20 of the Constitution. It is true that Dáil Éireann has voted supply by means of a financial resolution and this appropriation doubtless appears as a line item in the annual Appropriation Acts. But the Scheme nonetheless lacks the quality of publicly accessible and generally applicable legal principles, standards and rules which are the hallmark of a public general Act enacted by the Oireachtas.
25. The fact that Article 20 of the Constitution proscribes the method whereby legislation is to be enacted – or, for that matter, amended – is not something which can be blithely ignored. The deliberative process involved in the entire parliamentary system was plainly regarded by the drafters of the Constitution as an essential pre-requisite in a democracy to the legitimacy of legislation.
26. The extra-statutory nature of the Scheme is not, of course, illegal and nor does it render it in any way unlawful as a matter of domestic constitutional law. It is nonetheless not one provided “in accordance with national law” in the sense in which that term is used in Article 11(2) of the Framework Decision.
Does Article 11(2) of the Framework Decision confer a right to publicly funded legal assistance?
27. We may now turn to the first question: does Article 11(2) of the Framework Decision confer a right to publicly funded legal assistance? This is a matter which was at heart of the Supreme Court’s decision in Olsson. In that case the requested person had been legally represented at all stages of the European Arrest Warrant procedure, but neither solicitor or counsel had sought a recommendation under the Attorney General’s Scheme. It was contended instead that the Scheme itself did not comply with the requirements of the Framework Decision. As O’Donnell J. put it ([2011] 1 IR 384, 389-390):
“Accordingly the point argued in this appeal is limited to the contention that the provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is requested pursuant to a European arrest warrant.
The respondent’s case in this appeal depends on an interpretation of the Framework Decision and Act of 2003, as amended. Article 11(2) of the Framework Decision provides that a requested person has a “right to be assisted by a legal counsel … in accordance with the national law of the executing Member State”….The Framework Decision therefore imposes no obligation on the requested state to provide legal aid, whether as of right, or otherwise. It merely provides for a right of representation; and then only in accordance with the national law of the executing Member State.”
28. At the hearing of the appeal in the present case, counsel for the appellant, Dr. Forde S.C., sought to argue that this passage from the judgment was merely obiter and that this Court were not bound by these observations. He contended that, shorn of the constraints of precedent, we should look afresh again at the interpretation of Article 11(2) of the Framework Decision. Why, he argued, would the Union legislator express the right in these terms if it was not intended to provide for legal assistance in respect of those cases – quite possibly a majority of cases – where the requested person could not otherwise afford legal representation?
29. Given that all the Member States themselves adhered to the European Convention of Human Rights (with the concomitant obligation to provide legal aid contained in Article 6(1)(c) of the Convention), it might seem curious that the Union legislator would simply effectively state the obvious, namely, that the requested person had the right to legal counsel, if it was not also intended to provide for legal aid in appropriate cases as well.
30. This was especially so given the hugely technical and difficult issues – often involving a comparison of the criminal procedure and criminal law of different Member States – which can so often arise in proceedings under the EAW procedure. Could it have been intended that the Union legislator would have been prepared to deny legal aid to persons who might face a request for surrender on very serious charges to distant parts of the European Union where the individual concerned might be totally unfamiliar with the language or the nature of the legal system or had no family ties with the requesting State, while conversely such a person would have had the right to legal aid had he or she been facing more or less identical charges in their own domestic legal system?
31. This is a potentially attractive argument to which, had the matter been res integra, this Court would have been obliged to give close consideration. Indeed, in other circumstances, it might well have been appropriate to exercise the new freedom to make an Article 267 reference to the Court of Justice of the European Union on this very question of the proper interpretation of Article 11(2) of the Framework Decision following the ending of the transitional period.
32. At the same time it would have to be acknowledged that the very fact that the present common consensus among European legislators is that Article 11(2) does not confer such a right itself must be regarded as strong indicator that Olsson is correct and that Article 11(2) does not bear the interpretation for which the plaintiff contends. This is underscored by the proposed legislative changes at EU level to which Ryan P. has referred in his judgment. If there was already a pre-existing right to legal aid which had been conferred by the EAW Framework Decision, then legislative proposals to vest accused with such a right would be entirely superfluous and unnecessary.
33. For my part, however, I do not think that the issue is, in fact, res integra. The question of the proper interpretation of Article 11(2) of the Framework Decision was squarely before the Supreme Court in Olsson and it clearly ruled that this right dealt with legal representation and not with legal aid. I consider that this Court is bound by Olsson to rule adversely to this aspect of the appellant’s claim. I accept, of course, that the Supreme Court did not then – although it would now – have the freedom to make an Article 267 reference at the time it decided Olsson in January 2011, but this in itself cannot take from the authoritative nature of the decision itself.
34. It is also true that, strictly speaking, this Court also enjoys the freedom as a matter of EU law to make an Article 267 reference, irrespective of any views which the Supreme Court may have expressed on the point in Olsson. In my view, however, having regard to the hierarchical system of our legal system and the importance of precedent in that legal system, it would inappropriate for this Court to take a step which might be thought indirectly to impeach the authority of Olsson by making an Article 267 reference to the Court of Justice.
The constitutional argument
35. There remains for consideration the constitutional argument which arises in the plenary proceedings. It should be recorded that was not an issue which previously arose in Olsson. That case is, accordingly, not an authority so far as this constitutional point is concerned. The Supreme Court has expressly confirmed that just because the validity of a statute has been upheld by reference to one ground, there is no bar to a subsequent challenge to that statute on another (and novel) ground: see The State (Quinn) v. Ryan [1965] I.R. 70, 120, per Ó Dálaigh C.J. and Laurentiu v. Minister for Justice [1999] 4 IR 26, 59, per Denham J. This principle doubtless applies a fortiori to a challenge to the validity of an administrative scheme.
36. In the accompanying plenary proceedings the appellant contends that the failure by the Oireachtas to place the Scheme on a statutory footing amount to a violation of Article 40.1 of the Constitution in that he is placed at a disadvantage compared with similarly situated persons whose entitlement to legal aid is governed and regulated by statute. It is submitted that these include persons facing criminal trials for precisely the same offences (or corresponding offences) under domestic law (whose entitlement is governed by the Criminal Justice (Legal Aid) Act 1962)(“the 1962 Act”) or who are facing surrendering under the International Criminal Court Act 2006 (“the 2006 Act”).
Whether the constitutional argument is properly before the Court
37. The first question to be considered under this heading is whether this constitutional argument is properly before the Court and, if it is, whether this Court can appropriately grant a declaration to the effect that, by virtue of a lacuna in the 2003 Act, the failure to put the legal aid scheme for persons facing surrender under the 2003 Act on a statutory footing amounts to a breach of Article 40.1 of the Constitution. As this is a matter on which the Court is unfortunately divided, I propose first to address the question of whether the constitutional issue is properly before the Court.
38. The plenary proceedings (2012, 11958P) were commenced in November 2012. Paragraphs 9 and 10 of the general endorsement of claim are in the following terms:
“9…..because one or other of the said Legal Aid schemes have been made applicable to other proceedings, which are comparable to or where what is at stake for the affected individual is in no way as serious as in [European Arrest Warrant] proceedings. The EAW Act is unconstitutional to that extent, contravening, inter alia, the guarantee in Article 40 s.1 of equality before the law: for instance, s. 23(5) and s. 23(6) of the International Criminal Court Act 2006 and s. 118 of the Criminal Justice Act 2006 (“civil” anti-social behaviour orders) as well as an extensive range of other civil proceedings.
10. Accordingly, since the plaintiff would at the time be eligible for legal aid under the aforesaid regimes but neither the EAW Act or other legislation or statutory instrument applies one or other of these regimes to the EAW proceedings, the EAW Act is unconstitutional and contravenes E.U. law to that extent, a consequence of which the plaintiff’s surrender under the aforesaid EAW Act is not permitted.”
39. The plaintiff then simply claimed “a declaration accordingly” in the prayer for relief. These claims were repeated in the statement of claim delivered on 23rd November 2012. Paragraphs 12 and 13 of the State’s defence delivered on 13 October 2013 are in the following terms:
“11. It is denied that the European Arrest Warrant Act 2003 as amended is unconstitutional due to the availability of legal aid in respect of other proceedings which are comparable or less serious for the individual than proceedings under the European Arrest Warrant Act 2003 as amended.
12. It is denied that the European Arrest Warrant Act 2003 as amended contravenes the guarantee in Article 40.1 of the Constitution of equality before the law.”
40. The plaintiff’s High Court written submissions dated 29th May 2014 clearly raise these issues. While it is unnecessary to reproduce these submissions in this judgment, it is perhaps sufficient to state that these submissions contend that the 2003 Act was unconstitutional to the extent that it failed to provide legal aid when such a right was available to similarly situated litigants. The plaintiff further contended that legislation could be unconstitutional “to the extent that it fails to make provision for certain entitlements.” The plaintiff then referred to other cases dealing with the application of Article 40.1 to the extradition/surrender of accused persons such as McMahon v. Leahy [1984] I.R. 525 and O’Sullivan v. Irish Prison Service [2010] 4 I.R.562.
41. The written submissions of the State dealing with the constitutional issue focussed first on the application of Cahill v. Sutton [1980] I.R. 269 and the plaintiff’s alleged lack of locus standi to challenge the absence of a statutory entitlement to legal aid. It should be said that this particular objection was rejected by Edwards J. as he found that the plaintiff’s financial circumstances were “unhappy” and that he would “most likely qualify for legal aid under the Criminal Justice (Legal Aid) Act 1962 if he were facing a criminal charge in this jurisdiction.” The State has not sought in this appeal to disturb that finding of fact.
42. The balance of the State’s arguments on the constitutional issue were directed – in admittedly relatively brief terms – to the substance of the Article 40.1 claim. Relying on the dicta in cases such as Minister for Justice, Equality and Law Reform v. Sliczynski [2008] IESC 32 which stressed that proceedings under the EAW procedure were sui generis, the State contended that measures such as the 2006 Act dealing with the International Criminal Court were accordingly not an appropriate comparator for this purpose.
43. The constitutional issue was fully addressed in the main judgment of Edwards J. at paras. 54-57 of that judgment. He rejected the Article 40.1 arguments for reasons I will separately and presently consider. It is true that the question of the form of a declaration is not addressed in the judgment of Edwards J., but since, of course, he rejected the argument on its merits the issue of a potential remedy simply did not arise for consideration.
44. The plaintiff’s notice of appeal of 5th March 2015 from that decision of Edwards J. seeks “a declaration of unconstitutionality and/or incompatibility with EU law” insofar as “the European Arrest Warrant Act 2003, as amended, does not provide for the type of legal aid being contended for.” The plaintiff’s written submissions of 31st March 2015 address the merits of the Article 40.1 issue under the headings of equivalence/equality with sub-headings dealing with appropriate comparators and whether these distinctions were justifiable. The written submissions of the State dated 13th April 2015 also address these arguments, specifically stating (at para. 58) that there is no basis “in European Law or in the Constitution requiring an equivalent scheme to provide for legal representation in differing situations.”
45. These submissions were repeated by counsel on both sides in the course of the hearing. The transcript of the hearing before this Court makes it clear that counsel for the plaintiff was relying on the equality argument independently of any argument based on Olssson. Counsel for the State also addressed the Court on the equality issue, stressing that there was no “invidious discrimination” and that the plaintiff had not “identified how he has been treated differently to any group of people who are in an equally comparable position to himself.”
46. In my view, the Article 40.1 issue was squarely before the Court. It is true that neither counsel elected not to make any submissions on the precise form of remedy in the event that a breach of Article 40.1 was disclosed, but I do not think that either side realistically contend that they did not have fair notice that this issue might arise were the Court to arrive at a conclusion that Article 40.1 had been infringed. The State defendants plainly faced the possibility that the 2003 Act might be declared unconstitutional and they were on full notice of this. The grant of a declaration identifying a constitutional breach by reason of the legislative lacuna while at the same time refusing to declare the 2003 Act unconstitutional is surely less intrusive so far as the State is concerned as compared with a more broad ranging declaration of constitutional invalidity which might otherwise have been granted.
47. In these circumstances I consider that I am entitled to consider the merits of the constitutional argument.
The merits of the constitutional argument
48. As I have already noted, a key part of the plaintiff’s argument is that the failure to provide a statutory scheme of legal aid in the case of persons facing surrender under the 2003 Act amounts to an unconstitutional discrimination contrary to Article 40.1.
49. One of the immediate comparators relied on for this purpose is that of persons facing surrender under the International Criminal Court Act 2006. In the latter case, s. 23(5) and s. 23(6) of the 2006 Act provide:
“(5) The Court shall order that legal aid be provided for the arrested person if it appears to it that the person’s means are insufficient to enable him or her to obtain such aid.
6. On the making of such an order the arrested person shall be entitled to free legal aid in the proceedings and for that purpose s. 3 of the Criminal Justice (Legal Aid) Act 1962 shall apply, with the necessary modifications, in relation to the person as if he or she had been granted a legal aid (trial on indictment) certificate under that section.”
50. In the High Court Edwards J. rejected the argument that the 2006 Act provided an appropriate comparator noting that “a requirement to provide legal aid is created by Article 55 and Article 67 the Rome Statute of the International Criminal Court.” Article 55 deals with legal aid at the questioning stage and Article 67 deals with legal aid at the trial of the accused before the International Criminal Court itself. While Part IX of the Rome Statute deals with the surrender of accused persons by the requested state, contrary to what Edwards J. appears to have suggested, there appears to be no entitlement to legal aid in respect of the actual surrender process itself before the national authorities. This simply serves to make the comparison between the 2003 Act and the 2006 Act even more apt so far as the plaintiff is concerned.
51. It is true, of course, that there are significant differences between all three regimes. In particular, the 1962 Act is directed to persons facing criminal trial in this State. Likewise, the circumstances in which the request procedure under the 2006 Act might be invoked would, in practice, be confined to quite exceptional cases. Whereas surrender requests under the 2003 Act are routine, there seems to be no recorded case where the 2006 Act procedures have been invoked to date.
52. One might also observe that the practical effects of the differing treatment as between the different regimes may not be great, especially if – as was confirmed in Olsson – any judicial recommendation for legal aid is honoured by the Minister as a matter of invariable practice and not simply as a question of gratuitous benevolence. There are nevertheless real differences between the Scheme and a statutory entitlement under, e.g., the 1962 Act or the 2006 Act. These differences were summarised thus by Edwards J.:
“• Application to avail of the scheme has to be made at the very outset, often when the individual or a solicitor may have no inkling of how difficult or protracted the case may be or the person’s prospect of success.
• Although an application is made at the outset, it is only when the case concludes that a recommendation may be made. At the conclusion, a recommendation may be refused by the court, but there are no available criteria as to how this discretion is to be exercised; different judges may have radically different approaches to this. The Court is invited to contrast the position under the two existing statutory legal aid schemes created by the Criminal Justice (Legal Aid) Act 1962 and the Civil Legal Aid Act 1995.
• In terms of the critical question of financial eligibility, there are no available criteria concerning assets or income, which will disqualify a person from benefiting under the scheme. A court is left entirely at large, and different judges may have radically different approaches to this. Again, the Court is invited to contrast the position under the two existing statutory legal aid schemes created by the Criminal Justice (Legal Aid) Act 1962 and the Civil Legal Aid Act 1995.
• Requiring a court to deal with all disputes about financial eligibility, even if threshold criteria existed, offends against the separation of powers, since this is an entirely administrative function that can be discharged by the Legal Aid Board, as it is under the Civil Legal Aid Act 1995.
• The present scheme has never been amended to make it clear that the ‘discretion is exercised only in one way’ in European arrest warrant cases.”
53. The Scheme thus lacks the detailed, legal criteria of a kind to be expected in a statutory provision, not least the all important criteria dealing with financial eligibility.
54. In this respect, it is impossible to avoid the conclusion that persons whose surrender is requested under the 2003 Act are not in this respect treated equally before the law in the manner required by Article 40.1 so far their entitlements to legal aid is concerned. In the case of persons whose surrender is sought under the 2003 Act, their entitlement to legal aid rests on the operation of an extra-statutory scheme as leavened by judicial practice and commitments given by State officials, whereas in other essentially similar cases the entitlement is governed and regulated by law, i.e., legislation enacted for this purpose by the Oireachtas.
55. It is also undeniable that both the extra-statutory nature of the Scheme and the fact that the person facing surrender must wait until the conclusion of the hearing for a judicial determination – which itself is not based on any fixed criteria – as to eligibility and the making of a recommendation dilute the position of the client. In contrast to the position under the 1962 Act, the requested person is thus placed at a greater disadvantage in securing appropriate legal services and, indeed, for that matter, subtly weakens his or her right to object or complain if dissatisfied with the level of legal services actually provided.
56. It must equally be concluded that, so far as this issue is concerned, there are no real differences of substance between the cases of persons facing trial in a domestic court or facing surrender under the 2006 Act on the one hand and those facing surrender under the 2003 Act on the other. It could hardly be correct that, for example, the legal aid entitlements of a requested person facing surrender to London on fraud charges should rest on the terms of a purely administrative scheme with all its attendant uncertainties (even if – as must be accepted – that scheme is invariably applied in a positive manner once there is a judicial recommendation to this effect) whereas such a person facing trial in Dublin on exactly the same charges would have a statutory entitlement to legal aid in the manner specified by the 1962 Act.
57. No meaningful distinction, moreover, can be drawn for this purpose between surrender requests made under the 2003 Act and those made under the 2006 Act. Indeed, it may be noted that this is tacitly acknowledged by Article 16(4) of the Framework Decision when, dealing with multiple requests for surrender, it provides that:
“This Article shall be without prejudice to the Member States’ obligations under the Statute of the International Criminal Court.”
58. In this respect, it must be recalled that the Supreme Court has confirmed that the principle of equality in Article 40.1 is engaged by the differing treatment of requested persons in extradition proceedings: see McMahon v. Leahy [1984] I.R. 525. Nor can these differences be properly viewed as reflecting what Ó Dálaigh C.J. regarded in The State (Hartley) v. Governor of Mountjoy Prison, Supreme Court, 21st December 1967 as a “diversity of arrangements” in respect of the differences in the extradition regime governed by Part II and Part III respectively of the Extradition Act 1965.
59. In Hartley the Supreme Court found nothing objectionable in the fact that extradition arrangements to the United Kingdom (in Part III) were significantly different than similar arrangements with other countries. There was plainly an objective justification for such differences, since our relations with the UK in terms of history, tradition, language, culture, legal system, free movement of persons and, not least, geographical propinquity are such as would justify special arrangements for the extradition of suspects to our nearest neighbour as compared with all other countries.
60. It is, of course, absolutely correct to state that surrender under the EAW procedure is sui generis. To the extent, therefore, that the substance of the procedure under the 2003 Act is governed by EU law it would be inappropriate to import purely national rules regarding evidence and pre-trial procedure into that system: see, e.g., Minister for Justice, Equality and Law Reform v. Sliczynski [2008] IESC 73, per Macken J.
61. It is also correct to state that the EAW procedure provides for a system of surrender based within the European area of justice and home affairs which system is in turn based on mutual trust and respect. To that extent the surrender procedure cannot properly be compared with the system of extradition to third countries: see O’Sullivan v. Chief Executive of the Irish Prison Service [2010] IEHC 301, [2010] 4 I.R. 301, per McKechnie J. This, indeed, was one of the reasons why McKechnie J. rejected Article 40.1 arguments advanced by the applicant in that case regarding the more limited rights of appeal afforded to a respondent in EAW proceedings as distinct from the right of appeal afforded to persons facing extradition requests under the Extradition Act 1965 (“the 1965 Act”). McKechnie J. took the view that the EAW was not a proper comparator and, moreover, “any differences which do exist between the two systems are entirely justified given the ultimate objectives of the EAW Scheme under the Framework Decision.”
62. While fully accepting the differences as articulated by McKechnie J. in O’Sullivan between surrender under the EAW procedure as compared with the extradition arrangements contained in the 1965 Act, I do not think that these differences are dispositive so far as the equality issue presented in this case is concerned. It is one thing for the Oireachtas to prescribe different appellate procedures in the case of surrender applications under the 2003 Act as compared with extradition under the 1965 Act. It is quite another to have starkly different arrangements regarding the legal aid entitlements of persons who, depending on their circumstances, are facing either trial in the State or surrender under the 2003 Act or the 2006 Act or extradition under the 1965 Act. The legal aid entitlements of the accused persons or the persons facing surrender goes to the substance of the entire fairness of the relevant legal procedures and these arrangements have considerable implications for personal liberty.
63. No similar objective justification has really been advanced in the present case for this differing treatment. It is, frankly, difficult to see why a statutory scheme has been put in place for one group of persons facing criminal trial either at home (under the 1962 Act) or surrender abroad to the International Criminal Court (under the 2006 Act), while at the same time another group facing surrender under the 2003 Act are required to be content with an administrative scheme. While as injustices caused by unfair differentiation go, the practical impact of this differentiation is probably modest, even if it is nonetheless real in some cases. Specifically, the difference rests between an enforceable legal right based on clear criteria contained in statute on the one hand and something slightly less than that contained in an administrative scheme. It is nevertheless telling that the Scheme does not contain firm financial guidelines regarding eligibility and the final decision as to whether a recommendation will be made comes only at the end – and not at the start – of what may be a hugely complex High Court hearing lasting several days and may depend on the application of essentially subjective factors made by the individual judge.
64. Nor can it be satisfactory that the actual operation of the Scheme rests on assurances given by public servants given in the course of litigation as distinct from the actual wording of the Scheme itself. It is true that such a commitment given publicly in this fashion – and recorded in the Supreme Court judgment in Olsson – very probably gives rise to a legitimate expectation which could be positively enforced in litigation. Yet, as the case-law on legitimate expectations itself shows (see, e.g., Curran v. Minister for Education and Science [2009] IEHC 378, [2009] 4 I.R. 300), the State’s capacity to escape from the constraints of a formal promise or invariable practice of this nature is somewhat greater than if the commitment were to be embodied in legislation which can only be altered or amended by the Oireachtas.
65. The differences between the statutory and the non-statutory arrangements accordingly cannot be dismissed as being purely theoretical, even if they are likely to be modest in practice. In these circumstances there is nevertheless, to adopt the language of Henchy J. in the extradition case of McMahon v. Leahy [1984] I.R. 525, 541, an “unequal treatment…of citizens who, as human beings, are in equal condition in the context of the law involved.” Moreover, irrespective of whether such arrangements are classified as either extradition or surrender, the substance of the matter is that a person facing surrender under the 2003 Act has, objectively speaking, the same need for legal aid as if he were facing trial on similar charges in the State or facing surrender under the 2006 Act.
66. In these circumstances the conclusion that the fundamental precept of equality before the law contained in Article 40.1 has been breached is accordingly unavoidable.
To what remedy is the appellant entitled in respect of this breach of Article 40.1?
67. In the plenary proceedings the plaintiff has claimed a declaration that the 2003 Act is unconstitutional “insofar as the European Arrest Warrant Act 2003 (as amended) does not provide for the type of legal aid being contended for.” Accordingly, therefore, the real source of complaint is not so much what the 2003 Act contains but rather in respect of what it does not contain. The finding of unconstitutionality in respect of both Article 40.1 relates to a legislative failure to provide for a statutory scheme of legal aid having so provided in the case of other comparably situated persons. This is the substance of the plaintiff’s constitutional challenge.
68. In these circumstances, given that the identified unconstitutionality relates to a legislative lacuna, an order declaring the 2003 Act to be unconstitutional would be inappropriate. Just as I observed in the High Court in BG v. Ireland (No.2) [2011] IEHC 445, [2011] 3 IR 748,767 (where a similar unconstitutional lacuna had come to light), a finding of unconstitutionality would serve no real purpose in the present case “other than a Samson-like collapsing of the legislative pillars which gave rise to the unconstitutionality in the first instance.” At the same time, this Court must fashion an effective remedy to address the legislative lacuna if it is to be faithful to the constitutional command contained in Article 40.3.1 to “defend and vindicate the personal rights of the citizen”, so far as it is practicable to do so. It is in these particular circumstances that the court “will feel obliged to fashion its own remedy”: see McDonnell v. Ireland [1998] 1 I.R. 134, 148, per Barrington J.
69. Similar views were expressed by Murray C.J. in Carmody v. Minister for Justice [2009] IESC 71, [2010] 1 IR 635, 668 – where an unconstitutional legislative lacuna of this kind has been identified- to the effect that in this type of case the court enjoys a constitutional jurisdiction “to grant such remedy as it considers necessary to vindicate the right concerned.” In that case the applicant contended that the fact that he had no right to apply for criminal legal aid in a District Court trial which would provide him with representation by counsel as well as a solicitor and therefore no right to be granted such legal aid where the essential interests of justice so require. The Supreme Court held while that the Criminal Justice (Legal Aid) Act 1962 was not unconstitutional, the failure to make provision in suitable cases for the present of counsel at a criminal trial was, objectively, a breach of the accused’s entitlement under Article 38.1 to trial in due course of law. Viewed thus, Carmody is really a classic example of an unconstitutional lacuna where the invalidation of the underlying legislation is neither an appropriate or a necessary remedy.
70. What, then, should the remedy in the present case actually be? I confess that I have not found it easy to arrive at an entirely satisfactory solution. In Carmody Murray C.J. stated that ([2010] 1 IR 635, 669):
“…. it would be unjust and contrary to the appellant’s right to a trial “in due course of law” as required by Article 38.1 of the Constitution if the prosecution of the charges brought against him were allowed to proceed while he is denied the right to apply for legal aid to include solicitor and counsel and have that application determined on its merits. To allow a trial to proceed without any possibility of determining whether it was essential to a fair hearing that the defendant be represented by solicitor and counsel would be, in the words of O’Higgins C.J., in the Healy case, ‘to tolerate injustice’”.
71. It seems to me, however, that the potential injustice disclosed in Carmody was more acute, real and immediate than in the present case. While it is clear from Carmody that the remedy must be appropriate and effective to address the unconstitutional lacuna, the parallel remedy suggested in this case – restraining the surrender of the accused pending the enactment by the Oireachtas of the appropriate legislation – would have a disproportionate effect on the smooth operation of the European Arrest Warrant system which could scarcely be warranted having regard to the facts of this case. As I have already pointed out, while the effect of the unconstitutional discrimination is real, the practical disadvantages of this lacuna so far as this plaintiff are probably relatively modest.
72. In these circumstances, I consider that it suffices, for present purposes, simply to grant a declaration that the failure on the part of the Oireachtas to ensure that persons facing surrender requests under the 2003 Act have the same rights by law to legal aid as they would if facing trial on indictment in this State for corresponding offences amounts to a breach of Article 40.1. It is not necessary at this stage to go any further and, specifically, any remedy which involved at this point granting an order restraining the surrender of the plaintiff on foot of the EAW request would represent a disproportionate interference with the operation of the 2003 Act and would tend to undermine the mutual trust and goodwill which are inherent in the European Arrest Warrant procedure.
Conclusions
73. In summary, therefore, I would hold as follows:
74. This Court is bound by the decision of the Supreme Court in Olsson to hold that the right to legal assistance provided for in Article 11(2) of the Framework Decision refers only to the right to legal representation and not to legal aid as such.
75. So far as the plenary proceedings are concerned, I am of the view that the failure to provide persons facing surrender under the 2003 Act with the same legal entitlements to legal aid as would obtain if they were facing trial on indictment in this State or facing surrender to the International Criminal Court under the 2006 Act amounts to a clear breach of the guarantee of equality before the law in Article 40.1.
76. In the light of the Supreme Court’s decision in Carmody it is clear that it falls to this Court to fashion the most appropriate remedy to address this unconstitutional lacuna. In the present case an order restraining the surrender of the accused pending the enactment by the Oireachtas of the appropriate legislation – would have a disproportionate effect on the smooth operation of the European Arrest Warrant system which could scarcely be warranted having regard to the facts of this case. While the effect of the unconstitutional discrimination is a potentially real one so far as this plaintiff is concerned, the practical disadvantages of this lacuna are nonetheless probably relatively modest. It is, accordingly, simply sufficient to grant a declaration that the failure on the part of the Oireachtas to ensure that persons facing surrender requests under the 2003 Act have the same rights by law to legal aid as they would if facing trial on indictment in this State for corresponding offences amounts to a breach of Article 40.1.
JUDGMENT of Ms. Justice Irvine delivered on the 23rd day of October, 2015
1. I have read and considered the judgments of the President and Hogan J. on this appeal. Having done so, I gratefully adopt the summary of the factual background to these proceedings set out by Hogan J. at paras. 1 to 11 of his judgment. Likewise I fully agree with the President’s summary of the backdrop to the European Arrest Warrant Act 2003 (“the 2003 Act”) and in particular his explanation of the Council Framework Decision of 13th June, 2002 (“the Framework Decision”).
2. Like my colleagues, I too am satisfied that the first issue posed for the Court’s consideration, namely whether Article 11.2 of the Framework Decision imposes an obligation on the requested State to provide legal aid to a person whose surrender is sought under an European Arrest Warrant (“EAW”), was earlier decided by an unanimous Supreme Court in Minister for Justice v. Olsson [2011] 1 IR 384.
3. In Olsson, O’Donnell J. considered the proper interpretation of Article 11.2. He did so having specifically identified the issue to be decided on the appeal which he expressed in the following manner at para. 8 of his judgment:-
“Accordingly, the point argued on this appeal is limited to the contention that the provision of legal assistance under the terms of the Scheme falls short of what is required by law for a person whose return is requested pursuant to a European Arrest Warrant”.
4. He then proceeded to answer that question in light of the submissions of the parties commencing at para. 11 of his judgment. It is unnecessary for the purposes of this judgment to set out the text of that part of his judgment here. Suffice to state that having considered the same I reject as unsustainable the submission made on the appellant’s behalf that this Court could conclude that O’Donnell J.’s analysis of the obligations imposed by the relevant Article might be considered obiter to his decision.
5. I also join with my colleagues in their judgment that it would be inappropriate and indeed improper for this Court to seek to overturn or side-step the decision in Olsson, which is of course binding on this Court, by making a reference to the Court of Justice of the European Union under Article 267 TFEU. To do so would be inconsistent with the hierarchical structure of our legal system and would also undermine the concept of legal precedent which is of such importance in the context of providing certainty and consistency in the judicial process.
The Plenary Proceedings.
6. Having regard to what is stated by Hogan J. at paras. 37 to 47 of his judgment, I am also satisfied that that the constitutional argument based upon Mr O’Connor’s claim that the 2003 Act fails to vindicate his equality rights as guaranteed by Article 40.1 is properly before this Court on appeal. The issue was fully canvassed in the pleadings before the High Court, the defendants engaged with the issue in para. 12 of their defence and the argument rejected by Mr. Justice Edwards, at pps. 54 to 57 inclusive of his judgement.
7. It is the relief which Mr. O’Connor seeks, should the Court rule in his favour, that causes me difficulty. Having claimed a breach of his Article 40.1 rights he claims that “the 2003 Act is unconstitutional to that extent contravening inter alia the guarantee in Article 40.1 of equality before the law. As a consequence, his surrender under the EAW is not permitted.” He then claims the following relief:-
“AND THE PLAINTIFF CLAIMS:
1. A declaration accordingly
2. Further and other relief
3. Costs”
8. In other words, Mr. O’Connor seeks to have the Court declare unconstitutional all of the provisions in the 2003 Act as relate to the surrender of persons against whom an EAW has been issued regardless of the fact that, as is referred to by the President in his judgment, he takes no issue with any particular provision of the Act itself in terms of its constitutionality. His real complaint is about a lacuna in the legislation in that it does not provide him with a statutory regime for legal aid in the context of his EAW proceedings. While there might in exceptional circumstances be grounds for striking down an Act of the Oireachtas by reason of the absence therefrom of some particularly vital provision, this is, on the facts, certainly not such a case.
9. Notwithstanding the fact that the remedy sought by Mr. O’Connor is one which I would have to refuse even if satisfied as to the correctness of his equality argument, I agree with Hogan J. that it would be wrong to refuse to consider granting Mr. O’Connor the alternative relief of a declaration to the effect that the 2003 Act failed to vindicate his Article 40.1 rights, if satisfied as to the validity of that claim. I do not reach that conclusion lightly in circumstances where it appears that the parties in the High Court did not debate the form of relief that might be available to Mr. O’Connor if he was to only succeed in relation to the constitutional aspect of his claim. However, I am satisfied that such relief could be afforded to Mr. O’Connor without visiting any injustice upon the defendant.
Constitutional Argument.
10. Simply put, the claim Mr. O’Connor makes in his pleadings is that statutory legal aid regimes such as those provided for in the Criminal Justice (Legal Aid) Act 1962 (“the 1962 Act”) and the Civil Legal Aid Act 1995 have been made available to individuals who are in a comparable or less serious position to those the subject matter of EAW proceedings, in terms of what is at stake. He contrasts his position to the individual whose surrender is sought to the International Criminal Court under the International Criminal Court Act 2006 and a person facing relatively modest criminal proceedings in this jurisdiction. Both have an entitlement to a statutory scheme of legal aid whereas none such is available to him although facing a request for his surrender under the 2003 Act. Thus, insofar as their entitlement to be legally aided is concerned, persons whose surrender is requested under the 2003 Act are not treated equally before the law in the manner required by Article 40.1. Their entitlement to legal aid rests upon the operation of what was at the relevant time known as the Attorney General’s Scheme (“the Scheme”), renamed the Legal Aid (Custody Issues) Scheme as of 1st January 2013, which is non-statutory in nature.
11. In the course of legal submission, significant emphasis was placed upon the provisions of s. 23(6) of the International Criminal Court Act 2006 which entitles an individual whose surrender is sought to the International Criminal Court to statutory legal aid under the 1962 Act. In terms of equivalence the position of such an individual could not be distinguished from his own when facing potential surrender under the 2003 Act. The Court was urged to consider the disparity in the type of legal aid available to Mr. O’Connor under the 2003 Act and to conclude that the same could not be justified. Accordingly, the guarantee afforded him by Article 40.1 required that he be afforded a scheme of legal aid that is governed and regulated by statute.
12. In the course of the High Court proceedings Mr. Patrick Gilheaney, who was responsible for the administration of the Scheme, gave evidence that the Scheme was of an ad hoc nature and applied to all persons arrested under the 2003 Act. He stated that payment under the Scheme was not regarded as discretionary and that once the judge dealing with the matter made a recommendation that payment would be made. As to eligibility thresholds, he advised that there were none such and that it was left to the presiding judge to make an assessment as to whether the individual concerned had sufficient financial means to retain legal counsel. The thrust of his evidence was that all recommendations for legal aid made in EAW cases are automatically honoured. As a matter of practice, when EAW proceedings are first before the court, the lawyer who has accepted instructions indicates to the court that they will be applying for the Scheme at the conclusion of the proceedings and at that point in time the judge invariably makes a recommendation for payment. That being so it must be accepted that it is only at the end of the process that there is absolute certainty as to whether or not those instructed will be paid for the services which they have provided. However, even if perchance the presiding judge were to refuse the necessary recommendation, the individual whose surrender had been sought would have had the benefit of full legal representation and advice from the start to the very end of the legal process. It would be the legal team that would be at a loss.
Discussion.
13. The first matter to observe is that an individual’s right to legal aid, whilst provided for in the Criminal Justice (Legal Aid) Act 1962 does not stem from statute as was advised by Murray C.J. in Carmody v. The Minister for Justice [2009] IESC 71. At p. 653 he stated the following concerning that right:-
“[63] One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely a means of vindicating that right.”
14. Concerning the right to legal aid, O’Donnell J. in Olsson noted:-
“The right to be represented, and if unable to pay for representation to have such representation provided is really an aspect of the right to a trial in due course of law guaranteed by Article 38.1 and the administration of justice required under Article 34.1 of the Constitution. A trial on a serious charge without such legal assistance would fall short of those constitutional standards (see The State (Healy) v. Donoghue [1976] I.R. 325). The Constitution focuses on the fairness of the trial, not on the precise manner in which any representation is made available.”
15. Henchy J. at p. 353 of that judgment described the constitutional obligation to provide free legal advice and representation in criminal cases in the following manner:-
“When the Constitution states that “no person shall be tried on any criminal charge save in due course of law” (Article 38 S1), that (the State guarantees in its laws to respect, and, as far as practicable, by its laws to defendant vindicate the personal rights of the citizen” (Article 40.3.1), that “the state shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property right of every citizen” (Article 40.3.2), and that “no citizen shall be deprived of his personal liberty save in accordance with law” (Article 40.4.1), it necessarily implies, at the very least, a guarantee that the citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner, or in circumstances, calculated to shut him out from a reasonable opportunity of establishing as innocence; or, where guilt has been established or admitted, of receiving a sentence appropriate to his degree of guilt and his irrelevant personal circumstances.”
16. Looking first at the issue of equivalence in the context of an individual’s constitutional right to legal aid, in my view an individual served with an EAW is not engaged in a process which by any stretch of the imagination could be considered equivalent to that which happens in the course of a criminal trial. The individual whose surrender is sought is either due to stand trial at some future date in a member state where their liberty will be at stake or will already have been convicted and lost their liberty by reason of a trial conducted in another member state. His liberty is not at stake in the manner in which it is at stake in the course of a criminal trial.
17. In these proceedings Mr. O’Connor faces a request for his surrender to the English authorities to serve a prison sentence imposed upon him there following his conviction on two charges of revenue fraud and also to face one charge of unlawful bail jumping. It is also important to emphasise that his return is sought to another member state in the context of the legislation introduced as a result the Framework Decision intended to streamline extradition among member states and in the context of a renewed trust and confidence in the courts of the member states. It is convenient for me to borrow the following text from the introductory section of the judgment of the President.
“The European arrest warrant is a function of an EU Framework Decision that was intended to streamline extradition among member states by replacing inter-State requests with enforcement of court orders from one country to another. The scheme is founded on trust in the systems of justice in the participating states. Cumbersome rules of procedure were replaced by a standard unified process that applied across the European Union. Strict time limits were laid down so that the process of transmitting a wanted person from where he was arrested to the requesting State court would operate smoothly and efficiently. Some of the old rules were dispensed with because they were thought to be unnecessary in the new community of trust in common precepts of substantive and procedural justice.”
18. It is true to say that the EAW proceedings potentially have serious consequences for Mr. O’Connor in that if he is returned to England he will likely serve the prison sentence already mentioned. However, the proceedings before this Court do no more than seek his transfer to the jurisdiction of another member state where he was found guilty of those charges thus depriving him of his right to liberty. Following the approach taken by Murray C.J., when describing the extradition process in Attorney General v. Parke (unreported, Supreme Court, 6th December, 2004) it may fairly be said that the proceedings under the 2003 Act should be considered to be more in the nature of a sui generis inquiry. At p. 11 of his judgment he stated:
“I should first of all state the obvious, namely, that although extradition may entail serious consequences for a person subjected to it, such as the loss of liberty, extradition proceedings are not a criminal process and are not in the nature of a criminal trial. The burden of proof of facts which may rest on the applicant in these proceedings is not that of a criminal trial. I hasten to add that the learned High Court judge did not approach this matter on such a basis and it is just that I consider it appropriate at this point to distinguish between extradition proceedings and other forms of proceedings, criminal and criminal and civil. An extradition proceeding, pursuant to the relevant Acts, has its own special features which in a certain sense makes it sui generis.”
19. Accordingly, insofar as Mr. O’Connor seeks to equate his position in these EAW proceedings to the position of an individual facing criminal charges in this jurisdiction and whose liberty is at stake, I am not satisfied his equivalence claim is well founded.
20. Even if Mr. O’Connor had not been convicted in England and his surrender was sought for the purposes of securing his return to stand trial on charges of tax fraud, in my view he could not successfully argue that he was in an equivalent position to a member of the public in this jurisdiction facing trial for some other criminal offence. It is only subsequent to his surrender that he will find himself in an equivalent position to his Irish counterpart in this jurisdiction. As was stated by the Chief Justice in The State (O) v. Daly [1977] 1 I.R. 312, at 315:-
“There is a danger that the decision in Healy’s case may be misunderstood in the sense that it may be regarded as plight applying to situations in circumstances which were not contemplated. It is worth recalling, therefore, that the decision in that case applies only to the trial of persons charged with criminal offences and not to the earlier or ancillary stages of criminal proceedings. It has to do with the circumstances in which the interests of justice and the requirements of a fair trial necessitate that the person charged be provided with legal assistance if he cannot provide such for himself.”
21. That brings me conveniently to the Mr. O’Connor’s submission that the constitutional requirement that he be treated equally before the law as per Article 40.1 mandates that he should be provided with legal aid under a statutory scheme equivalent to that which would be enjoyed by an individual facing extradition under the International Criminal Court Act 2006.
22. On the facts it is very difficult to distinguish between the position of an individual arrested under the 2003 Act and one whose surrender is sought under the International Criminal Court Act 2006. Each are sought to be surrendered to different authorities but for the same purpose; either to serve a sentence already imposed or to meet charges that have been proffered. Both provide for the surrender of fugitives from justice and the procedure set out for seeking and effecting surrender are almost identical. While it is of course true to say that the 2006 Act deals with offences which are perhaps the most grave in the context of society as a whole such as genocide, war crimes and crimes against humanity, it is possible that a person against whom an EAW has issued could equally be facing or have been convicted of venous crimes which would carry equivalent penalties to those that might be imposed by the International Criminal Court under the 2006 Act.
23. It must be accepted that the 2006 Act is different from the 2003 Act insofar as it provides as follows: –
“S23(5) The Court shall order that legal aid be provided for the arrested person if it appears to it that the person’s means are insufficient to enable him or her to obtain such aid.
(6) On the making of such an order the arrested person shall be entitled to free legal aid in the proceedings and for that purpose section 3 of the Criminal Justice (Legal Aid) Act 1962 shall apply, with the necessary modifications, in relation to the person as if he or she had been granted a legal aid (trial on indictment) certificate under that section.”
24. It is accordingly clear that individuals facing surrender under these two separate Acts of the Oireachtas have legal representation provided to them albeit that that such representation is delivered in a different manner. The individual facing surrender under the 2006 Act receives legal aid from the outset which is provided through the mechanism of the 1962 Act while his counterpart whose surrender is sought under the 2003 Act will also have legal representation from the outset under the scheme but where it cannot guaranteed with absolute certainty that the lawyers will be paid until the end of the process when the judge will decide whether or not to make the necessary recommendation.
Conclusion.
25. I regret to say that while I am in agreement with Mr Justice Hogan that individuals facing a request for their surrender under the Acts of 2003 and 2006 should be considered to be in an equivalent class for the purposes of the constitutional argument, I cannot agree with him that Mr. O’Connor’s Article 40.1 rights have been breached by reason of the absence of a right to the benefit of a statutory legal aid scheme under the 2003 Act.
26. It is important not to lose sight of precisely what right Mr. O’Connor maintains he is entitled to. He has a constitutional right to have competent legal representation provided by the state if he is unable to pay for it himself. He does not have a right to have that representation provided via any particular scheme, statutory or otherwise. The 1962 Act, to the extent that it makes provision for legal aid, is merely a means whereby the constitutional right to legal representation may be vindicated, as was held by Murray CJ in Carmody.
27. The mechanism by which such a right is vindicated is not itself relevant unless there is in substance a diminution in the effectiveness of its delivery by virtue of some element pertaining to the method of its delivery. The fact that the Scheme is not on a statutory footing or that it has features which are different from those of the statutory scheme cannot provide Mr. O’Connor with a legitimate basis for complaint. Uniformity in the method of the delivery of legal representation is not what is required. The State has a discretion as to how it will meet its constitutional obligations to provide legal representation for those entitled to it.
28. In order for Mr. O’Connor to succeed in his claim, which is one based upon an alleged invidious discrimination, he would have to be in a position to establish by evidence that the Scheme provides a less effective method of vindicating his right to legal representation when compared to that which would be provided to him under the 1962 Act.
29. There was no evidence led in the High Court to establish that the Scheme, as a matter of substance, is any less effective in vindicating the rights of an individual served with an EAW than is the statutory legal aid scheme provided under the 1962 Act. There was no evidence to suggest that persons in Mr. O’Connor’s position ever had difficulty obtaining legal representation from either solicitors or barristers. Indeed, he did not seek to avail of the Scheme himself. Neither was there any evidence, for example, to demonstrate that the quality of the lawyers willing to accept instructions under the Scheme, on the basis that they would only have recourse to the Scheme for the purposes of their fees, were any less capable than those available to provide legal representation under the statutory legal aid scheme. Neither, was any evidence lead to prove that any lawyer had ever refused to accept instructions for a person against whom a EWA had issued on the basis that they had concerns that they might not be paid at the end of the process because it would be left to the judge’s discretion as to whether or not to make the recommendation required to support the payment of their fees.
30. Accordingly, even accepting Hogan J.’s analysis of the differences between the Scheme and the statutory legal aid scheme provided for under the 1962 Act, I am not satisfied that Mr. O’Connor has demonstrated that the 2003 Act, because it does not provide him with a statutory scheme of legal fails to vindicate his equality rights under Article 40.1. That this is so is principally because he has failed to establish that a person facing surrender under the 2003 Act is provided with a materially less advantageous system of legal representation because it is provided under the Scheme rather than under the statutory scheme available to individuals such as those whose surrender is sought under the 2006 Act.
31. Finally, it is probably apposite to take judicial notice of the fact that the Attorney General’s Scheme is the method whereby the constitutional right to legal representation is provided for many classes of litigants. For example, legal representation for many custody related judicial reviews, which are of enormous import to those whose interests are at stake, is provided through the scheme. The statutory scheme is not available to those wishing to pursue claims of this type. Nonetheless, such proceedings are regularly pursued with the benefit of expert legal assistance provided through the Scheme.
32. Accordingly, I am satisfied that once effective legal assistance is available, be that by way of a statutory scheme or a non statutory scheme such as the Attorney General’s Scheme, the precise method whereby that assistance is delivered is immaterial.
33. Legal assistance of such nature was available to Mr O’Connor from the outset of these EAW proceedings had he chosen to avail of it. Accordingly, I am not satisfied that he has made out any claim that the defendants have failed to vindicate his equality rights guaranteed by Article 40.1 of the Constitution.
34. For all of these reasons I would decline the declaratory relief sought and would dismiss the appeal.
MJE v L
[2011] IEHC 248
JUDGMENT of Mr. Justice Edwards delivered on the 22nd day of June, 2011
Introduction
The respondent in these proceedings (and the applicant/moving party in the present motion) is the subject of a European arrest warrant issued by the Republic of Poland on the 27th of August, 2008. The warrant was endorsed for execution by the High Court in this jurisdiction on the 21st of November, 2008. The respondent was arrested in August, 2010, and brought before the High Court in accordance with s. 13 of the European Arrest Warrant Act 2003, as amended, (hereinafter referred to as “the Act of 2003”).
The respondent is wanted to serve a composite sentence of two years and six months imprisonment imposed on him by a District Court in Poland on the 10th of October, 2005, for two offences corresponding in this jurisdiction to the offences of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001 and assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997, respectively. The matter proceeded in due course to a s.16 hearing and on the 25th of May, 2006, this Court made an order pursuant to s.16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him.
Immediately following the making of the s.16 order, the respondent made an application for the postponement of his surrender on humanitarian grounds pursuant to s. 18(1) and (2) of the Act of 2003. As important legal issues were raised in the course of submissions made on both sides, the Court saw fit to reserve judgment until today’s date.
The evidential basis for the application
The evidential basis for the application comprises the averments contained in an affidavit sworn by the respondent on the 27th of October, 2010, and material exhibited therewith; as well as the contents of an affidavit sworn on the respondent’s behalf by his solicitor, Cahir O’Higgins, on the 18th of May, 2011, exhibiting medical reports and correspondence relating to the respondent’s daughter, N.
The relevant portion of the respondent’s own affidavit is contained in paragraphs 3 to 8 respectively, where he stated:-
“3. I … am a citizen of Poland. I was sentenced by the District Court … on 18th (sic) October, 2005, to a term of imprisonment of two years and six months for two offences which were committed on 4th February, 2001. The sentence was postponed on that date and on 6th December, 2005, and then on the 29th June, 2006, by the District Court …, until the 29th December, 2006, because of my daughter N.’s health problems.
4. N. was born on the 2nd of January, 2004. She had very serious heart complications and was kept in hospital and then transferred to a children’s hospital ….
5. In 2006 I desperately needed to earn money to provide from my daughter and my wife, R. N. was in hospital …, and my wife had to pay for travel, accommodation and medication expenses. I left Poland on 8th September, 2006, and came to Ireland in order to see if I could find work. I did find work and I sent money back to N. and my wife. I worked as a steel fixer for a company manufacturing concrete walls …, from September to November, 2006. From January, 2007, I worked for five months delivering leaflets and flyers for an advertising business all over the country. From May to December, 2007, I worked for a road construction company …. From January, 2008, to the present I have worked … as a butcher … although I am currently on sick leave because of my mental health. My wife and daughter joined me in Ireland on 20th September, 2008.
6. N. has several medical conditions, including a heart condition. She has regular checkups …. She is due for an appointment there in April, 2011. She has learning difficulties, and requires special education provision. She becomes ‘hyper-emotional’ and is very attached to me and she would be devastated if I am separated from her. She needs an operation on her left eye, which will be carried out in (Ireland), and she has a problem with her leg, and requires special shoes. Doctors in Ireland have commented that this condition was not being properly treated in Poland.
7. I and my family have no home to return to in Poland. I regard it as a crisis for my family if they have to return to Poland because I have to serve my prison sentence. We have no house in Poland. My mother is deceased and I have no contact with my father. My wife’s father is deceased and her mother is in her sixties and frail and unable to offer help to us. She is from northern Poland … a very poor village (there). I believe that if my daughter lived there and needed emergency treatment she would be unable to obtain it speedily. I believe that the standard of medical treatment, and education, is better for N. in Ireland than in Poland. My wife and I have a younger daughter, L., who was born on 6th July, 2009, in (Ireland) and we want to bring up our children here.
8. I am suffering from depression, and am currently on sick leave from work and on medication. My doctor arranged for me to see a psychiatrist. I beg to refer to a copy of his medical report upon which marked with ‘A’ I have endorsed my name prior to the swearing hereof.”
The medical report exhibited with the affidavit is from the respondent’s g.p. who says that he has, inter alia, an “anxiety disorder”. He further comments:-
“Was referred to psychiatric service in August 2010. Psychiatrist (on the basis of referral) suggested to refer D. to neurologist first, as is no evidence of mania or psychosis.”
The relevant portion of the affidavit of the 18th of May, 2011, sworn by the respondent’s solicitor, Cahir O’Higgins, is contained in paragraphs 3 to 6 respectively, where he states:-
“3. …. . I beg to refer to a letter from his family doctor, dated the 14th of March 2011, upon which marked with ‘A’ I have indorsed my name prior to the swearing hereof, which confirms that his daughter, N., has a number of medical conditions of a serious nature and is in the care of three consultant paediatric specialists, and has developmental delay and is due to receive the support of a child psychologist and physiotherapy.
4. The respondent has instructed me today that N. is currently attending (a hospital) for physiotherapy treatment.
5. In respect of the respondent, I beg to refer to a letter from (a doctor), dated 15th February, 2011, and a letter from the respondent’s family doctor dated 14th March 2011, upon which marked with ‘B’ I have indorsed my name prior to the swearing hereof. The letters confirm that the respondent is receiving treatment at (a) psychiatric clinic of … for mental health conditions. The respondent has informed me today that these conditions are continuing and that he is still receiving treatment for them.
6. The respondent instructs that he and his wife are desperate to avoid any disruption to N.’s treatment regime in Ireland. She is in need of physical and psychological treatment, and the respondent instructs that, as he stated in his affidavit, his daughter relies on him greatly and will be devastated if he is removed from her.”
The Court has considered carefully the medical reports exhibited marked ‘A’ and ‘B’, respectively, by Mr O’Higgins. He has fairly summarised and accurately characterised these reports, and it is not necessary to quote them in full for the purpose of this judgment. It will suffice to set out the list of N.’s various physical and psychological conditions as stated in the report exhibited marked “A”. These are stated to be:
1. Congenital heart disease (involving coarctation of the aorta and hypoplasia of the pulmonary trunk), for which she has had multiple surgeries;
2. Strabismus, again for which she has had surgery;
3. Squint of left eye;
4. Talipes;
5. Developmental delay (attention, concentration, behavioural difficulties);
6. Eczema;
7. Renal failure in the past;
8. Chronic lung disease in first year of life;
9. Persistent productive cough.
The relevant statutory provisions
The relevant statutory provisions are provided in s.18(1) and (2), respectively, of the Act of 2003, and are in the following terms:-
“18.—(1) The High Court may, if satisfied that circumstances exist that would warrant the postponement, on humanitarian grounds, of the surrender to the issuing state of a person to whom an order under section 15 or 16 applies, direct that the person’s surrender be postponed until such date as the High Court states that, in its opinion, those circumstances no longer exist.
(2) Without prejudice to the generality of subsection (1), circumstances to which that paragraph applies include a manifest danger to the life or health of the person concerned likely to be occasioned by his or her surrender to the issuing state in accordance with section 15 (5) or 16(5).”
These provisions were intended to implement Article 23(4) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) which is in the following terms:-
“The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed.”
Previous consideration of the relevant statutory provisions by this Court
The only case, in so far as this Court is aware or has been able to ascertain, in which the statutory provisions in question have received any judicial consideration is the case of Minister for Justice, Equality & Law Reform v Adam (No 2) [2011] IEHC 87, (Unreported, High Court, Edwards J., 10th March, 2011), a case in which the respondent sought a postponement under s.18(3) of the Act of 2003 in circumstances where a district judge had adjourned domestic proceedings then also pending against the respondent for some months to enable him to make a “poor box” contribution and thereby possibly avoid a prison sentence on the domestic matter or alternatively be dealt with more leniently than he otherwise might. In the course of my judgment in that case, which was primarily concerned with s. 18(3), I made the following remarks obiter concerning s.18 (1) and (2) of the Act of 2003:
“….the Court notes that both the Act (in s. 18(1) & s. 18 (2), and the underlying Framework Decision in Article 23(4), make specific alternative provisions for a possible temporary postponement on humanitarian grounds but the relevant provisions have not been invoked by the respondent in this case. Moreover, the Court is by no means convinced that the hampering of the respondent’s ability to make a poor box contribution; and, indirectly, of persuading the District Judge to apply s.1 (1) of the Probation of Offenders Act, 1907, alternatively of persuading the District Judge to impose a more lenient sentence than he might otherwise do, could provide a basis for seeking a postponement on humanitarian grounds. Whilst the terms of s. 18(2) are expressed to be without prejudice to the generality of s. 18 (1), Article 23(4) of the Framework Decision, which these provisions were intended to implement, speaks of such postponement arising “exceptionally” and for “serious” humanitarian reasons such as danger to the requested person’s life or health. In the present case, any potential prejudice might be to the character or good name of the requested person, and/or possibly to his liberty. However, if such prejudice were to arise it would be in accordance with law, which requires, inter alia, that any sentence that might be imposed should be proportionate to the admitted crime. The Court considers it doubtful in such circumstances that any such prejudice could be characterised as giving rise to humanitarian considerations, much less serious considerations of that sort.”
The respondent’s submissions
Counsel for the respondent, Mr Michael Lynn B.L., has submitted that in the particular circumstances of this case both Article 8 of the European Convention on Human Rights (hereinafter referred to as “the Convention”), and Article 24 of the Charter of Fundamental Rights of the European Union (O.J. 30.3. 2010 – 2010/C83/02 [EN C83/389]) (hereinafter referred to as “the Charter”), are engaged and he seeks to rely on both in support of his application for a postponement of his client’s surrender on humanitarian grounds. In particular he contends that this Court, in considering the question of a possible postponement, should regard the best interests of the respondent’s daughter, N., as a primary consideration.
While acknowledging the terms of Article 23(4) of the Framework Decision, he urges that the Framework Decision is not directly effective and that there is no need to have recourse to it where the domestic implementing legislation is clear in its own terms. He contends that his client is entitled to rely upon, and the Court should in the first instance have regard to, the plain terms of s.18 (1) and (2) of the Act of 2003 which, he submits: (i) refers only to humanitarian considerations (and thereby perhaps allows for postponement in a wider range of circumstances than the underlying Article of the Framework Decision which speaks of “serious” humanitarian considerations) and (ii) admits of the taking of a wider view than that which the Court has previously indicated was its view in its obiter remarks in Adam (No 2). He urges that the Court should take a wider view than it did in Minister for Justice, Equality & Law Reform v Adam (No 2) [2011] IEHC 87, (Unreported, High Court, Edwards J., 10th March, 2011) and construe the s. 18(1) and (2) provisions in conformity both with Article 8 of the Convention which guarantees respect for family life, and with Article 24 (and in particular sub article 2 thereof) of the Charter which mandates that “in all actions relating to children … the child’s best interests must be a primary consideration”.
It was further submitted that while in Minister for Justice Equality & Law Reform v Bednarczyk [2011] IEHC 136 (Unreported, High Court, Edwards J., 5th April, 2011), this Court had rejected an argument that it was required in the extradition context to have regard to the “best interests” of a child who might potentially be affected by the Court’s decision as the primary or paramount consideration, the argument in that case had not been based on Article 24 of the Charter. Rather, the Court’s decision was based upon the fact that the respondent in that case was inappropriately relying upon Article 3(1) of the United Nations Convention on the Rights of the Child which the Court considered the respondent could not directly rely upon, because Articles 29(3) and (6) of the Constitution have been interpreted as precluding the Irish Courts from giving effect to an international agreement if it is contrary to domestic law or grants rights or imposes obligations additional to those of domestic law; In re Ó’ Laighléis [1960] I.R. 93. It was urged that in the present case the Court should revisit the issue in the light of Article 24 of the Charter, and counsel sought to nuance the argument slightly. He conceded that the best interests of an affected child could never be “the” primary or paramount consideration in extradition matters, but submits that nonetheless the Court is required by the Charter to regard it as “a” primary consideration. The Court considers that a serious issue has been raised in regard to the status of Article 24 of the Charter and I will return to it later in this judgment.
When pressed by the Court concerning how long a postponement the respondent was looking for, counsel stated that 6 weeks was being sought “in the first instance” (the Court’s emphasis). This would be to facilitate the psychological assessment which N. is due to undergo imminently, and the preparation of a report based on that assessment. He urged that this postponement was required both because it is in N.’s best interests, and also out of respect for the family life of the respondent, his spouse and children. It was submitted that in circumstances where the Court is disposed to surrender the respondent to Poland, the family as a whole cannot be expected to make a decision on possible relocation to Poland without having available to it the essential information that the pending psychological assessment would provide, particularly in terms of knowing what best to do in all their interests, and especially in the interests of N. who has a range of physical and psychological conditions. Further, as N. and her father have a particular bond, such that she is likely to be distraught upon their enforced separation, it is desirable and in her best interests that she should not be subjected to that trauma until her psychological assessment has been completed. However, counsel would not discount the possibility that an application for a further postponement might be made when the psychological assessment was to hand, depending on what it contained.
The applicant’s submissions
Counsel for the applicant in the proceedings (and respondent to the present motion), Mr Tony McGillicuddy B.L., submits that the argument being made is close to an argument that the respondent should not be surrendered at all on Article 8 grounds, and he says that the Court should not be asked to deal with an Article 8 proportionality argument by the “back door”. In fairness to counsel for the respondent, he rejects this and in doing so has conceded that the bar has been set so high with respect to any possible non-surrender on Article 8 grounds that he could never have hoped to resist his client’s surrender on that basis, and he stresses that he has not heretofore, and is not now, seeking to do that. However, he believes that Article 8 is nonetheless engaged in terms of his application for a six week postponement of his client’s surrender on humanitarian grounds.
It has been further submitted by counsel for the applicant that even if the Court was to accept that Article 8 is engaged, the evidence in the case does not meet the threshold for putting the Court on enquiry. He says that both the Act and the Framework Decision are clear. Postponement can only be temporary. It can only be for a short time and it can only be granted for humanitarian reasons. Moreover, the Framework Decision makes it clear that these must be serious humanitarian reasons, and he points to the fact that the same example is given both in s. 18(2) of the Act of 2003, and in Article 23(4) of the Framework Decision, namely that the surrender would manifestly endanger the requested person’s life or health. It was further submitted that the example given relates to circumstances directly affecting the person facing surrender, rather than a third party such as a spouse or child, and that it is by no means clear that a postponement can be sought in the interests of a third party.
Counsel for the applicant has pointed to an initial reluctance on the respondent’s side to specify the length of the postponement being requested. The Court is asked to note that it was only when pressed on this, both by counsel for the applicant and the Court, that a period of six weeks was committed to by counsel for the respondent. Moreover, the Court is asked to note that counsel for the respondent is not foreclosing on the possibility of an extension being sought to any postponement that might initially be granted, or on the further possibility of a fresh application being made on different grounds when the report of the awaited psychological assessment is to hand. It is urged that the high water mark of the respondent’s case is that the child and father have a particular bond, and that the child will be distressed if he is surrendered. However, there is no medical evidence that it would be contrary to N.’s physical or psychological health to surrender the respondent immediately, or that the child’s pending psychological assessment would be prejudiced by her father’s immediate surrender. While the applicant accepts that it may be distressing and inconvenient for the respondent’s family if he is surrendered immediately, he contends that the breaking of, or suspension of, or abrogation of, family bonds is an inevitable consequence of surrender and imprisonment. It was submitted that the respondent has not demonstrated for what humanitarian reasons a postponement is required. He has not shown how it would be inhumane to either him personally or to his family if he is surrendered immediately. There is only the respondent’s own assertion that his immediate surrender would have grave consequences for him and his family, and in particular, adverse health consequences for N. There is no medical evidence to support it.
The applicant does not accept, for reasons that the Court will elaborate on in a separate subsection to this part of this judgment, that the Charter can be relied upon directly by the respondent, or that the Court is bound to have regard to Article 24(2) in considering the respondent’s postponement application. However, he contends that it is unnecessary in any event for the respondent to seek to have recourse to the Charter because it is accepted by the applicant that in any case in which Article 8 is engaged, and in which a child might be affected by the Court’s decision, the jurisprudence of the ECtHR indicates that the best interests principle must be taken into account as “a” primary consideration (though not as “the” primary or paramount consideration as was urged by the respondent in Bednarczyk). Specifically, in Üner v The Netherlands (2006) 45 EHRR 421, the ECtHR identified the best interests principle as a factor to be taken into account whenever a Court is engaged in conducting the proportionality exercise that it is required to conduct where Article 8 is engaged and a child is involved. However, this concession is made without prejudice to the applicant’s argument that while in extradition matters the best interests of affected children are “a primary consideration” they cannot generally override the public interest in effective extradition procedures.
Reliance on the Charter of Fundamental Rights
Notwithstanding the applicant’s stated views to the contrary, counsel for the respondent has argued strenuously that the Charter can be relied upon by a person in the position of the respondent in proceedings such as these. He argues that it is directly applicable and is part of domestic law where, as he puts it, “a member state is engaged in European Union legal activity”.
In seeking to rely on the Charter, the respondent points to the fact that post the enactment and coming into force of the Lisbon Treaty, Article 6(1) of the Treaty on European Union (hereinafter TEU) provides:-
“The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.”
Counsel for the respondent seeks to rely in particular on Article 24 of the Charter which deals with the rights of the child and provides:-
“1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
Counsel for the respondent argues that since Article 24 of the Charter, and in particular sub-article 2 thereof, is directly applicable, the requirement that “in all actions relating to children … the child’s best interests must be a primary consideration” must be regarded as part of our domestic law for purposes of the application of the European Arrest Warrant Act 2003.
The respondent’s basis for contending that the Charter is directly applicable and can be relied upon before this Court is based upon a particular interpretation of the provisions of Articles 51 and 52 respectively of the Charter, having regard to an explanatory memorandum prepared under the authority of the Praesidium of the Convention which drafted the Charter and promulgated in connection therewith. This explanatory memorandum is entitled Explanations Relating to the Charter of Fundamental Rights (O.J. 14.12.2007 – 2007/C303/02 [EN C303/17]) (hereinafter referred to for convenience as the “explanations document”). Both sides in this case accept that the said explanations document is a legal instrument to which regard may be had.
Article 51 of the Charter deals with its scope, whereas Article 52 deals more specifically with the scope of guaranteed rights and freedoms recognised by the Charter. Both of these are contained within the general provisions in Title VII of the Charter. It will be recalled that Art 6(1) TEU requires the Charter to be “interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter that set out the sources of those provisions.” It is therefore appropriate at this point to set out both the terms of Articles 51 and 52 respectively, and the “explanations” contained in the explanations document relating to those provisions.
Article 51 is in the following terms:-
“Scope
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.
2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.”
The explanations relating to Article 51 contained in the explanations document state:-
“Explanation on Article 51 — Field of application
The aim of Article 51 is to determine the scope of the Charter. It seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity. This provision was drafted in keeping with Article 6(2) of the Treaty on European Union, which required the Union to respect fundamental rights, and with the mandate issued by the Cologne European Council. The term ‘institutions’ is enshrined in the Treaties. The expression ‘bodies, offices and agencies’ is commonly used in the Treaties to refer to all the authorities set up by the Treaties or by secondary legislation (see, e.g., Articles 15 or 16 of the Treaty on the Functioning of the European Union).
As regards the Member States, it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, Case C-260/89 ERT [1991] ECR I-2925; judgment of 18 December 1997, Case C-309/96 Annibaldi [1997] ECR I-7493). The Court of Justice confirmed this case-law in the following terms: ‘In addition, it should be remembered that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules …’ (judgment of 13 April 2000, Case C-292/97 [2000] ECR I-2737, paragraph 37 of the grounds). Of course this rule, as enshrined in this Charter, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law.
Paragraph 2, together with the second sentence of paragraph 1, confirms that the Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Union. Explicit mention is made here of the logical consequences of the principle of subsidiarity and of the fact that the Union only has those powers which have been conferred upon it. The fundamental rights as guaranteed in the Union do not have any effect other than in the context of the powers determined by the Treaties. Consequently, an obligation, pursuant to the second sentence of paragraph 1, for the Union’s institutions to promote principles laid down in the Charter may arise only within the limits of these same powers.
Paragraph 2 also confirms that the Charter may not have the effect of extending the field of application of Union law beyond the powers of the Union as established in the Treaties. The Court of Justice has already established this rule with respect to the fundamental rights recognised as part of Union law (judgment of 17 February 1998, C-249/96 Grant [1998] ECR I-621, paragraph 45 of the grounds). In accordance with this rule, it goes without saying that the reference to the Charter in Article 6 of the Treaty on European Union cannot be understood as extending by itself the range of Member State action considered to be ‘implementation of Union law’ (within the meaning of paragraph 1 and the above-mentioned case-law).”
Article 52 is in the following terms:-
“Scope and interpretation of rights and principles
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.
5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.
6. Full account shall be taken of national laws and practices as specified in this Charter.
7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.”
There are lengthy explanations relating to Article 52 contained in the explanations document. For the purpose of this judgment only those relating to sub-article 5 are directly relevant. These explanations state:-
“Explanation on Article 52 — Scope and interpretation of rights and principles”
“Paragraph 5 clarifies the distinction between ‘rights’ and ‘principles’ set out in the Charter. According to that distinction, subjective rights shall be respected, whereas principles shall be observed (Article 51(1)). Principles may be implemented through legislative or executive acts (adopted by the Union in accordance with its powers, and by the Member States only when they implement Union law); accordingly, they become significant for the Courts only when such acts are interpreted or reviewed. They do not however give rise to direct claims for positive action by the Union’s institutions or Member States authorities. This is consistent both with case-law of the Court of Justice (cf. notably case-law on the ‘precautionary principle’ in Article 191(2) of the Treaty on the Functioning of the European Union: judgment of the CFI of 11 September 2002, Case T-13/99 Pfizer v Council, with numerous references to earlier case-law; and a series of judgments on Article 33 (ex-39) on the principles of agricultural law, e.g. judgment of the Court of Justice in Case 265/85 Van den Berg [1987] ECR 1155: scrutiny of the principle of market stabilisation and of reasonable expectations) and with the approach of the Member States’ constitutional systems to ‘principles’, particularly in the field of social law. For illustration, examples for principles, recognised in the Charter include e.g. Articles 25, 26 and 37. In some cases, an Article of the Charter may contain both elements of a right and of a principle, e.g. Articles 23, 33 and 34.”
Counsel for the respondent has submitted that the Charter makes a clear distinction between rights and principles. He argues that the Charter, interpreted in accordance with the explanations document, envisages that “rights” must at all times be respected whenever Member States authorities are acting in the scope of EU law, and may indeed give rise to direct claims for positive action by the relevant authorities. Conversely, principles are not required to be respected but rather to be observed by implementation through legislative or executive acts. Accordingly, unlike rights which must always be respected when Member States authorities are acting in the scope of EU law, principles become significant for the Courts only when legislative or executive acts are interpreted or reviewed, and they cannot give rise to direct claims for positive action.
Counsel for the respondent submits that in the present case this Court is a relevant Member State authority and, further, that in seeking to operate and implement the Act of 2003, which in turn was enacted to transpose and give effect to the Framework Decision, this Court is acting in the scope of EU law. He argues that on that basis, and because in the respondent’s submission Article 24 of the Charter creates rights, this Court is bound in considering the respondent’s postponement application under s. 18 (1) and (2) of the Act of 2003 to regard the best interests of the respondent’s daughter, N., as being a primary consideration.
In support of his contention that Article 24 creates rights as opposed to establishing principles, counsel for the respondent again calls in aid the explanations document which states with respect to Article 24:-
“Explanation on Article 24 — The rights of the child
This Article is based on the New York Convention on the Rights of the Child signed on 20 November 1989 and ratified by all the Member States, particularly Articles 3, 9, 12 and 13 thereof.
Paragraph 3 takes account of the fact that, as part of the establishment of an area of freedom, security and justice, the legislation of the Union on civil matters having cross-border implications, for which Article 81 of the Treaty on the Functioning of the European Union confers power, may include notably visiting rights ensuring that children can maintain on a regular basis a personal and direct contact with both of their parents.”
Reliance is placed on the fact that Article 3.1 of the United Nations Convention on the Rights of the Child (hereinafter the UNCRC) requires that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This Court has previously stated in Minister for Justice Equality & Law Reform v Bednarczyk [2011] IEHC 136 (Unreported, High Court, Edwards J., 5th April, 2011), that Article 3.1 cannot be relied upon directly before the Irish Courts (unlike how it was successfully relied upon before the UK Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148) because it must be regarded as imposing an obligation greater than that imposed by domestic law. However, the Charter was not relied upon, and this Court was not referred to it, by the respondent in Bednarczyk. Accordingly, if Article 24 of the Charter, which is based, inter alia, on Article 3 of the UNCRC, and in particular Article 24(2) thereof, creates rights which this Court is bound to respect, and is to be regarded as directly applicable and as part of our domestic law, then the net effect of this is that Article 3.1 of the UNCRC has in fact been incorporated into Irish domestic law. The Court is urged to so hold.
In response to these arguments, counsel for the applicant has submitted that the Court should look askance at counsel for the respondent’s submissions because what his client is in fact seeking is an indefinite postponement which, if granted, would de facto constitute a refusal to surrender, and that therefore his application must be regarded as an attempt by the back door to resist surrender at all but under the guise of a postponement application.
As to the merits of the argument based on the Charter, counsel for the applicant says that his opponent is misreading the Charter and the consequences of the Charter. He argues that the Charter applies to EU institutions and member states in implementing EU law. He says the Charter can only be forward looking and cannot apply to the Framework Decision as it was not in force either on the 13th of June, 2002, when the Framework Decision was adopted by the Council, or when the Act of 2003 was enacted by the Oireachtas to transpose and give effect to that Framework Decision. The version of the Charter adopted and now in force was only adopted in 2007 and, indeed, it is only since the enactment, ratification and coming into force of the Lisbon Treaty that Article 6 TEU reflects that the European Union recognises the rights, freedoms and principles set out in the Charter and states that the Charter is to have the same legal value as the Treaties.
Counsel for the applicant has submitted that this Court in assessing any impact the Charter might have has to look at the EU law in question and the Irish law implementing that, i.e., the Act of 2003.
The EU law in question is contained in the Framework Decision. The Framework Decision itself expresses, in recital no. 12, that the Framework Decision “respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union.” Counsel for the applicant points out that this is a reference to the Charter as it was expressed in 2000, not the version currently recognised and afforded the same legal status as the Treaties by the current (post Lisbon Treaty) Article 6 TEU. The Framework Decision outlines that “(n)othing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.” It further outlines that the Framework Decision “does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.” In recital no. 13 it is stated that “(n)o person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”, while recital no. 14 deals with the protection of individuals with regard to automatic processing of personal data.
The main obligation under the Framework Decision is that set out in Article 1(2) thereof, i.e. that “Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision”, and Articles 3 and 4, respectively, then deal with the grounds for mandatory non-execution of the European arrest warrant and the grounds for optional non-execution of the European arrest warrant. Article 5 then sets out the guarantees to be given by the issuing Member State in particular cases.
Counsel for the applicant has submitted that the EU law, as set out in the Framework Decision, the essentials of which have just been rehearsed, is not directly effective and requires to be implemented. That has been done in Ireland through the enactment by the Oireachtas of the Act of 2003. The Act of 2003 contains provisions, notably in s.37, where a person’s surrender can be refused on constitutional grounds or on Convention grounds, and then for certain specified reasons. There are further matters outlined in Part 3 of the Act, such as s. 45, concerning trial in absentia, but in terms of fundamental rights concerns, and how they are incorporated within the Act of 2003, and how they are to be dealt with, the main provision is s.37. Counsel submits that that is how the state has implemented the EU law in question and it is within that framework that this Court must address any issues raised relating to fundamental rights, including any matters relating to the welfare of children arising from any prima facie obligation on the Court to surrender a respondent.
Counsel for the applicant urges that even if the Charter is capable of being relied upon by the respondent in so far as rights identified or enumerated within it are concerned, this Court can, and should, reject the submission made on behalf of the respondent that Article 24(2) identifies or enumerates any “right” as opposed to a “principle”. He submits that while arguably Article 24(1) might be concerned with rights, Article 24(2) clearly sets out a principle – what is widely known as “the best interests principle”, and that Article 52(5) of the Charter, when read in conjunction with the explanations document, makes it abundantly clear that, while such a principle should be observed by the Union’s institutions or by Member States authorities when implementing EU law through legislative or executive acts, it cannot give rise to direct claims for positive action by the Union’s institutions or by Member State authorities such as this Court. The Union’s institutions have not made any attempt in the Framework Decision to incorporate the “best interests principle” nor has Ireland, as a relevant Member State seeking to implement EU law i.e., the Framework Decision, sought to do so. Accordingly, the “best interests principle” is not cognisable by this Court on the basis of Article 24(2) of the Charter.
Counsel for the applicant has further submitted that if the Court finds against him on this aspect of his submission, and considers that Article 24(2) of the Charter does identify or enumerate a “right” as opposed to a “principle”, the Court should take the view that it can only be invoked in relation to matters such as child care or adoption litigation, and hold that it is not meant to impact on surrender applications under the Framework Decision in circumstances where the terms of the Framework Decision are clear and it has not been amended to take account of the putative right in question.
Consideration of the “best interests” of children in the extradition context
Counsel for the applicant has further commended to this Court that the correct approach for it to adopt in considering in any case whether or not to refuse a surrender on fundamental rights grounds is that set forth in the English Supreme Court case of Norris v. Government of the United States of America (No 2) [2010] 2 AC 487. He submits that as the application presently before the Court, which is dressed up as a short postponement application, but which in his characterisation is “in reality an attempt by the back door to prevent surrender on fundamental rights grounds”, the Court should also bear in mind and apply the Norris principles in dealing with this application. Further, he points to two recent decisions of the English High Court in which it is made clear that the decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148, to which this Court has earlier alluded, and which was an immigration case, does not change the considerations that were held to apply in Norris in circumstances where there is a child that might be affected by the Court’s decision. The two recent decisions referred to are B v The District Courts in Trutnov and Liberec (Czech Judicial Authorities) [2011] EWHC 963 (Admin) and R (H.H.) & Anor v the Deputy Prosecutor of the Italian Republic, Genoa (Italian Judicial Authorities) & Ors [2011] EWHC 1145 (Admin). These decisions suggest that while in extradition matters the best interests of affected children are “a primary consideration” they cannot generally override the public interest in effective extradition procedures. Counsel for the applicant has further submitted that principles set forth in these English decisions, i.e. Norris, B and HH respectively, are consistent with, and reconcilable with, the previous decision of this Court in Minister for Justice, Equality & Law Reform v F.L.J. (Unreported, High Court, Edwards J., 8th April, 2011).
In Norris, the Government of the United States of America sought the extradition of the defendant, a British citizen, and a former chief executive officer of a leading international manufacturer of carbon products, to stand trial on indictment in respect of four alleged offences, including one offence of conspiracy with other producers of carbon products to operate a price fixing arrangement or cartel in several countries including the United States, and three offences of conspiracy to obstruct justice by witness tampering and by the alteration, destruction, mutilation and/or concealment of evidence. In the course of the extradition proceedings, which were commenced before a district judge, the defendant was ultimately successful, following a series of appeals which went all the way to the House of Lords, in his objection to being extradited on the price fixing count on the grounds that correspondence could not be demonstrated with an offence under the law of England and Wales. Following the House of Lords decision, the case was remitted to the district judge with regard to outstanding issues. It was then unsuccessfully argued before the district judge that the ill-health of the defendant and his wife, who were then aged 65 and 64 respectively, their mutual dependency based on a long and close marriage, and the effect that his extradition would have on his wife’s depressive illness, made the interference with their rights under Article 8 of the European Convention on Human Rights disproportionate to the public interest in his extradition for charges subsidiary to the main cartel charge. Having rejected the defendant’s Article 8 objections, the district judge ordered the defendant’s extradition. The defendant then sought a judicial review of the district judge’s decision in the High Court and a Divisional Court of the Queen’s Bench Division rejected his appeal. He then further appealed to the Supreme Court but this appeal was also dismissed.
The principal judgment on behalf of the UK Supreme Court was delivered by Lord Phillips, with whom all the other members of the Court (Lord Judge, Lord Hope, Lord Rodger, Baroness Hale, Lord Brown, Lord Mance, Lord Collins and Lord Kerr) agreed. At paras. 25 and 26 of the official report of his judgment, in the course of reviewing the Strasbourg jurisprudence on proportionality, he states the following:-
“25. The principles to be applied when considering the proportionality of deportation that would interfere with article 8 family rights were first enunciated by the court in Boultif v Switzerland (2001) 33 EHRR 1179. The applicant, an Algerian, had married a Swiss citizen and established a home in Switzerland. He then committed a robbery for which he received a two year prison sentence. After he had come out of prison the Swiss authorities refused to renew his residence permit. This meant that he would have to return to Algeria whither, the court found, his wife could not reasonably be expected to follow him. The court laid down the following principles, at paras 46-48:
‘46. The court recalls that it is for the contracting states to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Dalia v France (1998) 33 EHRR 625, para 52, and Mehemi v France (1997) 30 EHRR 739, para 34).
‘47. Accordingly, the court’s task consists in ascertaining whether the refusal to renew the applicant’s residence permit in the circumstances struck a fair balance between the relevant interests, namely the applicant’s right to respect for his family life, on the one hand, and the prevention of disorder and crime, on the other.
‘48. The court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other’s country of origin. It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society. In assessing the relevant criteria in such a case, the court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant’s conduct in that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple’s family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.’
Applying these principles, the court found violation of article 8.
26. In Üner v The Netherlands (2006) 45 EHRR 421 the Grand Chamber confirmed the principles laid down in Boultif, adding to these at para 58:-
‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of social, cultural and family ties with the host country and with the country of destination’.”
According to counsel for the applicant, in the case presently before the Court, the passages just cited clearly demonstrate that it is well established that it is appropriate for a Court, in considering the proportionality of a proposed measure, to take into account relevant interests including the “best interests and well-being of children”. In that regard, counsel for the applicant reiterates his contention that it is unnecessary in the circumstances of this case for the respondent to seek to have recourse to Article 24(2) of the Charter.
Returning to the judgment of Lord Phillips, at para. 51 et seq he further states:-
“51 I agree that there can be no absolute rule that any interference with article 8 rights as a consequence of extradition will be proportionate. The public interest in extradition none the less weighs very heavily indeed. In Wellington [2009] AC 335 the majority of the House of Lords held that the public interest in extradition carries special weight where article 3 is engaged in a foreign case. I am in no doubt that the same is true when considering the interference that extradition will cause in a domestic case to article 8 rights enjoyed within the jurisdiction of the requested state. It is certainly not right to equate extradition with expulsion or deportation in this context.
52 It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity. It is instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (i) the arrest of a suspect, (ii) his detention, where necessary, pending trial, and (iii) his detention while serving his sentence if convicted. Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under article 8(2). In practice it is only in the most exceptional circumstances that a defendant would consider even asserting his article 8 rights by way of challenge to remand in custody or imprisonment: see R (P) v Secretary of State of the Home Department [2001] 1 WLR 2002, para 79, for discussion of such circumstances. Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate.
53 Massey v United Kingdom (Application No 14399/02) (unreported) given 8 April 2003 illustrates this proposition. The applicant complained, inter alia, that criminal proceedings and a sentence of six years’ imprisonment constituted an unwarranted interference with his family life and his children’s right to a father. In ruling the complaint inadmissible, the court held, at para 2:
‘The court recalls that article 8(2) permits interference with an individual’s right to respect for his private and family life in certain circumstances. The court considers that the bringing of criminal proceedings and the imposition of a punishment following conviction fall within these exceptions since they are in accordance with the law and pursue … legitimate aims, namely, public safety, the prevention of disorder and crime and protection of the rights and freedoms of others. The court therefore concludes that the prosecution and imprisonment of the applicant does not raise any issues under article 8 of the Convention.’
54 There is an analogy between the coercion involved in extradition and the coercion involved in remanding in custody a prisoner reasonably suspected of wishing to abscond. In either case the coercion is necessary to ensure that the suspect stands his trial. Each is likely to involve a serious interference with article 8 rights. The dislocation of family life that will frequently follow extradition will not necessarily be more significant, or even as significant, as the dislocation of family life of the defendant who is remanded in custody. It seems to me that, until recently, it has also been treated as axiomatic that the dislocation to family life that normally follows extradition as a matter of course is proportionate. This perhaps explains why we have been referred to no reported case, whether at Strasbourg or in this jurisdiction, where extradition has been refused because of the interference that it would cause to family life.
55 I reject Mr Sumption’s contention that it is wrong for the court, when approaching proportionality, to apply a “categorical assumption” about the importance of extradition in general. Such an assumption is an essential element in the task of weighing, on the one hand, the public interest in extradition against, on the other hand, its effects on individual human rights. This is not to say that the latter can never prevail. It does mean, however, that the interference with human rights will have to be extremely serious if the public interest is to be outweighed.
56 The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. That, no doubt, is what the commission had in mind in Launder 25 EHRR CD 67, 73 when it stated that it was only in exceptional circumstances that extradition would be an unjustified or disproportionate interference with the right to respect for family life. I can see no reason why the district judge should not, when considering a challenge to extradition founded on article 8, explain his rejection of such a challenge, where appropriate, by remarking that there was nothing out of the ordinary or exceptional in the consequences that extradition would have for the family life of the person resisting extradition. “Exceptional circumstances” is a phrase that says little about the nature of the circumstances. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition”.
In further support of the approach advocated by Lord Phillips, the Court has also been referred to the relatively short additional judgment of Lord Collins, in Norris, where he states at para. 130 of the report:-
“130 It is inherent in the extradition of a citizen of the requested state that it is almost certain to involve an interference with family life, and that it is why it has been said that it is only in exceptional circumstances that extradition to face trial for serious offences in the requesting state would be an unjustified or disproportionate interference with family life: Launder v United Kingdom (1997) 25 EHRR CD 67, para 3; and cf Raidl v Austria (1995) 20 EHRR CD 114, para 123. See also R (Warren) v Secretary of State for the Home Department [2003] EWHC 1177 (Admin) at [40]-[41]. This approach has been confirmed in the recent admissibility decision in King v United Kingdom (Application No 9742/07) (unreported) given 26 January 2010”.
Counsel for the applicant in the present case submits that the effect of the judgment in Norris was to set the bar extremely high with respect to possible non-surrender or non-extradition of a person on the grounds of an unjustified or disproportionate interference with family life. The UK Supreme Court found that in the circumstances of that case the required threshold for intervention had not been met. Moreover, counsel emphasises that although the Supreme Court was not dealing in that particular case with a child, the decision was rendered in circumstances where it was aware that the best interests principle is something that is incorporated in the Article 8 case law.
In so far as the decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148 is concerned, in which Baroness Hale discussed at some length the best interests principle, and on whose conclusions the respondent in Bednarzyk placed some reliance, counsel for the applicant in the present case stresses that it was an immigration case, and not an extradition case, and that it has since been held in two extradition cases decided by the English High Court that it is not to be regarded as having any implications for, or as changing the emphasis of, the principles set forth in Norris.
In R (H.H.) & Anor v the Deputy Prosecutor of the Italian Republic, Genoa (Italian Judicial Authority) & Ors [2011] EWHC 1145 (Admin), the Italian authorities sought the extradition of both the mother (H.H) and father (P.H) of three children for drugs offences. A district judge ordered the H’s extradition and they sought to judicially review his decision in the High Court. There were a number of issues in the case, not all of which are germane to the issues with which this Court is concerned. However, one of the issues concerned whether the appellants’ right to respect for family life guaranteed by Article 8 of the European Convention on Human Rights (“ECHR”) would be violated by their extradition. The focus of the Article 8 claim was the plight of the H’s three young children in the event that their parents were extradited. It was claimed that to do so would be disproportionate since that would effectively render the children de facto orphans and result in them being adopted or placed in care.
The case was heard by a Divisional Court of the Queen’s Bench Division. Giving the judgment on behalf of the Court, Laws L.J reviewed the evidence which was undisputed and stark. It was to the effect that there was no guarantee that the children, if adopted or fostered, or if one or more were adopted and the other or others fostered, would be kept together. Moreover, separation from both parents would have a profound effect on the children’s physical and emotional health and might lead to multiple problems for the children in the future.
In considering the Article 8 issue, Laws L.J. stated at para. 49 of his judgment that:-
“49. The question here is not the resolution of a disputed factual issue but the correct application of legal principle. In particular, I must consider what if any is the impact of the decision of the Supreme Court in ZH (Tanzania) [2011] UKSC 4; [2011] 2WLR 148 upon its earlier judgment in Norris v USA [2010] UKSC 9; [2010] 2WLR 572”.
Having reviewed the judgments in Norris in great detail, Laws L.J. then turned to a consideration of the decision in ZH, and says the following at paras. 55 et seq of his judgment:-
“55. ZH (Tanzania) was not an extradition case. The appellant, a failed asylum-seeker, faced removal from this country to Tanzania. She had two children, aged 12 and 9 at the relevant time, who were British citizens. They had lived here with their mother all their lives, mostly at the same address. She was estranged from their father though he remained in contact with the children. She had an “appalling” immigration history, having put forward fraudulent claims for asylum. At length, however, the Secretary of State conceded that it would be disproportionate to remove the appellant, but was “understandably concerned about the general principles which the Border Agency and appellate authorities should apply” (Baroness Hale, paragraph 13). The specific question for the court’s consideration was formulated by Lady Hale at paragraph 1:
“[I]n what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?”
56. At paragraph 23 Lady Hale observed:
“For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3(1) of the UNCRC [sc. the United Nations Convention on the Rights of the Child 1989]:
‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’
This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Borders, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions ‘are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.’”
Lady Hale indicated (paragraph 25) that the Strasbourg court expects national authorities “to apply article 3(1) of UNCRC and treat the best interests of a child as ‘a primary consideration’”. She proceeded (paragraph 26) to cite Australian authority in line with this, and emphasised (paragraphs 30 ff) the “particular importance” of nationality “in assessing the best interests of any child”. The core of her reasoning, if I may say so, is to be found in paragraph 33:
“We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. On the facts, it is as least as strong a case as Edore v Secretary of State for the Home Department [2003] 1 WLR 2979, where Simon Brown LJ held that ‘there really is only room for one view’ (para 26). In those circumstances, the Secretary of State was clearly right to concede that there could be only one answer.”
57. Lord Brown and Lord Mance agreed with Lady Hale. Lord Hope and Lord Kerr gave concurring judgments. Lord Kerr said this:
“46. It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.””
Responding to a submission by counsel on behalf of the children to the effect that the reasoning in ZH applies with no less force to an extradition case such as the one before him, and also to a submission by counsel on behalf of the wife to the effect that Norris must be regarded as modified by ZH, Laws L.J stated at paras. 59 to 63 of his judgment that:-
“59 I consider it impossible to suppose that the court in ZH intended to depart from any of the reasoning in Norris. There is no reference whatever in the former case to the latter, nor indeed to extradition itself. And as I have said, the court in Norris sat nine Justices. The decision in Norris must in my judgment be taken as determinative of the law relating to Article 8 claims by prospective extraditees, no less since ZH than before. That is not to say, however, that ZH has no impact upon the application of the principles in Norris. The proposition that “the best interests of the child shall be a primary consideration” (UNCRC Article 3(1)) is of general application. But the indefinite article – “a primary consideration” – is significant. As Lady Hale stated in ZH (paragraph 25), “‘a primary consideration’ is not the same as ‘the primary consideration’, still less as ‘the paramount consideration’”.
60. Accordingly, while the best interests of affected children are “a primary consideration” in extradition cases, they cannot generally override the public interest in effective extradition procedures. There has to be an “exceptionally compelling feature” (Norris paragraphs 56, 91), giving rise to “the gravest effects of interference with family life” (paragraph 82). That is not ipso facto supplied by an extradition’s adverse consequences for the extraditee’s children. In fairness I did not understand Mr Keith or Mr Wise to submit otherwise.
61. The search for what may in truth amount to such an exceptionally compelling feature is, I think, illuminated by these two following considerations. First, it is clear that Lord Phillips in Norris did not regard extradition on the one hand and expulsion or deportation on the other as being in the same case: see paragraph 60. The implication is that if an extradition is to be condemned as disproportionate, the factor or factors relied on to that end must be substantially more pressing than in a deportation case.
62. The second consideration, which tends to explain the first, consists in the differences between the nature of the public interest in extradition and that in expulsion or deportation. Mr Hardy submitted that expulsion and deportation are matters only of domestic policy, whereas extradition promotes a universal public benefit. This latter aspect reflects what was said by Lord Phillips at paragraph 52 in Norris (I have already set it out): “It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity.” I would venture also to cite this passage from my own judgment in Norris in this court (quoted by Lord Phillips at paragraph 48):
“21… [T]he learning, here and in Strasbourg, shows that the public interest in giving effect to bilateral extradition arrangements possesses especially pressing force because of its potency (a) in the fight against increasingly globalised crime, (b) in the denial of safe havens for criminals, and (c) in the general benefits of concrete co-operation between States in an important common cause.”
These citations describe the importance of the extradition process. But they do not articulate a qualitative difference between deportation and extradition such as might explain why, if it be so, it takes a more pressing Article 8 case to override the latter than the former. Mr Hardy’s contrast between what is domestic and what is international (or universal) will not on its own suffice.
63. In my judgment the answer is suggested by the following contrasting features of immigration and extradition policy. Good immigration policy (it will generally be recognised) is not all one way; that is to say, it will by no means always be fulfilled by the expulsion of the alien in question. The striking of reasonable balances is an inherent feature of the policy itself, certainly as it is reflected in the current Immigration Rules promulgated by the Secretary of State. But this is not true of the extradition regime. The public interest in extradition is systematically served by the extradition’s being carried into effect, subject to the proper procedures. Where that does not happen, it is not because the striking of reasonable balances is an inherent feature of the policy. It is because, and only because, there exists in the particular case an “exceptionally compelling feature” giving rise to “the gravest effects of interference with family life”, which is quite a different matter. As Lord Hope said in Norris (paragraph 91) “[t]he public interest in giving effect to a request for extradition is a constant factor”; and he referred (ibid.) to “the extra compelling element that marks the given case out from the generality””.
The Divisional Court ultimately concluded that the proposed extradition of the H’s would not be disproportionate. It held that where an extraditee is a parent with young children, their family life will inevitably be disrupted; indeed it may be very gravely disrupted, by the extradition. The Court further acknowledged that the extradition of both parents would certainly make it worse. It was a matter of degree. The Court concluded, however, that there was no feature specific to this family which constituted so pressing and powerful a consideration as to justify the discharge of the parents or either of them on Article 8 grounds.
In B v The District Courts in Trutnov and Liberec (Czech Judicial Authorities) [2011] EWHC 963 (Admin) there was again an Article 8 issue in the context of the proposed extradition of a single mother of four children, aged 9, 5, 3 and 2 years, respectively. In the course of considering this issue in the context of an appeal against the order of a district judge ordering the mother’s extradition, Silber J, sitting in the Queens Bench Division, addressed the question at para. 44 of the judgment as follows: “[h]as ZH (Tanzania) v Secretary of State affected the article 8 rights of a person who has young children and who is the subject of an extradition request?” In reviewing the judgment of Baroness Hale in ZH, he noted that she drew a distinction between two types of cases, namely:-
“a) Those in which long-term residents of the United Kingdom have committed a crime in which case the proportionality exercise would be subject to consideration of the interest of the prevention of disorder and crime. The relevant factors would include those set out in Boultif v Switzerland (2001) 33 EHRR 1179 9 [17]; and
b) Cases which arise in the ordinary immigration context where a person is to be removed because he or she has no right to be or to remain in this country and different factors would be applicable”.
Silber J. comments, at para. 51, that “[w]hat is significant is that a third class of case dealing with extradition was not considered and that that is not surprising because that was not the issue which arose on that appeal”. Further, he noted that it was “clear that many important cases on the impact of article 8 on extradition cases and in particular the landmark case of Norris were not considered or apparently not even referred to”. Again he felt, at para. 52, that was “not surprising because earlier in the year in which the Supreme Court had heard ZH, they had decided Norris in which Lord Phillips of Worth Matravers PSC had explained in respect of a submission that when considering the impact of article 8, the court should adopt a similar approach in extradition cases such as that to be adopted in the case of deportation or expulsion”. Philips L.J. held, as cited by Silber J. at para. 52, that: –
“’The public interest in extraditing a person to be tried for an alleged crime is of a different order from the public interest in deporting or removing from this country an alien who has been convicted of a crime and who has served his sentence for it, or whose presence here is for some other reason not acceptable.”
and that:-
“…It is certainly not right to equate extradition with expulsion or deportation in this context’”.
After quoting more extensively from the judgment of Lord Phillips in Norris, including certain of the passages quoted earlier in this judgment, Silber J. remarked at paras. 55 and 56 of his judgment that:
“55. It is clear that the approach of the courts to article 8 rights has to be radically different in extradition cases from what it is in deportation or immigration cases because of the very important obligation of the State to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries. This is fortified by the Council Framework Decision of 13 June 2002, which led to the Act being passed. The purpose of the Framework Decision is to impose on Member States, such as the United Kingdom an obligation under article 1(2) to execute any EAW on the basis of mutual obligations.
56. This factor relating to the obligation of the State to return fugitives from justice is not present in deportation cases or immigration cases. Therefore decisions on article 8 rights in those areas are of no real relevance in extradition cases where the need to extradite fugitives from justices almost invariably out weighs the article 8 rights of the person sought to be extradited. This leads to the inevitable conclusion that ZH does not alter the existing law in relation to article 8 claims barring extradition orders to the effect that unlike in cases of deportation and challenges to removal by those who have no right to remain here, the circumstances in which it would not be proportionate to remove a person subject to an extradition request for Article 8 reasons would be rare because of the high threshold set in Norris as I have explained in paragraphs 52 to 54 above”.
Ultimately, the Court in B concluded that in the circumstances of that case, the evidence adduced by the appellant failed to show that it would not be proportionate to extradite her in the light of the high threshold set in Norris.
The Court’s Decision
In the Court’s view, it is important not to lose sight of the fact that this is an application for postponement of surrender on humanitarian grounds rather than an application for surrender itself. While the Court notes the applicant’s concern that this is in reality an attempt to prevent surrender on Article 8 grounds by the “back door”, the Court is prepared to accept the assurances of counsel for the respondent at face value and will regard the present application solely as being for a short temporary postponement of six weeks on humanitarian grounds.
In that regard, the first requirement is that the evidence must establish the existence of humanitarian grounds. Two issues arise with respect to this aspect of the matter: (a) what is meant by “humanitarian” grounds, and (b) whether they must relate to the proposed extraditee personally, or can they also relate to a third party such as, in this case, the respondent’s daughter?
The word “humanitarian” appears in both the Act of 2003 and in the underlying Framework Decision. Neither of these documents attaches any special meaning to it, and so the word should be accorded its ordinary meaning. It is used as an adjective and it is used in conjunction with the word “grounds” in the Act of 2003, and “reasons” in the Framework Decision. Accordingly, it imports something about those grounds or reasons that is to do with, or is a feature of, the humanity or human nature of the subject person, whether that be the proposed extraditee or another person. When used as an adjective, the word “humanitarian” most commonly connotes having concern for or helping to improve the welfare and happiness of people; alternatively it pertains to the saving of human lives or to the alleviation of human suffering.
The common example given both in s.18 (2) of the Act of 2003, and in Article 23(4) of the Framework Decision is danger to the person’s life or health. The Court takes the point that this is an indicative example only and is not intended to be definitive. However, it makes it clear that what is contemplated is a prejudice that impinges upon some fundamental personal right of the subject individual to the extent of threatening his or her core well being, or perhaps very existence as a human being, such as a threat to life, or a threat to physical or mental health, or to bodily integrity, or a threat to that individual’s dignity as a human person. These are again examples and do not constitute an exhaustive list. The important feature is that the prejudice, whatever it is, must impinge directly on some aspect of the individual’s human condition or identity. The Court can see no reason in principle, particularly having regard to Article 8 of the Convention, why the prejudice in question must be personal to the proposed extraditee. It seems to the Court, that where Article 8 is engaged, a potential prejudice of a humanitarian nature to a spouse or child or other family member of the proposed extraditee could be relied upon. However, an alleged failure to respect family life is unlikely in itself to be sufficient in that regard. It would require something more, such as a serious specific prejudice to an individual family member, for that failure to have the necessary “humanitarian” quality about it.
Where humanitarian grounds are shown to exist, there is then a second requirement that must also be satisfied. It must be demonstrated that a postponement “is warranted” in all the circumstances on the humanitarian grounds identified. This brings in the question of proportionality. While the Act of 2003 does not establish a gravity threshold in terms of the humanitarian grounds identified, the Framework Decision speaks of “serious humanitarian reasons”. In the Court’s view, in a postponement application, just as in surrender applications, regard must be had to the public interest in extradition as well as to the predicament of the individual (or persons) who is (are) at risk of prejudice. The Court agrees with the approach advocated in Norris, and in HH and B, respectively, and in particular, endorses the views of Laws L.J. in HH that the public interest in extradition is systematically served by the extradition being carried into effect, subject to the proper procedures. Of course, it is not all about the public interest but the Court is satisfied that before postponement of an extradition would be “warranted”, it would have to be demonstrated that the humanitarian grounds relied upon were so grave and of such a serious nature, and that the desirability of avoiding the apprehended prejudice was so compelling, as to render postponement the only effective option.
The Court, in making an assessment as to whether a postponement is warranted, in circumstances where Article 8 is engaged and prejudice to a child of the proposed extraditee is relied upon as constituting the humanitarian grounds, is entitled, and is indeed obliged having regard to the jurisprudence of the ECtHR, to have regard to the best interests of the child as “a” primary consideration. The Court agrees with counsel for the applicant that it is not necessary for the respondent to rely on the Charter in this regard.
While the Charter has been relied upon by the respondent it is not necessary for the purpose of giving judgment in this case for the Court to decide definitively whether or not it may be relied upon in the European arrest warrant context, and if so in what circumstances it may be relied upon. The Court will not decide a moot. That said, and subject to the possibility of being persuaded otherwise after full argument in a future case in which the issue requires to be adjudicated on definitively, I see no reason at the present time to deviate from a provisional view which I have expressed previously in an obiter dictum in Minister for Justice, Equality and Law Reform v Adam (No 1) [2011] IEHC 68 (Unreported, High Court, Edwards J., 3rd March, 2011), that in an appropriate case (i.e., where a right is being relied upon rather than a principle) the Charter can be relied upon in the European arrest warrant context.
The Court holds its provisional view notwithstanding that the Charter must be regarded as forward looking and therefore did not apply at the time of the legislative implementation of the Framework Decision in terms of the enactment by the Oireachtas of the Act of 2003. However, the Court tends to agree with the respondent that in operating the Act of 2003 which incorporates the underlying Framework Decision, the Court, as a relevant Member State authority, is ostensibly acting within the scope of EU law. However, the Court also tends to agree with counsel for the applicant that Article 24(2) of the Charter contains an expression of principle rather than the enumeration of a right that can be relied upon directly. Be all of that as it may, these issues are academic in the circumstances of this case because under the Convention the Court is obliged in any event to have regard to the best interests principle.
As regards the best interests principle generally, the Court agrees entirely with counsel for the applicant that while in extradition matters the best interests of affected children are “a primary consideration” they cannot generally override the public interest in effective extradition procedures.
Turning then to the facts of the present case, the Court is not satisfied that in the circumstances of this case the initial threshold requirement of the establishment of humanitarian grounds is met, based on the anticipated prejudice to the health, particularly the emotional health, of the respondent’s daughter, N., if she is subjected to a sudden enforced separation from him in circumstances where she is asserted to be emotionally fragile and hyper-emotional and also suffers from other physical and mental adversities. While the Court accepts that N. has a variety of physical and mental health difficulties there is in fact no medical evidence at all to suggest that she will suffer aggravation of any of these difficulties if her father is surrendered. The Court only has the respondent’s unsupported assertion and belief in that regard. While it is undoubtedly the case that separation from her father consequent upon his surrender will be distressing for N., the evidence does not establish that it will cause any harm to her, in the sense of a medical pathology, either mentally or physically. While again, there may be great uncertainty in the minds of the respondent and his spouse and other family members concerning how best to care for N. in circumstances where the respondent is to be surrendered, and concerning whether some or all of the family should remain in Ireland in their own or in N.’s interests, none of these issues gives rise to concerns that could be characterised as humanitarian concerns. Even if that were not so, and humanitarian concerns were held to exist, they certainly do not exist at a level of gravity such that they would warrant a postponement in this case even for a short period of just six weeks.
In the circumstances the Court is not disposed to accede to the application for a postponement.
Rimsa v Governor of Cloverhill Prison
[2010] IESC 47
JUDGMENT of Murray C.J. delivered on the 28th day of July 2010
This judgment sets out the reason why at the hearing of the appeal in this matter, the Court ordered the release of the applicant pursuant to Article 40.4.2˚ on the grounds that it was not satisfied that his then detention in custody was in accordance with law. The appeal was against an order of the High Court refusing his application.
By order of the High Court dated 13th December, 2007, it was ordered, pursuant to s. 16 of the European Arrest Warrant Act 2003, as amended, (hereafter “the Act” or “the Act of 2003) that the applicant be surrendered to the authorities of the Republic of Latvia in respect of a criminal offence specified in a European arrest warrant seeking such surrender.
That order of the High Court which was addressed, inter alia, to the respondent, the Governor of Cloverhill Prison directed that the applicant be lodged in Cloverhill Prison and be detained there in custody for a period of not less than fifteen days from the date of the order “until the date of his delivery as aforesaid and for any further period as may be necessary under the law”. It was the detention on foot of the said order which the applicant contended was unlawful.
Section 16 of the Act of 2003
Section 16 of the Act of 2003 as amended by s. 76 of the Criminal Justice (Terrorist Offences) Act 2005 provides as follows:
16.— (1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9) the High Court may, upon such date as is fixed under section 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—
(a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,
(b) the European arrest warrant, or a facsimile or true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,
(c) where appropriate, an undertaking under section 45 or a facsimile or true copy thereof is provided to the court,
(d) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and
(e) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).
(2) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 14 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—
(a) the European arrest warrant and, where appropriate, an undertaking under section 45, or facsimile or true copies thereof are provided to the court,
(b) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,
(c) the High Court is not required, under section 21A, 22, 23 or 24 (inserted by sections 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the person under this Act, and
(d) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).
(2A) Where the High Court does not—
(a) make an order under subsection (1) on the date fixed under section 13, or
(b) make an order under subsection (2) on the date fixed under section 14,
it may remand the person before it in custody or on bail and, for those purposes, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence.
(3) An order under this section shall take effect upon the expiration of 15 days beginning on the date of the making of the order or such earlier date as the High Court, upon the request of the person to whom the order applies, directs.
(4) When making an order under this section the High Court shall also make an order committing the person to a prison (or if he or she is not more than 21 years of age, to a remand institution) there to remain pending his or her surrender in accordance with the order under this section, and shall inform the person—
(a) that he or she will not, without his or her consent, be surrendered to the issuing state, before the expiration of the period of 15 days specified in subsection (3), and
(b) of his or her right to make a complaint under Article 40.4.2° of the Constitution at any time before his or her surrender to the issuing state.
(5) Subject to subsection (6) and section 18, a person to whom an order for the time being in force under this section applies shall be surrendered to the issuing state not later than 10 days after—
(a) the order takes effect in accordance with subsection (3) (inserted by section 76 (d) of the Criminal Justice (Terrorist Offences) Act 2005),
or,
(b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state.
(6) Where a person makes a complaint under Article 40.4.2° of the Constitution, he or she shall not be surrendered to the issuing state while proceedings relating to the complaint are pending.
(7) A person (to whom an order for the time being in force under this section applies) who is not surrendered to the issuing state in accordance with subsection (5) shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless, upon such expiration, proceedings referred to in subsection (6) are pending.
(8) Where the High Court decides not to make an order under this section—
(a) it shall give reasons for its decision, and
(b) the person shall, subject to subsection (9), be released from custody.
(9) Subsections (7) and (8) shall not apply if—
(a) (i) the person has been sentenced to a term of imprisonment for an offence of which he or she was convicted in the State,
(ii) on the date on which he or she would, but for this subsection, be entitled to be released under subsection (7) or (8), all or part of the term of imprisonment remains unexpired, and
(iii) the person is required to serve all or part of the remainder of that term of imprisonment,
(b) (i) the person has been charged with or convicted of an offence in the State, and
(ii) on the date on which he or she would, but for this paragraph, be entitled to be released from custody under subsection (7) or (8), he or she is required to be in custody by virtue of having been remanded in custody pending his or her being tried, or the imposition of sentence, in respect of that offence.
(10) If the High Court has not, after the expiration of 60 days from the arrest of the person concerned under section 13 or 14, made an order under this section or section 15 , or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reasons therefor specified in the direction, and the Central Authority in the State shall comply with such direction.
(11) If the High Court has not, after the expiration of 90 days from the arrest of the person concerned under section 13 or 14, made an order under this section or section 15 , or has decided not to make an order under this section, it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reason therefor specified in the direction, and the Central Authority in the State shall comply with such direction.
(12) An appeal against an order under this section or a decision not to make such an order may be brought in the Supreme Court on a point of law only.
Background Circumstances
In accordance with s. 16(3) of the Act the order of the High Court for the applicant’s surrender was not to take effect before the expiration of a period of fifteen days after the making of the order. This was intended to facilitate, inter alia, an appeal from the High Court order. No appeal was lodged or other application made to a court during that period.
Accordingly the High Court order of 13th December, directing the applicant’s surrender to Latvia took effect fifteen days after that. The Irish and Latvian Central Authority proceeded on the basis that, having regard to s. 16(5) of the Act, the applicant’s surrender to the issuing state, Latvia, was required to take place not later than ten days after December 28th namely not later than the 7th January, 2008, unless para. (b) of s. 16(5) applied. No issue arises as to the relevant dates. As can be seen from that section (cited above), para. (b) means that surrender may be postponed by agreement to a date not later than ten days after “such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state.” In the event of such later date being duly agreed in accordance with the section, the section requires the surrender to be made not later than ten days after the newly agreed date.
In this case, if no agreement on a later date had been entered into pursuant to s. 16(5)(b) and surrender had not taken place before or on 7th January, 2008 s. 16(7) required the immediate release of the applicant, that date being the tenth day following the date on which the order for surrender was considered to take effect. There was no issue between the parties as to 7th January 2008 being the relevant date for this purpose.
In this particular case the Latvian Central Authority was notified on 13th December 2007 of the making of the order and of the period of fifteen days before which it would take effect. This was done by an official in the Department of Justice, Equality and Law Reform, acting as the Central Authority in the State.
By fax dated 28th December, 2007, the Department, again as the Central Authority in the State, reminded the Latvian Central Authority that the surrender of the applicant should take place within ten days of 28th December.
Again by fax dated 2nd January, 2008, the Department reminded the Latvian Central Authority that it should contact An Garda Siochána to make the necessary arrangements for the surrender of the applicant.
Despite the three communications between 13th December. 2007 and 2nd January, 2008, no response was received by the Central Authority in the State from the Latvian Central Authority.
On 3rd January 2008 the Department eventually sent an e-mail, marked urgent, to the Latvian Central Authority pointing out that the applicant, the subject of the order for surrender, “must now be collected by your Police Authorities by 07/01/2008”.
On the same date a response was received from the Latvian Central Authority which asserted, inter alia, that “due to national holidays (before New Year’s Eve and the following days), respective notification on granted surrender was received at this office only on 02.01.2008”. It went on to state that it would not be able “to collect the subject (with 7th January 2008 being the deadline) since there were tickets available for flights to Dublin only for 08, 09 and 10.01.2008”. The Latvian Central Authority indicated that for practical reasons, including the question of flight availability, it was not in a position to collect the applicant by 7th January 2008. The communication went on to state that a precise proposal for an alternative date would be communicated when it had exact flight details for arrival and departure. By e-mail dated 4th January 2008 the Department responded indicating that it had no objection to the extension of the deadline for the surrender of the applicant.
By e-mail dated the same date the Latvian Central Authority responded by stating that surrender could take place on 9th January, 2008, based on the availability of flights to and from Riga and Dublin.
The Department responded on the same date stating that the revised surrender date of 9th January was acceptable “to the Central Authority and An Garda Siochana”.
Before the surrender on the re-arranged date could take place the applicant obtained an order of the High Court directing an inquiry into the lawfulness of his detention pursuant to Article 40.4.2˚. He contended that his then detention was unlawful because of the failure of the State to release him from custody on the expiry of ten days from 28th December, 2007, the date on which the High Court order for his surrender took effect. It was also contended that the purported agreement between the two Central Authorities for surrender to take place at a later date was not a valid or lawful postponement of the surrender within the meaning of section 16(5)(b).
The hearing of the applicant’s application on the merits was held promptly and a judgment was delivered on 11th January, 2008. The Court dismissed the applicant’s application concluding that he was detained in accordance with law. The applicant appealed against that decision to this Court.
While that particular appeal was pending the applicant made a new and distinct application to the High Court for his release pursuant to Article 40.4.2˚ essentially on the grounds that s. 16(5)(b) of the Act of 2003 was unconstitutional. The High Court ruled that the said subsection was not invalid having regard to the provisions of the Constitution and that the applicant’s then detention was in accordance with law. The applicant also appealed against the decision of the High Court in that case but that appeal, which was not heard, would now appear to be moot.
High Court Judgment of 11th January 2008
For the purposes of the issues in this appeal there were two relevant issues decided by the High Court in this case: Rimsa v. Governor of Cloverhill Prison & the Minister for Justice, Equality and Law Reform [2008] IEHC 6, (Unreported, High Court, Hedigan J., 11th January, 2008).
In contending that the purported postponement was invalid as not complying with the provisions of s. 16(5)(b) the applicant had submitted that such postponement could only be agreed where it was “necessary” to do so and that in any event there were no reasonable grounds for such a postponement because there were seats available on the flights from Riga to Dublin on dates preceding the deadline date of 7th January. In those circumstances the Latvian authorities could, it was contended, readily have made arrangements for the surrender to be effected within the initial ten days envisaged by the Act. The applicant contended that para. (b) of s. 16(5) should be interpreted in the light of that portion of article 23(3) of the Council Framework Decision 2002/584/JHA of 13 June, 2002, on the European arrest warrant and the surrender procedures between Member States O.J.L 190/1 18.7.2002 (hereafter “the Framework Decision”) which only envisaged the postponement of a surrender beyond the initial period of ten days where surrender is “prevented by circumstances beyond the control of any of the member states”. So interpreted s. 16(5)(b) means that an agreement between the two authorities on a later date could only be entered into if it was necessitated by circumstances beyond the control of the two states concerned.
Having reviewed the evidence before him the learned trial judge concluded at p.4:-
“It seems reasonable to accept that during the new year holiday season seat availability might well be limited. I do accept this and, therefore, I accept there were grounds of necessity requiring the arranging of a later date.
Notwithstanding my finding in this regard, I do not think that s. 16(5) makes any requirement of necessity in order to ground an extension, although it is clear that the surrender should be effected as soon as possible. I do accept that the Framework Decision may be looked to in order to interpret the national legislation. To that extent paragraph 3 of Article 23 does provide that where the surrender of the requested person is prevented by circumstances beyond the control of any the Member States, there may be agreement on a new date and the surrender should take place within ten days of the new date. Nonetheless the national legislation does not make such a requirement of necessity. In any event, in the light of my finding above re availability of airline seats; there appears to have been an existence of such circumstances and, therefore, a necessity to postpone.”
The second issue relevant to this appeal and decided by the High Court relates to the argument made by the applicant, and referred to at p. 6 of the judgment of the learned High Court judge, to the effect that the Framework Decision has direct effect in certain circumstances which are present here. The basis on which that applicant had argued for direct effect in the High Court is not entirely clear. On those grounds, it was submitted that any agreement to postpone surrender to a later date must, as required by article 23 of the Framework Decision, be made between the judicial authorities of both the issuing state and the executing state and not, as provided in the Act of 2003, by the central authority in the State.
At p. 5 of his judgment the learned trial judge had noted that s. 16(5)(b) of the Act provides for a later date to be “agreed by the Central Authority in the State and the issuing state”. He added: “Thus, whilst that person in Ireland is the Minister for Justice, Equality & Law Reform, in relation to the issuing State no particular persons are specified.” He went on to note that it was clear from the documents before the Court that as a matter of fact it was the Central Authority of Latvia which entered into the agreement for the postponement of surrender with the Central Authority in Ireland.
In addressing the second issue referred to above the learned trial judge stated at p. 6:-
“In the first case, it seems clear to me that whereas the framework decision may well be referred to in order to clarify an ambiguity or assist in interpretation, it cannot be held to overrule the national legislation enacted to implement it. Article 34(2)(b) of the Treaty on European Union explicitly states that framework decisions shall not have direct effect.”
In this respect he cited from Denham J.’s judgment in Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518 at p. 521 where she stated:-
“Thus, the Council framework decision does not have direct effect and is not part of the domestic law of this State. It is binding on the State as to the result to be achieved. It promotes common action by the states of the European Union to advance approximation of the laws in the states on specific issues. It is left to the national authorities to choose the form and method of implementation.”
He also cited Fennelly J. in the same case where he stated at p. 547:-
“These courts are bound to apply the provisions of Acts of the Oireachtas the framework decision does not have direct effect. Where a provision of an Act of the Oireachtas conflicts directly with a provision of a framework decision, this court must give preference to the former. To do otherwise would, to cite the language of the Court of Justice Criminal Proceedings against Pupino (Case C-105/03) [2006] QB 83 be contra legem.”
The learned trial judge then concluded at p. 7:-
“In this case s. 16(5)(b) explicitly specifies that the agreement on a different date is made by the Central Authority in the State and the issuing State. To hold that the agreement had to be made between the judicial authorities of the two States would be contra legem.”
Having regard to the foregoing conclusions and his findings on other points not pursued in the appeal before this Court, the learned High Court judge refused the applicant’s application.
The Appeal
The applicant’s appeal to this Court against the findings of the High Court was confined to two essential grounds. The first ground which I propose to refer to is the submission of the applicant that his detention was unlawful because the State had not entered into a valid or lawful agreement for the postponement of his surrender; the agreement in question was made between the central authorities of the two states in breach of Article 23 of the Framework Decision which requires that it be entered into between the judicial authorities of the two states concerned. During the course of the argument counsel relied on s. 10 of the Act as requiring the State to comply with article 23 of the Framework Decision.
The State in its submissions acknowledged that the Act of 2003 may be interpreted in the light of the Framework Decision but that the Act cannot be given a meaning contra legem. The State also acknowledged that once the ten day period provided for in s. 16(5) had expired, there was a mandatory requirement that the person concerned be released. The issue was, however, it was submitted, the date from which the ten day period ran. In this case it was submitted that there had been an agreement duly entered into between the relevant authorities pursuant to s. 16(5)(b) of the Act postponing the date for surrender to a later date and that the ten day period ran from that date. In this case the agreed postponed date was the 9th January, 2008, and the ten days ran from that date. Accordingly, the High Court was correct in determining that the applicant was then in lawful detention. It was submitted that the Framework Decision, unlike a directive, does not have a direct effect and even if a statute is in conflict with the Framework Decision effect must be given to the statute. It was further submitted that s. 10 itself is a provision that is entirely general in nature and a harmonious interpretation of that section with the remaining sections of the Act “does not override the general presumption that an issuing state is complying with a Framework Decision.” It was further submitted that on the facts as found by Hedigan J., that the Framework Decision does not prohibit the surrender of the applicant. In this case it was submitted that s. 16(5)(b), so far as Ireland was concerned, required the Central Authority in the State to agree on the postponed date. It also provided for that agreement to be entered into with the issuing state and it was a matter for the issuing state to determine the authority which could enter into the agreement. Accordingly, it was submitted that the agreement to postpone the surrender of the applicant was entered into in accordance with s. 16(5)(b) and that was sufficient. Moreover, it was submitted that so far as article 23 is concerned the Oireachtas is entitled to allow some discretion to the issuing state as to what constitutes a “judicial authority”, so this phrase in the Framework Decision cannot be regarded as imposing a requirement that only a court or judge must discharge a particular function.
The other ground raised by the applicant in the appeal concerned his submissions that the learned trial judge erred in law in determining, on the basis of the evidence before him, that there were reasonable grounds justifying the authorities in question entering into an agreement to postpone the surrender. It was also submitted that s. 16, interpreted in the light of article 23, meant that there must be grounds which necessitated such an agreement for postponement being entered into and the learned trial judge was incorrect, on the evidence, in concluding that there were such grounds.
In the light of the conclusions which I have reached in relation to the ground first mentioned above, I do not think it is necessary to deal with this latter ground.
Decision
The Act of 2003 (as amended)
I think it is convenient at this point to cite again the most relevant subsection of s. 16 of the Act of 2003, as amended:-
“(5) Subject to subsection (6) and section 18 , a person to whom an order for the time being in force under this section applies shall be surrendered to the issuing state not later than 10 days after—
(a) the order takes effect in accordance with subsection (3) (inserted by section 76 (d) of the Criminal Justice (Terrorist Offences) Act 2005), or
(b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the issuing state.”
Neither subs. (6) nor s. 18 are relevant to the issue in this appeal.
Subsection (7) then goes on to provide that “a person … who is not surrendered to the issuing state in accordance with subsection (5) shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless, upon such expiration, proceedings referred to in subsection (6) are pending.”
The reference to subsection (6) is not relevant to the issue in this appeal.
Accordingly, once the period of ten days after the order for surrender taking effect has expired it is mandatory that the person the subject of the order for surrender be released from custody unless a later date for surrender, has, in the terms of para. (b), been “agreed by the Central Authority in the State and the issuing state.”
This section is clearly intended to give effect to article 23 of the Framework Decision although it departs from it in a fundamental respect.
The Framework Decision
The relevant provisions of article 23 of the Framework Decision provide as follows:-
“1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.
2. He or she shall be surrendered no later than ten days after the final decision on the execution of the European arrest warrant.
3. If the surrender of the requested person within the period laid down on paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event the surrender shall take place within 10 days of the new date thus agreed.” [Emphasis added]
It will be noted that the Framework Decision requires that any agreement to postpone a surrender after the initial ten days provided for, must be one which is agreed upon by the judicial authorities of both the executing state and the issuing state.
Thus, there is a clear and manifest conflict between article 23(3) of the Framework Decision and s. 16(5)(b) of the Act of 2003, in that the latter expressly permits and requires any agreement by an authority in the State on a new surrender date to be agreed by the Minister, as the Central Authority in the State and not the executing judicial authority.
Section 9 of the Act of 2003 specifies that the High Court is the executing judicial authority in the State. That authority was at no stage involved in agreeing the postponed date.
At this point I think it is appropriate to refer briefly to the role conferred on the Central Authority of the member states by the Framework Decision.
Recital 9 of the preamble to the Framework Decision states “The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance.” [Emphasis added]
In giving substantive effect to that recital, article 7 of the Framework Decision provides that “Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities.” Paragraph (2) of article 7 then goes on to provide that “A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority (ies) responsible for the administrative transmission and reception for European arrest warrants as well as for all other official correspondence relating thereto.”
It may be seen therefore that the Framework Decision intends that the role of any central authority, which, in contrast to a judicial authority referred to in the Framework Decision, belongs to the executive arm of a state, is confined to assisting the competent judicial authority and may also, if necessary, have responsibility for the administrative transmission and reception of European arrest warrants and related official correspondence.
This limitation placed on the role of the central authorities of the member states, in contrast to that of a judicial authority, is of importance when one considers an objective of the Framework Decision, as set out at recital (5) of the preamble, is the establishment of an area, within the Union, of freedom, security and justice which would lead to the abolition of extradition between member states and replace it “by a system of surrender between judicial authorities.” [Emphasis added]
Recital (6) of the Framework Decision speaks of the measure being “…the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation.”
Recital (8) states: “Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that the judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender”.
Thus, as has been pointed out in several judgments of this Court concerning the application of the Act of 2003, mutual cooperation and recognition of judicial decisions between judicial authorities of the member states are fundamental to the operation of the new system of “surrender” on foot of the European arrest warrant.
As Fennelly J., stated in Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518 at pp. 545-546:-
“The European arrest warrant is designed to operate fundamentally within a judicial process. This essential aspect of the procedure is not merely a recognition that its execution “must be subject to sufficient controls,” as is stated in the eighth recital but of the principle of legality. Persons cannot be surrendered compulsorily from one member state to another except in accordance with an open and transparent judicial procedure which guarantees respect for fundamental human rights.”
No doubt it is for the above considerations and with a view to achieving those objectives that any decision by agreement to delay the surrender of a requested person pursuant to judicial order beyond that ten day period, must, according to article 23, be made by the judicial authorities of the two states concerned and not by any administrative authority. By this means the Framework Decision ensures that any postponement of the date on which the surrender is due to take place on foot of a judicial order already made remains under judicial control. It also avoids any extension of a period of custody pending surrender being decided by the executive authorities as a form of administrative detention.
Interpretation of s. 16(5)(b) of the Act of 2003
The Act of 2003, as amended, is intended to give effect at national level to the Framework Decision. As this Court has frequently pointed out (see for example Minister for Justice v. Altaravicius [2006] 3 IR 148) when applying and interpreting the Act, the Court must do so in the light of the wording and purpose of the Framework Decision in accordance with the principles stated in Case C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I-5285. Like a Directive, a framework decision is a legislative act of the European Union but, unlike a directive, it cannot, by virtue of community law, have direct effect since article 34(2)(b) of the Treaty on the European Union expressly excludes such effect.
In the Pupino case the Court of Justice stated, at para. 43, “When applying national law, the national court that is called on to interpret it must do so so far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2)(b)(EU).”
That is a reference to that part of Article 34(2)(b) of the Treaty which provides that framework decisions “shall be binding on member states as to the result to be achieved …”
Moreover, in a reference to the principle of interpreting national law in conformity with a framework decision the Court of Justice stated, at para. 47:
“That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”
That interpretive principle only applies to the extent to which it is reasonably possible to interpret national legislation in conformity with the Framework Decision and does not require national legislation to be interpreted contra legem as the learned trial judge stated.
As pointed out earlier, it is manifest from the plain and express terms of article 23(3) of the Framework Decision that an agreement for postponement of the surrender to a later date must be agreed between (a) the executing judicial authority (which in this case is the High Court) and (b) the issuing judicial authority (which here is the “First Instance Riga Vidzeme Suburb Court of the Republic of Latvia,” as identified in the European arrest warrant in this case).
On the other hand, as has been seen, s. 16(5)(b) of the Act of 2003 excludes the High Court and permits a postponement of the date for surrender beyond the initial ten day period where that is agreed “(b) by the Central Authority in the State and the issuing state”. While that clearly requires the Central Authority in this State to enter into the agreement, the section does not specify what authority in the issuing state must agree to the postponement. It certainly does not specify that it be the Central Authority of the issuing state. The section does not, for example say ‘be agreed by the Central Authority in the State and in the issuing state’.
As the learned trial judge correctly pointed out at p. 5 of his judgment in relation to this phrase “Thus, whilst that person in Ireland is the Minister for Justice, Equality & Law Reform, in relation to the issuing State no particular persons are specified.”
Any such agreement obviously cannot be entered into in the abstract with the issuing state, but must be with some authority of that state.
In this regard the State had argued that para. (b) of , so far as Ireland was concerned, clearly authorises the Central Authority in the State to agree the new date for the surrender taking place and that to hold otherwise would be to interpret the section contra legem. I have no doubt that that is correct as concerns the Act.
The State went further and argued, that as concerns the authority in the issuing state with which the agreement may be entered into, the Oireachtas intended in s. 16(5)(b) that it would be a matter for the issuing state to decide which authority could enter into such an agreement. As a matter of fact the Latvian Central Authority decided to do so.
I do not consider that this attribution or presumption as to the intention of the Oireachtas is well-founded. On the contrary in my view the presumption must be that the section was intended to do what the Act expressly purports to do, namely to give effect to the terms of the Framework Decision.
The Act was adopted by the Oireachtas in order “to give effect to Council Framework Decision … on the European arrest warrant and the surrender procedures between Member States,” as is stated in the long title to the Act. That was the obligation of the State so as to ensure that surrender on foot of the European arrest warrant takes place in accordance with the Framework Decision.
The subsection in question falls to be interpreted as a matter of Irish law, in the light of the Framework Decision, and not as a matter of Latvian law. Its provisions involve the requirements of national law by which the State is bound.
Section 16(5)(b) of the Act of 2003 certainly does not specify the Central Authority or any authority in the issuing state as the authority with which an agreement for a postponed surrender date may be made. Faced with the silence of the subsection on that point the Central Authority here would have to ask itself whom does it contact in the issuing state where the question of agreeing a postponed surrender date arises. As a consequence of these proceedings the Court is required to answer that question. A reference to article 23 of the Framework Decision which s. 16 of the Act of 2003 seeks to implement, points to the judicial authority of the issuing state as being the only answer to that question. At the very least there is an ambiguity in the Act as to whether the reference to the “issuing state” permits the Central Authority in the State to enter into such an agreement with any authority in that state.
Any such an ambiguity, can, in my view, only be resolved by looking at the provisions of the framework decision in order to avoid, to the extent to which the language of the provision permits, “a result contrary to that envisaged by the framework decision” as stated at para. 47 in the Pupino case. Of course once one looks at the provisions of the Framework Decision, the manner in which that ambiguity should be resolved is obvious and permissible because of (i) the absence of a reference to any specified authority in the statutory provision and (ii) the express requirement in article 23(3) that any such agreement must be reached with the issuing judicial authority, which in this case is the Latvian Court referred to above. Such an interpretation also accords with the objectives of the Framework Decision namely a system of surrender, in lieu of extradition, designed to operate fundamentally within a judicial process, as Fennelly J., so aptly described it in the citation above from his judgment in Dundon v. Governor of Cloverhill Prison & the Minister for Justice, Equality and Law Reform.
Accordingly, even though para. (b) of s. 16(5) of the Act of 2003 expressly authorised the Central Authority in the State to reach an agreement on a new date for surrender, the agreement to do so could only be made by that Authority with the judicial authority of the issuing state, Latvia, as the subsection, properly construed, requires.
Since this was not done there was no valid or effective agreement to postpone the date of surrender within the meaning of section 16(5)(b).
It will be recalled that subs. (7) provides “a person … who is not surrendered to the issuing state in accordance with subsection (5) shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection unless, upon such expiration, proceedings referred to in subsection (6) are pending.” There were no such proceedings pending.
In reference to the time limit specified in s. 16 Geoghegan J., in Dundon at p. 539 cited with approval the following statement in the judgment of O’Sullivan J., in the latter’s High Court judgment in that case, where he stated:-
“The time limits specified for surrender after the final decision are in a different category, namely, they are mandatory in principle with the result that the requested person is intended to be released if they are not complied with.”
That dictum was obiter in that case but it is clearly a correct statement as to the meaning and effect of section 16(7).
There having been no valid agreement for the surrender of the applicant on a date after the expiry of the ten day period referred to he should have been released immediately on its expiry on 8th January, 2008.
Compliance by the State with the Framework Decision
There is however another argument advanced in relation to this issue. Section 10 of the Act of 2003, as amended, provides:
“10. – Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person –
…
that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.” [Emphasis added]
In this appeal the applicant submitted, relying on the case-law of this Court, that s. 10 rendered the Framework Decision directly applicably to arrest and surrender on foot of a European arrest warrant.
The words adopted by the Oireachtas in this section are very explicit. The Oireachtas expressly requires any arrest or surrender on foot of a European arrest warrant to be done not only in accordance with the Act but in accordance with the Framework Decision. It is of course entirely correct, as I have pointed out above, and this Court has pointed out many times, that a framework decision, unlike a directive in certain circumstances, is incapable, by virtue of community law, of having direct effect. That does not prevent the terms of the Framework Decision having an application at national level by virtue of an Act of the Oireachtas which the Act of 2003 does in a number of provisions of which s. 10 is one. Then its application is a consequence of national law not community law.
In Minister for Justice v. Altaravicius (cited above), I concluded that the section of the Act of 2003 relevant in that case was clear and did not require that a copy of the underlying domestic warrant be incorporated in the European arrest warrant or be attached to it, as the applicant in that case had contended. I then went on to state at p. 155:-
“If that was the only provision governing what a European arrest warrant should specify the issues in this matter might have been more readily resolved. Although the framework decision cannot, in terms of community law, have direct effect (since Article 34.2(b) of the Treaty on European Union expressly excludes such effect) the Oireachtas has chosen to give it, at least as regards a significant number of its provisions, such effect and make it directly applicable within the State. This is achieved, inter alia, by s. 10 of the Act of 2003 which provides that where a European Arrest Warrant has been duly issued in respect of a person “that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state”. The Act does not confine itself to including the framework decision in a schedule for reference purposes. There are other provisions of the Act of 2003 which require the courts to interpret and apply the framework decision directly but it is sufficient for present purposes to note that s. 10 means that in deciding on an application for a surrender pursuant to the terms of the Act of 2003 the court must apply both the provisions of the Act and the framework decision. It is, to say the least, an idiosyncratic method of legislating and likely to create ambiguity.” [Emphasis added]
Later in that judgment, at p. 156, I observed:- “Thus this Court is in the unusual position of having to interpret and apply Article 8 of the framework decision directly because of the effect given to it in national law by the Oireachtas and not by Community law”.
In Dundon v. Governor of Cloverhill Prison (cited above) Fenelly J. also alluded to the direct application of the Framework Decision as provided for, not by community law, but by the Act of 2003, as amended. At page 547 he stated:-
“[Section] 16(1)(e) envisages that a person will be surrendered provided that, inter alia, “the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto)…
“Insofar as the statutorily permitted grounds of refusal to surrender go beyond the terms of article 1(3) of the framework decision, but are covered by its recitals, they are, nonetheless, expressly invoked by s.16(1)(e) of the Act.
Fennelly J. then went on to point out that the courts are bound to apply the provisions of Acts of the Oireachtas and that where the provisions of an Act of the Oireachtas conflict directly with a provision of the Framework Decision, the court must give preference to the former which could not be interpreted contra legem. He then however added at p. 547:-
“The precise contours and limits of the rights that can be invoked under the Act will have to be explored as cases arise. I am merely concerned to show that, while the 60 day period does not confer protection on individuals, there are other features of the framework decision, at least as that measure is implemented in Irish law, upon which reliance may be placed by individuals in appropriate cases.”
So far as this case is concerned s. 10 of the Act of 2003 expressly requires that the surrender of the applicant in this case be done not only and in accordance with the Act but, additionally, in accordance with the Framework Decision. An individual must be able to rely on such provisions of the Framework Decision at least so far as that measure is made applicable in Irish law by the Act itself. If it were otherwise it would render the express reference to the Framework Decision in s. 10 meaningless.
Accordingly the applicant was entitled to place reliance, pursuant to s. 10, on the provisions of the Framework Decision which applied to his surrender to the issuing state, Latvia.
In my view article 23.3 of the Framework Decision is clearly an article which governs the surrender of a person on foot of a European arrest warrant. Accordingly by virtue of s. 10 of the Act of 2003 the Central Authority, in assisting and giving effect to the order of the court for surrender, was under a duty to do so in accordance with the provisions of the Framework Decision, as s. 10 expressly provides.
While the entering into an agreement with the Latvian authorities by the Central Authority in the State was in conformity with sections 16(5)(b) it was in direct conflict with the provision of Article 23.3 and therefore not in accordance with s. 10 of the Act of 2003.
It was rather belatedly accepted, during the course of the hearing, on behalf of the Central Authority, that there was a direct conflict between the provisions of article 23(3) and those of s. 16(5)(b) which failed to properly give effect to the Framework Decision. If the Central Authority had acknowledged from the outset that obvious conflict, this litigation would probably have been resolved at a much earlier stage or indeed rendered unnecessary.
It is also somewhat disconcerting that the Central Authority, even if it was of the view that it complied with the provisions of the statute, would nonetheless persist with the surrender pursuant to purely administrative arrangements which were manifestly in conflict with the legal obligations imposed on the State by virtue of article 23 of the Framework Decision.
The issues in this case have been complicated by the fact that the Act has been drafted in such a way as to apply two legal norms to the same matter. In this instance s. 16(5)(b) of the Act and article 23(3) of the Framework Decision are both applicable to the matter of agreeing a postponed surrender date. In Altaravicius the two applicable norms were s. 11 of the Act and article 8 of the Framework Decision. In that case I referred to this manner of legislating, in restrained language, as “idiosyncratic”. It is a most unsatisfactory way of legislating and I still consider that I am expressing myself in restrained terms. Framework decisions, as their name suggest, are legislative measures drafted in terms which range from the general to the specific, intended to be effectively implemented by each member state through its own national legislative measures as article 34(2((b) of the Treaty on European Union makes clear. In principle therefore it is national legislation which must give effect to the framework decision and achieve its objectives. That will usually mean that the provisions of the Acts of the Oireachtas themselves contain all the elements necessary to give effect to a framework decision. That would not preclude, however, an Act expressly requiring something to be done in accordance with a specific provision of a framework decision particularly, where such a provision is sufficiently clear and defined so as to be capable of being enforced or applied by a Court.
That might be done provided a section of the Act itself does not at the same time, and in parallel with the particular provision of the framework decision, purport to give effect to the latter provision so as to ensure that there is only one legal norm or provision applying to a particular matter.
What is unsatisfactory and has given rise to litigation, and is likely to do so in the future, is the fact that a provision of a framework decision and a specific section or part of an Act are both applicable to and govern a particular matter at the same time or in parallel.
Even where that is done so as to ensure that the provision in an Act is, at least on its face, in harmony with the applicable provision of the framework decision it means nonetheless that the Court has to interpret and apply two legal norms, as happened in the Altaravicius case.
Such a situation is then exacerbated of course when there is a manifest divergence between the express terms of an Act and the express terms of a framework decision, as has happened in this case.
For the reasons set out above, the Central Authority in the State in entering into the agreement to postpone the date for surrender, rather than taking steps to ensure that there was agreement between the two respective judicial authorities as article 23(3) of the Framework Decision requires, failed to act in accordance with the requirements of s. 10 of the Act. This is in addition to the earlier conclusion that the agreement was also contrary to s. 16(5)(b) insofar as it was made with the Central Authority of Latvia rather than the Latvian judicial authority as identified in the arrest warrant.
It is for the reasons set out in this judgment that I have concluded that there was no valid agreement to postpone the date of surrender pursuant to s. 16(5)(b) of the Act and that therefore the applicant’s continued detention was unlawful.
Balmer v Minister for Justice and Equality
[2016] IESC 25
Judgment of O’Donnell J. delivered on the 12th day of May 2016
1 Michael Anthony Balmer is a subject of the United Kingdom (“UK”) and of British nationality. He was born in 1951 and has resided and lived most of his life in the United Kingdom. On the 26th of July, 1983, when he was 32 years of age, he entered the house of a 62 year old female neighbour on false pretences, intending to steal car keys. His neighbour resisted and he attacked her, strangled her, and later sexually assaulted the body. On the 26th of March, 1984, he was convicted of murder at Exeter Crown Court and received a sentence of life imprisonment, which was the mandatory sentence for the offence of murder in the UK as indeed it is in Ireland.
2 While the terms and the precise statutory regime under the law of England and Wales may require further explanation, it is sufficient for present purposes to say that a “tariff” was fixed at the time of sentencing at 12 years initially, but was later extended by ministerial decision (which was then permissible under UK law) to 15 years. This was the minimum period a convicted person was required to serve before becoming eligible to be considered for parole. The tariff is said to reflect the “punitive” element of the sentence. After expiry of the tariff period, a life sentence prisoner can only be detained further if it is considered, originally by the Secretary of State for Home Affairs and subsequently by an independent parole board, that he or she poses a risk to the community if released. If it is considered that the convicted person does not pose such a risk, then he or she is released on licence which remains in force for the remainder of their life. The licence can be revoked at any time if it is considered necessary on public protection grounds. The process is subject to review at a number of points. An independent parole board chaired by a judge must consider the case and may refuse to reactivate the sentence. At that hearing, the prisoner has a right to be present, to be legally represented, and to call and question witnesses. When a life sentence prisoner (“lifer”) is released on licence and then recalled, he will then be given confirmation of the reasons for the recall, the information upon which the decision was based, and information as to how to make representations or to appeal to the parole board against the decision. During that process, however, the lifer is in custody.
3 In Mr. Balmer’s case, the extended tariff expired in 1999. Thereafter, he was detained for what was described as the ‘risk’ phase of the sentence. On the 2nd of March, 2011, presumably on the advice of the Parole Board, Mr. Balmer was released on licence on standard, although strict terms, including permanent residence at a specific location, and a requirement not to travel outside the United Kingdom without prior permission of a supervising officer. There was also a requirement to report on a regular basis, and to only undertake work with the permission and approval of the supervising officer, and further to notify the supervising officer of any developing relationships with women or men. Finally, there was a requirement not to enter a defined area in Exeter save for the purpose of transit. These conditions make it clear, therefore, that the life sentence continued to have effect for the life of the convicted person even when released into the community.
4 Just over one year later, on the 19th of March, 2012, Mr. Balmer’s licence was revoked. The revocation notice issued to him was a standard form containing a number of boxes identifying possible reasons for revocation. Two of these were ticked, namely “allegedly committed a further offence” and “poor behaviour”. The form also stated that the person would be given confirmation of the reasons why they had been recalled to prison, the information upon which the decision had been taken, and an explanation of how to make representation to the Parole Board against the decision to recall. No other information was contained in the notification of revocation.
5 Mr. Balmer is now resident in Ireland. It is not clear if Mr. Balmer travelled to Ireland before or after the revocation; nor is it clear whether entry into this jurisdiction was itself a breach of a term giving rise to revocation. It is also not suggested that Mr. Balmer has any other connection to this jurisdiction other than his arrival here at some point between his release on licence and his arrest. A European Arrest Warrant (“EAW”) was issued for his arrest on the 31st October, 2012, and endorsed for execution in this State on the 21st of November of that year. It was eventually executed in Cork on the 11th of June, 2013, and Mr. Balmer was brought before the High Court the following day. Since that date he has been remanded in custody, pending the outcome of these proceedings.
6 Mr. Balmer has objected to surrender on grounds that the surrender would constitute a contravention of the Irish Constitution insomuch as his return would be to serve a sentence which at this stage would be purely preventative in nature. It is also said that return would contravene the Constitution and be incompatible with the State’s obligation under the European Court of Human Rights in that the United Kingdom’s procedures did not provide for any hearing before a licence was revoked and a person recalled to custody.
7. The matter came before the High Court together with a similar case, which has now been discontinued due to the death of the respondent. Edwards J. delivered a lengthy judgment, relying on the majority judgment of this Court in Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637 (“Caffrey”) and distinguishing his own judgment in Minister for Justice and Equality v. Nolan [2012] IEHC 249 (“Nolan”) in rejecting the grounds of opposition and making an order for surrender. It may be useful at this point to deal briefly with the terms of the Caffrey and Nolan judgments, since they figured prominently in the argument in this case.
The decisions in Caffrey and Nolan
8 Caffrey dealt with a situation which might be considered to be the reverse of this case. There, a prisoner serving a life sentence in the United Kingdom regime, having had a tariff fixed by the presiding judge, sought and obtained transfer to Ireland under the provisions of the Transfer of Sentenced Persons Acts 1995-1997. He argued that he was entitled to be released once the UK tariff period had passed on the grounds that, as he contended, service of the sentence for the purposes of prevention was incompatible with Irish law. A minority of the Supreme Court (Murray and Fennelly JJ.) agreed. However, the majority (Denham C.J., Hardiman and Macken JJ. concurring) held that the sentence involved was a life sentence which was not incompatible with Irish law, and could accordingly be administered in accordance with Irish law. In essence, this was a conclusion that the concept in the practice in the UK of a tariff, and the punitive/risk distinctions, which did not exist in Irish law, were matters of administration of a life sentence and did not concern its legal nature.
9 Nolan was concerned with a separate development in sentencing law in the UK which had followed, it seems, from the manner in which the law on life sentences had developed. The fact that the decision on the length of time a prisoner spent in prison was made on an assessment of the risk that person posed to the community (or more accurately, the fact that release was only possible if it was considered the prisoner did not pose a risk), which was a consequence of the mandatory life sentence, was sought to be expanded into other areas of sentencing. In Nolan, the respondent had pleaded guilty to rape, and was sentenced in November, 2005. Earlier that year, a new and novel sentencing regime had been introduced for ‘serious cases’, which allowed the court in certain circumstances to impose a sentence of imprisonment for public protection (IPP). Such sentences were open-ended and depended on an assessment of future risk. The parole board could only direct release once an individual prisoner was considered no longer to be a risk to the public.
10 In Nolan, the respondent was sentenced to a two-and-a-half year determinate sentence followed by a sentence of indeterminate detention for protection of the public. The two-and-a-half year period was akin to the tariff insomuch as it set a minimum period before which it was not possible to make an application to the Parole Board. It does not appear that this was intended to represent the punitive element of a sentence, but merely to fix a minimum time before which it was not possible to make an application to the Parole Board. In Nolan, the respondent first made an application to the Parole Board after four-and-a-half years’ imprisonment, which was refused. After five years and three months, he absconded while on temporary release and fled to Ireland. In due course, an EAW was issued and his surrender was sought. The High Court (Edwards J.) refused to make an order for surrender, holding that the IPP sentence was a breach of a guarantee of liberty under the Irish Constitution. Having considered the judgment of this Court in Northamptonshire County Council v. B [2013] 4 I.R.662, Edwards J. concluded that, whereas a guarantee such as trial by jury under Article 38 was limited to the territorial limits of the State, a guarantee that a citizen should not be deprived of liberty save in due course of law was a personal right and a fundamental guarantee of universal application, and therefore applied to the applicant and to the sentencing process in the United Kingdom. He considered that the IPP sentence breached that principle because it permitted preventive detention and, accordingly, surrender was prohibited by s.37(1)(b) of the European Arrest Warrant Act 2003 which provides, so far as is relevant:
“A person shall not be surrendered under this Act if –
…
(b) his or her surrender would constitute a contravention of any provision of the Constitution …”
11 The decision in Nolan was appealed to the Supreme Court, where the decision was upheld, but on substantially narrower grounds. Matters had developed considerably in the United Kingdom since the introduction of the IPP sentence in 2005. By 2011, the Secretary of State for Justice had described the IPP as arbitrary and unfair, and a “stain on the system”. A system was introduced in place of IPP sentences with prospective effect which permitted for a determinate sentence in ‘serious cases’ which would require a person to serve two-thirds of the sentence pronounced, rather than one-half of the sentence in what might be described as ‘ordinary cases’. Furthermore, an offender sentenced under this regime would only be eligible for release on licence if a parole board considered it safe to do so. Dangerous offenders committing a second serious criminal offence would receive mandatory life sentences. This scheme was devised to address some of the perceived defects of the IPP regime. The scheme nevertheless still contained elements where continued detention could be enforced based on an assessment of risk only.
12 The judgment of this Court in Nolan recorded that the UK Secretary of State for Justice had expressed the view that it was surprising that the existing IPP system (under which Nolan had been sentenced) had not been struck down on judicial review. In fact, in due course, in James, Wells and Lee v. UK [2012] ECHR 1706, the European Court of Human Rights (“ECtHR”) decided that the IPP system, as applied to the applicants in that case, infringed the European Convention on Human Rights (“ECHR” or “the Convention”). In the circumstances of the case, the ECtHR considered:
“…that following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with the view to providing them with access to appropriate rehabilitative courses … their detention was arbitrary and therefore unlawful within the meaning of Article 5.1 of the Convention.” (para. 221)
It should be noted at this point that the ECtHR did not find that the IPP sentence was incompatible with the Convention on the grounds that detention based on risk was per se incompatible with the Convention. There are a number of countries in Europe where the criminal justice system involves some element of preventive detention, and those regimes have been upheld as compatible with the ECHR.
13 In the light of these developments, the Supreme Court upheld the order of the High Court in Nolan, but on the narrower ground that the IPP regime as applied to the respondent in that case was effectively conceded to be inconsistent with the ECHR, and had been found to be non-compliant. Therefore, the order of the Court was made under s.37(1)(a) of the EAW Act on the basis that surrender to serve the balance of an IPP sentence would be incompatible with the Convention, rather than on the s.37(1)(b) ground that surrender would breach the constitutional rights of the applicant. The court clearly stopped short of endorsing the wide ranging judgment in the High Court.
The consideration of Caffrey and Nolan in the High Court
14 In the High Court, Edwards J. distinguished his own decision in Nolan by reference to the decision in Caffrey, holding that the United Kingdom’s tariff scheme was not inconsistent with the Irish Constitution, since its legal nature was determined to be a life sentence akin to the life sentence imposed in Irish law. Accordingly, the High Court dismissed the objection and made an order for surrender. However, it certified that the judgment involved a point of law of exceptional public importance as follows:
“Where the requested person has been sentenced in the United Kingdom to a life sentence for murder, and has served a portion of the sentence consisting of his/her individualised tariff, and which is said by the issuing state to have constituted the entirety of the punitive element of the said sentence, would the surrender of that person to serve the balance of his/her sentence constitute a contravention of any provision of the Constitution of Ireland, and in particular of Article 40.4 thereof, such that the contemplated surrender would be prohibited by s.37(1)(b) of the European Arrest Warrant Act, 2003?”
Decision in the Court of Appeal and Grant of Leave
15 The Court of Appeal, by a majority (Peart and Mahon JJ.), upheld the decision of the High Court and dismissed the appeal. Hogan J. dissented, and held that Caffrey was not determinative of the matter since it turned on the characterisation of the United Kingdom sentence, by the majority in that case, as a life sentence. Adopting the approach of the High Court in Nolan, Hogan J. referred to a number of statements of this Court and the High Court to the effect that preventive detention was contrary to the Constitution, and concluded that surrender should be refused under s.37(1)(b) of the EAW Act 2003.
16 The Court of Appeal delivered judgment on the 21st of May, 2015. An application was made to this Court under Article 34.5.3 of the Constitution, and by a determination of the 20th of July, 2015, this Court allowed and certified the bringing of an appeal on the following points:
“Where a prisoner has been sentenced in another jurisdiction to a life sentence and has served the portion of the sentence described as consisting of the entirety of the punitive element of the sentence, in conformity with Article 40.3 and Article 40.4 of the Constitution is it possible to take any further step in this State to enforce an apparent remaining element of the sentence which is ostensibly that of prevention or deterrence?
Where a prisoner has been released on licence prior to the full expiry of their sentence and is sought to be recalled because of an apparent breach of licence, is it necessary, and to what extent is it required, to have a hearing prior to or immediately proximate to that recall for such ostensible deprivation of liberty to be in conformity with Article 40.4 of the Constitution and Article 5 of the European Convention on Human Rights.” [2015] I.E.S.C. DET. 34 (para.18)?”
17 In this Court, the appellant advanced argument on both issues, but the bulk of the argument was directed towards the first issue. It is, I hope, no discourtesy to the range and force of the argument articulated by both sides to say that, in essence, the appellant adopted the analysis contained in Hogan J.’s dissenting judgment in the Court of Appeal, and the respondent Minister hewed to the line taken in the High Court judgment and in the majority judgment in the Court of Appeal, with some important additional nuances.
Observations on Appeal
18 There is no doubt that this appeal raises some points of considerable importance. The facts in this case focus the issue with particular clarity, since it is clear that Mr. Balmer, if returned to custody, would be in detention as determined by the assessment of his risk to the public. However, if the appellant is correct, it would appear difficult to surrender anyone to the United Kingdom if charged with murder, and conceivably to surrender any person to a country which has in its sentencing regime elements of prevention, or at least explicit periods of detention, dependent on an assessment of risk. This is obviously of enormous practical importance, but at a broader level, the case is also important because it requires further consideration of an important conceptual question in relation to the extent and nature of the intersection between the guarantees contained in the Irish Constitution and matters occurring abroad pursuant to the law of states with whom this country has made agreements, whether directly, or indirectly as a consequence of membership of the European Union.
19 The appellant’s argument has a number of steps. First, it is said that if surrendered, the detention to which Mr. Balmer would be returned would be professedly preventive in nature since the tariff element of his sentence has long expired. Second, such a regime could not be introduced in Ireland, consistent with a constitutional guarantee of liberty. In particular, the appellant relied in this regard on dicta in the judgment of this Court in Lynch & Whelan v. The Minister for Justice, Equality and Law Reform [2012] 1 IR 1 in support of his contention that the specific United Kingdom sentencing regime in respect of life imprisonment would, if introduced in Ireland, be clearly incompatible with the Irish Constitution. Third, it is argued that, while it must be conceded, in the light of Minister for Justice, Equality and Law Reform v. Brennan [2007] 3 IR 732 and Nottinghamshire County Council v. B [2013] 4 I.R.662, that an Irish court is not precluded from ordering the surrender of a person to a country which does not have the same constitutionally protected trial system as Ireland, such as for example jury trial for non-minor offences, nevertheless, the prohibition on preventive detention flows from the presumption of innocence, which is a fundamental value of universal application, as found by the judgment of the High Court in Nolan. Accordingly, it was argued that surrender in this case is precluded by s.37(1)(b) of the EAW Act 2003.
The decision in Brennan
20 In recent years, this Court has had to address complex issues of law arising from the interaction between this jurisdiction and the legal systems of other countries. In Minister for Justice, Equality and Law Reform v. Brennan [2007] 3 IR 732, this Court delivered an important judgment on the application of s.37(1)(b) of the EAW Act. There, the respondent had absconded from prison in the United Kingdom. An EAW was issued, seeking his surrender for, inter alia, the offence of escape from lawful custody. The warrant delivered stated that escape from lawful custody was a common law offence, and the maximum sentence, therefore, was life imprisonment. The warrant also explained the sentencing regime in the United Kingdom in respect of life sentences, and explained the system of tariff-setting and subsequent detention. This was a somewhat abstract explanation of the provisions of the life sentence in the UK legal system in the particular case, since a life sentence must have been unlikely on the facts. However, the explanation of the EAW, and the reference to the maximum sentence available, led to the argument being made on behalf of the respondent that such a sentence was incompatible with the Irish Constitution. The setting of a minimum tariff under the United Kingdom regime did not, it was alleged, take account of the circumstances of the crime, or the respondent’s culpability, personal circumstances or age, which, it was argued, were essential components of sentencing under the Irish Constitution.
21 This Court rejected this analysis of the United Kingdom sentencing regime, but in any event also addressed the premise upon which the argument was based, namely, that if it could be established that the sentencing regime in the United Kingdom was not compatible in principle with the Irish Constitution, that the Court was obliged to refuse surrender under s.37(1)(b) of the EAW Act. In an important passage, Murray C.J. stated, at pp.743-744:
“37 The effect of such an argument is that an order for surrender under the Act of 2003, and indeed any order for extradition, ought to be refused if the manner in which a trial in the requesting state including the manner in which a penal sanction is imposed, does not conform to the exigencies of our Constitution as if such a trial or sentence were to take place in this country. That can hardly have been the intention of the Oireachtas when it adopted s. 37(1) of the Act of 2003 since it would inevitably have the effect of ensuring that most requests for surrender or extradition would have to be refused. And indeed if that were the intent of the Framework Decision, which the Act of 2003 implements, and other countries applied such a test from their own perspective, few, if any, would extradite to this country.
38 Indeed it may be said that generally extradition has always been subject to a proviso that an order for extradition, as with any order, should not be made if it would constitute a contravention of a provision of the Constitution. I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged by the Constitution.
39 The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non-minor offence. Rules of evidence may differ. The fact that a person would be tried before a judge and jury in this country for a particular offence could not in my view, be a basis for refusing to make an order for surrender solely on the grounds that in the requesting state he or she would not be tried before a jury. The exceptions which we have to the jury requirement, as in trials before the Special Criminal Court, acknowledges that a fair trial can take place without a jury even though it is constitutionally guaranteed for most trials in this country.
40 That is not by any means to say that a court, in considering an application for surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances, such as a clearly established and fundamental defect in the system of justice of a requesting state, where a refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused pursuant to s. 37(2) of the Act.”
Further Observations on Appeal
22 While this type of issue arises most obviously in the field of extradition or surrender under an EAW, it is also capable of arising in any other field where Ireland has entered into agreements or undertaken obligations to cooperate with another state. In most cases, this may involve cooperation between courts, but in principle, the issue can also arise in other areas of contact or cooperation between states. As travel and contact between people in different countries becomes easier and speedier, the need for international cooperation becomes more important. However, the difference between legal systems can be substantial, and the opportunity for misunderstanding is great. Even systems with shared roots can diverge in significant ways. At the same time, there is an increasing awareness of the international dimension to the protection of human rights.
23 Ireland is by no means the only country which has grappled with this issue. In principle, a similar type of problem may arise if it is alleged that surrender would result in treatment or procedures that would constitute a breach of the ECHR. However, surrender, at least within the EU pursuant to an EAW, or indeed to countries which are Member States of the Council of Europe, may pose fewer problems for courts in practice. The rights guaranteed by the Convention apply in the requesting state. Those states are obliged to enforce the rights under the ECHR, and prima facie are best placed to do so – see Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669. Furthermore, there is a system of scrutiny, review and reporting on the protection of rights under the Convention, and ultimately a supranational court which can definitively rule on the compliance of a particular system with the Convention. Moreover, since the Convention applies in many different legal systems, its guarantees are expressed at a level of generality, and a margin of appreciation applies which allows for differences between contracting states. It is rare for a national court to have to consider for the first time, and without assistance, and to pass judgment upon the compatibility with the Convention of the legal or administrative system of another contracting state. Indeed, in those rare and, perhaps, egregious cases where the issue raised could justify a refusal to surrender, the residual jurisdiction of a court to refuse to surrender a person because of an anticipated breach of rights guaranteed under the Convention may be a salutary element in the enforcement of rights which the requesting state is obliged to uphold.
24 However, the problem is much more acute at the level of national constitutional protections. Given the nature of fundamental rights, there will often be a significant overlap between the rights guaranteed in a national constitution and those guaranteed at a supranational level. In many cases, little practical difficulty may arise from this overlap. If the substance of the rights is the same, then the obligation of the requesting state to vindicate rights under the Convention will mean that there should be little, if any, scope for separate possible conflict with the same rights guaranteed under the national constitution. However, national constitutions may express guarantees which are more extensive and demanding than, or merely different to, the guarantees under the Convention, and, in any event, which may be expressed in the text or in the case law at a level of much greater detail. For example, the proceedings involved in the investigation and trial of criminal offences in Ireland are regulated much more closely and directly by the demands of the Irish Constitution than by rights guaranteed under the Convention. In cases where it is alleged that what occurs in another state, although valid by the laws of that state and compliant, perhaps, with the ECHR, is nevertheless something which would be incompatible with the Irish Constitution if carried out here, then difficult questions arise.
25 The proposition that Ireland will not refuse to surrender a person to another country with whom it has an agreement, whether bilateral, multilateral, or pursuant to the obligations of membership of the European Union, merely because it is said that the manner in which that person would be treated would not be permitted here under the Constitution, is one which is, by now, well established. At the same time, it is clear that there are circumstances in which a court obliged to uphold the Constitution must refuse to transfer a person or cooperate with another jurisdiction. However, neither the precise dividing line between cases of surrender and non-surrender, nor the principle justifying such a distinction, has been articulated in any detail in the decisions. These courts, perhaps wisely, have proceeded incrementally. In Nottinghamshire County Council v. B [2013] 4 I.R.662, this Court had to address Article 20 of the Hague Convention, which permitted the refusal of the return of a child to a requesting state in circumstances where it would not be permitted by the fundamental principles of the requested state. In my judgment in that case, I said, at para. 157:
“In the light of the limited authority and commentary and the relatively narrow range of authority cited in this case, it seems particularly inappropriate to attempt to seek to provide in this judgment the single all encompassing theory to which some of the commentary aspires. On the contrary, the approach suggested in this judgment is necessarily tentative, and may well require refinement in the light of more precise and focussed argument in particular cases.”(p.716)
That approach is desirable also in this context. Some guidance can, however, be obtained from the decided cases.
26 An interesting early case is The People (DPP) v. Campbell (1983) 2 Frewen 131, referred to in Nolan. That case involved a trial in this jurisdiction under the Criminal Law (Jurisdiction) Act of 1976 of acts committed in Northern Ireland. The offences related to escape from lawful custody. At the trial, issue was taken in relation to the legality of the accused’s detention in Northern Ireland by reference to Irish constitutional standards. The Court of Criminal Appeal rejected the contention that constitutional norms required under the Irish Constitution ought to be applied to foreign criminal processes. Hederman J. said, at pp.142-143:
“The point now raised is an entirely different one; namely, whether in adjudicating on the lawfulness of an act in Northern Ireland (i.e. in this case, the lawfulness of the accused’s custody) the Courts here can decide that the act is unlawful if it does not accord with our laws (constitutional or otherwise). As to the rights which Irish citizens are granted by the Constitution, the judgment of the Supreme Court [in re The Criminal Law (Jurisdiction) Bill 1975 [1977] I.R. 129] makes it clear that the right to obtain “constitutional justice” from tribunals (judicial and non-judicial) is a right which does not extend to tribunals established outside the jurisdiction of the state. The lawfulness of the custody in Northern Ireland of an Irish citizen cannot therefore be impugned by reference to a non-existent right. The conclusions of the Supreme Court with regard to the right to constitutional justice apply with equal force to any of the other unspecified personal rights which an accused person may enjoy by virtue of Article 40.3 of the Constitution in relation to criminal proceedings in this State.”
27 In the context of the EAW, the Supreme Court in Brennan, as already referred to, explicitly stated that it was only egregious circumstances, such as a clearly established and fundamental defect with a system of justice, which would justify non-surrender. It is, perhaps, relevant that this statement was made in the specific context of a consideration of the life sentence regime in the United Kingdom, including the fixing of a tariff and a period of detention thereafter. In Minister for Justice, Equality and Law Reform v. Murphy [2010] 3 IR 77 (also referred to in Nolan), the respondent had escaped from hospital detention and a surrender was sought by the United Kingdom authorities. He had been convicted in the United Kingdom on rape and assault charges and was sentenced to a “hospital detention order” coupled with a “restriction order”. The EAW stated that the defendant was to be “detained indefinitely”. The effect of this was that he was to be detained in a psychiatric hospital with his discharge being at the discretion of the Mental Health Tribunal and the Secretary of State. Nevertheless, the respondent’s surrender was ordered. The judgment of Denham J. in the Supreme Court established that only part of the sentence which the respondent would have to serve involved preventing further harm to society. At para. 49, p. 90, she stated:
“The law relating to sentencing is not identical in all member states. In this case the law of the United Kingdom enables a sentence to be one of detention by way of a hospital order. Such a detention order apparently involves elements of protection for society.”
Significantly in the present context, this did not prevent surrender.
28 In Minister for Justice and Equality v. Shannon [2012] IEHC 91, Edwards J. rejected a contention that due to the fact that the prosecution would be entitled to introduce evidence of the respondent’s previous convictions in a trial in the United Kingdom, the courts should refuse to surrender him under s.37(1)(b) of the EAW Act. Edwards J. considered the argument was:
“…fundamentally misconceived because it asks the Court to engage in a completely artificial, and indeed inappropriate, exercise and that is to exercise a supposed jurisdiction that is premised on the application of the Constitution to the laws of England and Wales and to pore over the issuing state’s criminal justice process to determine as the court is invited to do, that it differs in different respects from what is constitutionally mandated in this jurisdiction. In this Court’s view, it is clear from the Supreme Court judgments both in Minister for Justice, Equality and Law Reform v. Brennan and in Minister for Justice, Equality and Law Reform v. Stapleton that to do so would be entirely inappropriate.”
29 Recently, in Minister for Justice and Equality v. Buckley [2015] IESC 87, this Court rejected a similar challenge to surrender where it was contended that the potential right of the prosecution in the United Kingdom to introduce evidence of an alleged co-conspirator’s conviction in a trial for conspiracy would be incompatible with the Irish Constitution. It was said that the deployment of those provisions in a trial would be a denial of the respondent’s right to hear evidence presented in the context of a trial and to contest such evidence by cross-examination, relying on Borges v. Fitness to Practice Committee of the Medical Council [2004] 1 IR 103. The judgment of MacMenamin J. (nem diss) rejected that challenge, stating at para. 24-25:
“Both Brennan and Nottinghamshire County Council are authority, therefore, for the proposition that, absent some matter which is fundamental to the scheme and order of rights ordained by the Constitution, or egregious circumstances, such as a clearly established and fundamental defect, or defects, in the justice system of a requesting state, the range and focus of Article 38 must be within the State and not outside it. The Court is presented, here, with what, at its height, can only be characterised as a ‘different rules of evidence case’; but no more.
I would, therefore, summarise matters this way. First, the case advanced by the appellant is hypothetical, in that its actual or likely impact on the respondent is unclear, and certainly no capable of being characterised as a defect in the system of justice of the requesting state. Second, even if, hypothetically, ss.74 and s.75 P.A.C.E. 1984 are not in accordance with the values found in Article 38; it is immaterial, if the appellant cannot show what would be at issue would be, or is likely to be, an “egregious” departure amounting to a denial of fundamental or human rights (per Murray C.J. in Brennan [2007] 3 IR 732 at p. 744 par. 40). There would have to be significantly more: a real and substantive defect in the system of justice, where fundamental rights were likely to be placed at risk, or actually denied. As Murray C.J. pointed out in Brennan, rules of evidence “may differ” between states, and that alone does not at all lead to the necessary conclusion that there is a breach of fundamental rights in the requesting state. Finally, and again as held in Brennan and Nottinghamshire County Council, the reach of Article 38, save in exceptional circumstances, goes no further than the boundary of the State. There is nothing in Article 38 to suggest anything beyond that. What is in question, then, is the lawfulness of the surrender of the appellant in this jurisdiction. I would, therefore, answer the question in the negative.”
30 These cases are all examples of circumstances where objections under s.37 have failed. In each case, even assuming that the impugned foreign provision would have been found to be incompatible with the Irish Constitution if enacted in Irish law, the court in each case nevertheless found that surrender of such a person was not prevented by s.37, or indeed, by the Constitution of its own force. The undesirability and inappropriateness of scrutinising foreign laws by reference to Irish constitutional standards is itself consistent with the approach taken in Campbell where, notwithstanding the fact that the trial occurred in the jurisdiction of the courts, the court did not apply Irish constitutional standards to the detention of suspects in Northern Ireland. Even though these cases are individual instances, they form a broadly consistent line of authority. They illustrate an approach which is, moreover, compatible with the observations of Murray C.J. in Brennan, and, indeed, both the observations made and the decision in Nottinghamshire County Council v. B.
31 A case which may fall on the other side of the line is the High Court decision in Nolan. In that case, the High Court had to consider the operation of controversial “IPP” sentences introduced in the United Kingdom pursuant to the provisions of the Criminal Justice Act 2003. As discussed earlier in this judgment, the respondent had been convicted on a charge of attempted rape and sentenced to detention “for public protection” with a “specified period” of two years and six months’ imprisonment. The effect of this sentence was that after the offender had served the appropriate minimum period, reflecting what was described as the “punitive element of the sentence”, the offender entered into the “risk” element of the sentence, and could be detained if, but only if, he continued to represent a risk to the public. An independent parole board conducted a review of the detained prisoner’s sentence once the punitive element of the sentence had expired. The court considered that the continued detention of the offender after the expiry of the tariff period amounted to preventive detention, and thus was incompatible with Article 40 of the Constitution guaranteeing the right to liberty and the personal rights of a citizen, one of which was the presumption of innocence. In particular, he considered that preventive detention in the criminal justice context was “something that the Irish Constitution forbids absolutely (though of course it is permitted in the health protection context, but that is a completely different matter)”. The presumption of innocence was not merely a part of Article 38, which was, the Court considered, limited territorially to the jurisdiction of the State, but was in itself a “higher legal principle of universal application”. It was “much more that a mere procedural trial right”. Moreover, since it was a personal right, it could apply extraterritorially. The conclusion was stated at para. 132:
“In the Court’s view because of the presumption’s status as a principle of higher law, any measure affecting the personal liberty of the citizen that fails to respect it must be regarded as being repugnant to the Constitution, and specifically Article 40.4.1º thereof, notwithstanding the fact that Article 38 does not have extra-territorial effect.”
Accordingly, surrender was refused under s.37(1)(b) of EAW Act.
32 This judgment was, understandably, heavily relied on by the appellant in this case, and it will be necessary to consider the underlying reasoning in due course. However, in that regard, it is important to recognise, as already noted, that the Supreme Court in Nolan, while upholding the decision, stopped notably short of endorsing the reasoning in that case. Instead, due to subsequent developments in the United Kingdom which strongly suggested, if not conceded, the incompatibility of the IPP regime with the European Convention of Human Rights, as well as the repeal of that regime, the court dismissed the appeal against the order of the High Court. Furthermore, it is also important to note that in the present case in the High Court, Edwards J. (who was the trial judge in Nolan) distinguished that decision in dismissing the objection under s.37 of the EAW Act.
33 The argument on behalf of the appellant followed closely the approach of the High Court in Nolan. First, it was argued that it was clear that the regime of detention for a life sentence in the United Kingdom, after the expiry of the punitive tariff set by the sentencing judge, contained an element that was purely preventive detention. Preventive detention is fundamentally inconsistent with the Irish Constitution. It has “no place in our legal system” per Walsh J. in People (Attorney General) v. O’Callaghan [1966] I.R. 501, at p. 516. Indeed, it had been stated, most clearly in dicta contained in the judgment of the Supreme Court delivered by Murray C.J. in Lynch & Whelan v. Minister for Justice [2012] 1 IR 1, that the regime in the United Kingdom in respect of life sentences “is not and could not be the position in this jurisdiction”. (Emphasis added). It was argued, therefore, that the imposition of such a sentence in the United Kingdom in this case was a breach of the Irish Constitution. That was all the more clear since the tariff period had long since expired and, if surrendered, the respondent would thereafter serve the portion of the sentence which was purely preventive. The prohibition on preventive detention contained in the Irish Constitution was not merely a fair trial right under Article 38 of the Constitution, which, it was accepted for the purposes of the argument, was limited in its effect to trials carried out in the jurisdiction. It was derived from the presumption of innocence which was a personal right universally recognised and applied, and could be traced back to Roman law, if not further. Moreover, Article 40.3 of the Constitution applied, in principle, outside the territory of the State since it protected personal rights. There could, of course, be practical limits on enforceability by reason of the fact that the events occurred outside the jurisdiction of the court, but this posed no difficulty or valid objection to the argument that the rights applied outside the jurisdiction, because the obligation to defend and vindicate the rights of the citizen was subject to the qualification that such a constitutional guarantee was to be vindicated “as far as practicable”. It was generally impracticable to control detention carried out in other countries. Therefore, the remedy of an inquiry under Article 40.4 might not be available, but there was no issue of practicability here where the assistance of an Irish court was sought for the surrender of an individual. The respondent was within the jurisdiction, and the courts were obliged to defend and vindicate his rights, which meant in this case that he should not be surrendered. Taken one step further, it was argued that this approach might explain the decision in Brennan as an example of impracticability, since it was not feasible to seek to control the conduct of a trial in another jurisdiction. On this more general approach, the rights under the Irish Constitution (or at least the right in issue here) applied everywhere and the enforcement of those rights was limited only by considerations of practicability. This, it was suggested, explained why the Constitution applied (or was enforceable) with full force within the jurisdiction of the courts but more haphazardly in respect of events occurring abroad.
34 The respondent’s argument in this regard was clearly derived from aspects of the decision of the High Court in Nolan but seemed to enlarge on it somewhat. It was met by an equally robust argument that the Constitution was limited territorially, only applied within the jurisdiction of the courts, and stopped, as it were, at the point of departure from the national territory.
35 Much of our daily life and our reasoning processes involve shortcuts, rules of thumb, statements of principle and generalisations. The various statements that preventive detention has no place in our law, that the Constitution has territorial limits, that rights such as the presumption of innocence are universally recognised, and have been respected in different cultures at different times, all contain important truths. But it is necessary for a court to satisfy itself that they are well founded and applicable in every conceivable situation before it could be correct to decide a case merely on the invocation of generalised statements, however eminent the original source. The arguments advanced in this case would have very far reaching consequences, if accepted. They require careful analysis.
36 In the first place, I do not think that it is sufficient to argue that the Constitution stops at the boundaries of the State. There may well be circumstances where the Constitution may affect matters occurring abroad; equally, there may be many more situations where events abroad may have constitutional consequences for Ireland. For example, if the Irish State were to become involved in activities which confiscated the property of citizens (or indeed, possibly non-citizens) abroad or deprived them of their liberty, it would be surprising if it were the case that such actions could never give rise to actions against the State, enforceable in an Irish court. Similarly, if Irish forces are deployed abroad, questions may well arise as to their rights, and the rights of those with whom they interact. Since it seems that the Constitution conceives of some element of horizontal applicability (see Meskell v. CIE [1973] I.R. 121), it cannot perhaps be ruled out in principle that a constitutional tort could be committed abroad. If, on the other hand, evidence were obtained abroad of a clear violation of fundamental norms guaranteed by the Constitution, it would be surprising if it were contended that no possible issue arose under the Constitution if that evidence were sought to be deployed in an Irish court. And, of course, as s. 37 of the EAW Act and Article 20 of the Hague Convention illustrate, it may be necessary to consider what might happen abroad when determining whether it is a breach of the constitutional rights of an individual to surrender that person under an EAW or to extradite them under an extradition agreement, or to return a child pursuant to the Hague Convention. The fact that matters occurring abroad may well have different consequences under the Constitution than if they occur here does not mean that they are necessarily always, and in all cases, legally and constitutionally irrelevant. I do not think, therefore, that this case can be disposed of by the simple proposition that the Constitution only has relevance to matters within the jurisdiction, however defined.
37 I have, if anything, greater difficulty in accepting the argument that preventive detention infringes a fundamental right of universal application, and that accordingly, any such detention, wherever it may occur, is a breach of the Irish Constitution, limited only by considerations of the practicability of vindicating the rights involved. In my view, there is nothing in the Constitution to justify the distinction between “mere” procedural rights and “higher rights of universal application”. Nothing in the Constitution suggests an entitlement to disregard one right and enforce the other. The obligation on a court is to defend and vindicate all the rights of the citizen. Indeed, until now I would have regarded the Article 38 right of trial by jury as one of the basic rights guaranteed by the Constitution. It is, after all, derived from the right of trial in due course of law which can be traced to Magna Carta. The specific right of trial by jury was celebrated by Lord Devlin as “more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives”: P Devlin, Trial by Jury, (London, 1956) at p.164. I would find it hard to conceive of a value system that ranked this right as decisively inferior to other rights, and I do not know where in the Constitution such a table of values is to be found. It is also strange if an unenumerated personal right under Article 40.3 may be weighed as more valuable than a right specifically enumerated in the Constitution. The superficial distinction between rights guaranteed under Article 38 (and limited to the territory of the State) and rights guaranteed as personal rights (which are not) is, in any event, too porous to be a serviceable concept. It is always possible, as the example of the presumption of innocence shows, to characterise a right in slightly different terms, as a personal right guaranteed by Article 40.3 to fair procedures, or a fair trial right under Article 38, or a component of the administration of justice under Article 34. The particular distinction asserted between procedural rights applicable at the trial (and prima facie unenforceable abroad) and rights in respect of detention (and prima facie enforceable) would also have the consequence that the Constitution did not control any part the trial of an individual abroad, but did purport to control his or her sentence.
38 The concept that there are rights of universal application having an international application poses more difficulties. While there might be broad agreement between civilised countries on headline principles (and this is itself a large assumption), there are, at a practical level, significant divergences between states on what those principles require. If, by way of example, the inclusion in a sentence for a crime of any element of detention for the protection of the public is a violation of a principle of universal application, it would be surprising if it was then adopted in countries like the United Kingdom and Germany and was found to be compatible with the European Convention on Human Rights. If it is a right of universal application, then one would expect to see it universally applied. It is no answer to this problem to say that the Irish antipathy to preventive detention in this case is derived from a widely accepted principle: the presumption of innocence. By the same token, it is possible to say that the right to trial by jury for non-minor offences is derived from a principle of due process which is itself of universal application. The issue in every case is what those general principles require in specific circumstances, which is something upon which countries can and do differ. It is not possible to justify the imposition of our choices in this regard on others, or to condemn their choices, simply on the basis that we all adhere to some general principles which are not in dispute. This is particularly so in the case of a right expressed or developed in a singular way in the constitutional jurisprudence of one country. By definition, the right is not universally recognised. Universal applicability cannot be the basis for its application to other countries.
39 The concept that some, or perhaps all, of the provisions of the Irish Constitution apply to actions occurring abroad, and are limited only by considerations of practicability of enforcement, is also troubling. At one level, it might appear to make no practical difference whether a court considers that the Constitution does not apply to actions occurring in a foreign state, or does apply but cannot be enforced. However, there is a very significant difference, not least because of the strong terms in which the courts under the Constitution are obliged to enforce and vindicate constitutional rights. It was said by Ó Dálaigh C.J. in State (Quinn) v. Ryan [1965] I.R. 70 that the powers of the courts were as ample as the defence of the Constitution required.
40 It is only one objection to this argument that it cannot explain the reasoning in Brennan. While it was suggested in argument that it is not practicable to enforce the right to trial by jury for non-minor offences abroad, this is not a persuasive explanation since the right involved could be vindicated by refusing to surrender a person to such a regime. On the other hand, the conception that only parts of the Constitution are applicable abroad and subject to a limitation of practicability cannot be supported by the text or structure of the Constitution or its interpretation, at least until now. Assuming, for this portion of the argument, that the detention of an individual for a life sentence after the expiry of a tariff period is a breach of the Irish Constitution, and that the Constitution applies abroad, then the question arises whether anyone involved in that detention could be sued for false imprisonment, or deprivation of constitutional rights if they happened to come to Ireland, and were thereby or otherwise within the jurisdiction of the Irish courts. Could the judge and jury and any other participants in a trial be sued for failing to vindicate the constitutional rights of the citizen? Until now, such proceedings would immediately be struck out on grounds of sovereign immunity. But sovereign immunity is a common law principle (albeit derived from international law). Would it have to be modified to allow a remedy to vindicate constitutional rights? Again, if the position is looked at in reverse, could it be said as a consequence that the constitutions of all other countries apply in Ireland with the effect that actions lawful by the law of Ireland may yet be a breach of constitutional guarantees of other countries, having legal consequences if jurisdiction can be enforced? It is not necessary to labour this point further. It is sufficient to say that I cannot accept that such a wide ranging proposition is sufficiently grounded in the text of the Constitution. Indeed, in its baldest form, as advanced in argument in this case, it is, in my view, inconsistent with it.
A Narrower Argument
41 It might be argued (although it was not argued in this case) that it is not necessary to make such an ambitious claim to explain why surrender should be refused under s.37(1)(b) of the EAW Act. It might be argued that what is involved here is the application of constitutional guarantees in Ireland, which is not only unobjectionable, but on one view, required. The Irish court is being requested to surrender a person within its jurisdiction, and it is bound by the provisions of the Irish Constitution. There is no question, therefore, of a troubling extraterritorial effect: the Constitution is merely being applied intraterritorially, and surrender would be refused, not because the sentence itself was a breach of the Irish Constitution, but because it would be a breach of the Irish Constitution (and the courts’ obligation to vindicate the rights of persons under the Constitution) to surrender someone if the result would be that he or she would be dealt with by a process which would not itself be permitted under the Irish Constitution.
42 That more modest argument would, however, lead to a situation where the Constitution applied with full force in cases of surrender, extradition, deportation and return under the Hague Convention and in other similar situations. For reasons discussed elsewhere, that would significantly restrict, if not indeed nullify, the process of surrender under the EAW system, because few, if any, countries have a criminal justice system which is identical to ours, even in those respects which are derived from the Constitution. The formulation of offences and defences, the process of investigation and evidence gathering, the rules governing arrest, detention and questioning, the representation of a suspect prior to and at trial, the manner in which the proceedings are conducted, the person before whom they are conducted, the circumstances in which a jury is required, the composition of a jury, the requirements for a verdict, and finally, the question of sentence and imprisonment, are all matters regulated in this jurisdiction by either the express terms of the Constitution or the interpretation given to it. By the same token, it could have a significant effect on requests made by Ireland in other jurisdictions if those jurisdictions were to take a similar approach. Similar issues arise in other areas of international cooperation. Even more fundamentally, such an argument is incompatible with the line of authority which crystallised forcefully in Brennan, which holds that it is only in egregious circumstances that surrender must be refused under s.37(1)(b) of the EAW Act. The question remains, however, why that is so.
43 In my view, these are the reasons why it can be said that the Irish Constitution does not, in general, apply abroad. It also explains why the Brennan test applies to surrender. Irish constitutional law (and therefore s.37(1)(b) of the EAW Act) distinguishes between events occurring abroad and those occurring here, not merely because they do occur abroad, and therefore, are observed rather than controlled by Irish law: it is also, and more importantly, because, particularly in the field of criminal law, they are controlled by the law of a foreign sovereign state. In this case, the execution of a sentence lawfully imposed, the trial of an offence contrary to law, and the enactment of laws providing for definitions of offences, punishments and administration of sentences, are all fundamental and central attributes of sovereignty. The comity of courts is not merely a matter of politeness between lawyers, or an end in itself: it is an aspect of the relationship between sovereign states. An essential corollary of sovereignty is the equality of states, expressed in the 14th century maxim “non enim una civitas potest facere legem super alteram, quia par in parem non habet imperium” (For it is not for one city to make the law upon another, for an equal has no power over an equal) Brownlie’s Principles of Public International Law, 8th Ed (Oxford, 2012), at p. 448. Article 5 of the Constitution asserts, in words that were by no means rhetorical in 1937, that Ireland is a sovereign, independent state. By Article 1 of the Constitution, the nation affirms its sovereign right to determine its relations with other nations. The conduct of external relations of the State raises separate constitutional issues, and requires a wider constitutional focus than the question of whether a certain procedure would be permissible within the jurisdiction.
44 Article 29 of the Constitution outlines that Ireland affirms its “devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality”. This statement encapsulates a key principle applicable to the circumstances of this case. Cooperation implies some give and take. It also focuses attention on reciprocity, and the equality of sovereign states. The making of an extradition treaty, adherence to a convention on extradition, the implementation of a framework decision, and adherence to international decisions in areas of family law may all raise issues when surrender or return is sought. It is also necessary to appreciate that those issues arise under the same instrument which permits Ireland to seek the surrender of suspects for trial of offences alleged to have occurred in Ireland in respect of which Ireland has jurisdiction, or for the return of individuals to the jurisdiction of the Irish courts. It is not, therefore, a case of the Irish Constitution controlling events abroad (in which case the only question would be whether the acts alleged amount to a breach of the Constitution); it is, as already observed, rather that the Irish court is observing events abroad. Moreover, those events are observed through the lens of Article 29, requiring friendly cooperation, and Articles 1 and 5, which, in asserting sovereignty, require the respect of the sovereignty of other countries. The events, with which we are concerned here, are not private transactions between individuals. They are, by definition, the application of the criminal law within the territory of a sovereign state (in most cases to, and in respect of, its own citizens), or the execution of sentences imposed by their courts. These are key attributes of sovereignty of foreign friendly states, whose sovereignty we are bound by the Constitution to respect, in the same way as we expect respect for matters within our own jurisdiction. This is why, in my view, it is correct to speak of s.37 of the EAW Act as applying only to matters of “egregious” breach of fundamental principles of the Constitution or when something is so proximate a consequence of the court’s order and so offensive to the Constitution as to require a refusal of surrender or return. It may be that the concept of friendly cooperation may also permit or require steps to be taken which would not have been taken in an earlier age, and not merely because the provisions of the Irish Constitution have been altered, but also because the area and content of international cooperation has extended. Such cooperation is, however, not unlimited. It is, for example, by the terms of the Constitution itself subject to justice and morality. There are also examples of limitations on this principle by consent, or international agreement or otherwise. It neither necessary nor desirable to explore these circumstances here, since they were not adverted to in argument. It is enough to identify the focus of the analysis for the purpose of s.37, which, in my view, explains the application of the Brennan approach.
45 This suggests that this area cannot be subject to absolute bright line rules, and further, that progress should be careful and incremental, and in contested cases, should involve close consideration of the relevant facts. It is necessary, therefore, in my view, to look much more closely at the sentencing regime in the United Kingdom and to consider equally carefully the constitutional law on preventive detention in this jurisdiction than the argument on either side would permit before coming to a conclusion as to whether or not Mr. Balmer’s surrender is prohibited under the Constitution, and therefore under s.37 of the EAW Act.
The Life Sentence in the UK.
46 The regime of life sentences in the United Kingdom is a matter of foreign law and requires proof unless it is not contested. Here, the Court has had the considerable benefit of a detailed and lucid statement of the United Kingdom law contained in the affidavit of Ms. Amelia Nice, a barrister of the Bar of England and Wales. I have found this particularly helpful because I had thought I had a general, if indirect, understanding of the United Kingdom system from the decisions on aspects of the regime found in the decisions of the European Court of Human Rights, and indeed, in the Superior Courts of the United Kingdom. However, the exercise carried out in this case of considering the detailed provisions of the law of the United Kingdom shows the critical importance of understanding clearly the precise foreign law before offering generalisations on its compatibility with Irish constitutional law or fundamental rights principles more generally. What follows is, I hope, an accurate account of the uncontested evidence.
47 The death penalty was abolished in the United Kingdom in 1965 by the Murder (Abolition of Death Penalty) Act of that year. The Act substituted a mandatory life sentence on conviction for murder for the previous mandatory sentence of death. Section 1(2) of the Act permitted the court, on imposing the sentence, to declare the period “which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence under section 27 of the Prison Act 1952”. It is reasonable to speculate that the purpose of this provision was to avoid, or at least to make more difficult, the undermining of the new life sentence by an unduly lenient approach to release on the part of the Home Secretary. Ms. Nice comments:
“The terms “tariffs” and “punitive element of the sentence” are used in Section h of the European Arrest Warrant to explain the process for the review of a life sentence. They are not statutory terms but describe what is referred to in section 28 of the Crime (Sentences) Act 1997 and Schedule 21 to the Criminal Justice Act 2003 as the “minimum term” and is the period of imprisonment which the offender has to serve before he can be considered for early release by the Parole Board.”
So far, it is clear that what was colloquially described as the tariff was the minimum term recommended by the sentencing judge, which indicated the period before which it would not be appropriate to release.
48 The concept of a tariff period setting the punitive period of detention after which detention was justified by reference to risk to the public is a colloquial description, and follows from administrative arrangements introduced by the Home Secretary in 1983, under which the government sought to fix the period which had to expire before application for release could be made to (or considered) by the Parole Board. Again, as described by Ms. Nice:
“Under those arrangements, Home Office Ministers set a minimum period of imprisonment – known colloquially as the “tariff” – to satisfy the requirements of retribution and deterrence and specified that period which had to be served in full before an offenders release could be considered by the Parole Board.
…
… Thus, life sentences were often referred to as encompassing a “punitive” period, represented by the tariff length and a “preventative” period during which release and liberty on licence was dependent on the assessment of risk.”
In other words, the terms had no statutory significance, but described an exercise in which an official could determine prospectively the period an individual might serve in prison.
49 It is not surprising that this regime was challenged, and in 2002, the United Kingdom House of Lords held that tariff-setting was a sentencing exercise which should be performed by a judge. Tariffs set by ministers were found by the House of Lords to be incompatible with the ECHR, but not illegal so as to invalidate sentences imposed – R (on the application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837. Since 2003, minimum terms are set in open court by the trial judge. The law of England and Wales imposes a duty to release certain life prisoners when he or she has served the relevant part of his or her sentence and the parole board has directed release. The board may direct such release if “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”. A life prisoner can require the Secretary of State to refer his case to the parole board at any time after he has served the relevant part of his sentence, being the minimum term now set by the trial judge. Once released, a prisoner is not entirely at liberty. The sentence remains in force for the rest of his or her life, and could be revoked, and the licensee returned to prison at any time if he/she “no longer represents a safe enough risk to remain in the community”. Any such recall could be recommended by the parole board, and if recall is instituted by the Secretary of State, it must be referred to the parole board.
50 As I understand the system, the person found guilty of murder in the United Kingdom must be sentenced by the court to life imprisonment. On sentencing, the judge now sets the minimum period of detention. The prisoner cannot be released before that date. The prisoner must be released if, after that date, a parole board directs his release. The board can only direct release if satisfied that detention is no longer necessary for protection of the public. If released, the former prisoner remains on licence and may be recalled to serve the balance of the sentence. Any such recall is either recommended by the parole board or must be referred to the parole board. References to tariffs and punitive periods of imprisonment are not statutory terms.
The UK regime compared to the Irish life sentence
51 This regime can be compared to the provisions of Irish law. Both systems of law in relation to the life sentence clearly come from the same source. In particular, the development of the law has clearly been influenced by the introduction of a mandatory life sentence in replacement of the death penalty. Irish law requires a judge to impose a sentence of life imprisonment on a conviction for murder. There is, however, no provision permitting or requiring the sentencing judge to fix or recommend any minimum period before which the prisoner can apply for release. As a matter of practice, it is seven years before consideration is given to release. The decision is made by the Minister for Justice on the advice of the parole board. The relevant provisions were described in a statement made by the Minister for Justice in 2006, as quoted in Lynch & Whelan v. Minister for Justice (High Court) [2008] 2 IR 142, at p. 170:
“The Parole Board’s principle function is to advise me in relation to the administration of long term prison sentences. This, of course, includes persons serving life sentences for murder who are eligible to have their cases reviewed by the Board after seven years. Sometimes the timeframe for the first review of a life sentenced prisoner by the Parole Board after a seven year period has led – wrongly – to an assumption that life sentence prisoners are then released. This is entirely without foundation.”
This statement went on to identify periods of detention which could be expected in respect of particularly serious instances. The Minister continued:
“Likewise, where the perpetrator, by his crime or by his personality or behaviour remains an obvious risk to the safety of others, the public good will be protected by extended imprisonment.” (emphasis added)
He concluded, at p.170-171:
“Even when released, life sentenced prisoners remain subject to supervision indefinitely. This supervision is carried out on behalf of my Department by the probation and welfare service. In all such cases there is the condition that the person released must be of good behaviour. If he or she comes to the attention of the authorities for any breach of temporary release conditions, he or she may be arrested without warrant and taken back into custody without the need for fresh proceedings and may be held in custody thereafter at my discretion.”
52 The statement of the Minister also explained that release of a prisoner sentenced to life imprisonment is considered to be made pursuant to the provisions of the Criminal Justice (Temporary Release of Prisoners) Act 2003. The relevant provisions of the statute are set out in the judgment of the Supreme Court delivered by Murray C.J. in Lynch & Whelan v. Minister for Justice Equality and Law Reform [2012] 1 IR 1, at p.8-10 as follows:
“(1) The Minister may direct that such person as is specified in the direction (being a person who is serving a sentence of imprisonment) shall be released from prison for such temporary period, and subject to such conditions, as may be specified in the direction or rules under this section applying to that person—
(a) for the purpose of—
(i) assessing the person’s ability to reintegrate into society upon such release,
(ii) preparing him for release upon the expiration of his sentence of imprisonment, or upon his being discharged from prison before such expiration, or
(iii) assisting the Garda Síochána in the prevention, detection or investigation of offences, or the apprehension of a person guilty of an offence or suspected of having committed an offence,
(b) where there exist circumstances that, in the opinion of the Minister, justify his temporary release on—
(i) grounds of health, or
(ii) other humanitarian grounds,
(c) where, in the opinion of the Minister, it is necessary or expedient in order to—
(i) ensure the good government of the prison concerned, or
(ii) maintain good order in, and humane and just management of, the prison concerned, or
(d) where the Minister is of the opinion that the person has been rehabilitated and would, upon being released, be capable of reintegrating into society.
(2) The Minister shall, before giving a direction under this section, have regard to—
(a) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates.
(b) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto,
(c) the period of the sentence of imprisonment served by the person,
(d) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison,
(e) any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him relates,
(f) the risk of the person failing to return to prison upon the expiration of any period of temporary release,
(g) the conduct of the person while in custody, while previously the subject of a direction under this section, or during a period of temporary release to which rules under this section, made before the coming into operation of the Criminal Justice (Temporary Release of Prisoners) Act 2003, applied,
(h) any report of, or recommendation made by—
(i) the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned,
(ii) the Garda Síochána,
(iii) a probation and welfare officer, or
(iv) any other person whom the Minister considers would be of assistance in enabling him to make a decision as to whether to give a direction under subsection (1) that relates to the person concerned.
(i) the risk of the person committing an offence during any period of temporary release,
(j) the risk of the person failing to comply with any conditions attaching to his temporary release, and
(k) the likelihood that any period of temporary release might accelerate the person’s reintegration into society or improve his prospects of obtaining employment.
(3) The Minister shall not give a direction under this section in respect of a person—
(a) if he is of the opinion that, for reasons connected with any one or more of the matters referred to in subsection (2), it would not be appropriate to so do …” (emphasis added)
In the judgment of the Court, Murray C.J. commented, at p.27:
“Inevitably two of those considerations which ought to be taken into account in the making of any such decision are the gravity of the offence and the risk which the temporary release would pose to the public. A decision to grant temporary release even for a short period such as to permit a prisoner to attend a family funeral would necessarily involve a consideration of any potential risk that that would have for the safety of members of the public. Such a consideration is incidental to the discretionary power and its purpose. It is not a decision on the sentence to be served. … Any such decision or policy on which it is based must serve the purpose or objects of the provision of the Act of 1960 only. It cannot be seen in any sense as converting a subsisting punitive sentence into some form of preventative detention.” (emphasis added)
Earlier, at para. 63, the Court had held:
“63 In the court’s view a life sentence imposed pursuant to s.2 of the [Criminal Justice] Act of 1990 is a sentence of a wholly punitive nature and does not incorporate any element of preventative detention.
64 It is a sentence which subsists for the entire life of the person convicted of murder. That person may, by virtue of a discretionary power vested in the executive, be temporarily released under the provisions of the relevant legislation on humanitarian or other grounds but he or she always remains liable to imprisonment on foot of the life sentence should the period of temporary release be terminated for good and sufficient reason.” (p.25-26)
53 It is clear, therefore, that although sharing a common source and many comparable features, the system for the administration of life sentences has diverged considerably between Ireland and the United Kingdom. The primary sentence for murder in both jurisdictions remains a life sentence, which meant that in Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637, Denham C.J. was able to say that there was no “incompatibility between the sentence received in England and the penalty prescribed by the law of this State for a similar offence”. However, there are divergences, particularly in the management of the sentence. The fixing of a minimum period in the United Kingdom has the effect that detention after that period, while still under a life sentence, is subject to a recommendation from the parole board, which itself is referable to only one criterion, and then by a negative standard: the prisoner cannot be released unless the parole board is satisfied that he or she no longer poses a risk to society. These are significant distinctions, which led both the High Court and the Supreme Court in Lynch and Whelan to distinguish the Irish regime from that in the United Kingdom. However, the similarities are also noteworthy. The sentence in both jurisdictions remains a life sentence. The references to tariff and punitive element are descriptive and colloquial rather than statutory; and the Irish regime does provide for consideration of risk to the public both on sentence and in the consideration of continued detention.
Preventive Detention in Irish Law
54 The focus in Irish law on the constitutional position in relation to preventive detention can be traced to the important decision of the People (Attorney General) v. O’Callaghan [1966] I.R. 501. As is well known, that case held that it was impermissible to consider a propensity to commit further crimes as a ground for the refusal of bail. The leading judgment was that delivered by Walsh J. The key portion of the judgment is at p. 516-517:
“Ground number 4 of the learned Judge, that is to say, the likelihood of the commission of further offences while on bail, is a matter which is in my view quite inadmissible. This is a form of preventative justice which has no place in our legal system and is quite alien to the true purposes of bail. (emphasis added)… In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.”
55 This is an important decision, although today it must be considered in light of the fact that the judgment is now reversed by the passage of the 16th Amendment of the Constitution in 1996, which inserted subparagraph 6 into Article 40.4:
“Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.”
It is, however, necessary to observe that the general statement in O’ Callaghan, upon which the appellant places most reliance, was made in the context of the principles applicable to bail. The case cannot be taken as establishing a principle that any question of protection of the public cannot be considered in the context of sentencing. It is common place, for example, for pleas in mitigation to refer to the absence of risk to the public posed by the accused, and not uncommon for sentencing judges to refer to the risk to the public as justifying a custodial sentence. As the matters referred to above show, risk to the public is considered when deciding on the temporary release of sentenced persons, and also on the question of the release of persons serving life sentences. Even in the context of bail, the principle was not absolute. The extracts contemplate that it could be permissible to deprive a person of his liberty on a belief that he might commit offences if left at liberty, in admittedly extraordinary circumstance carefully spelled out by the Oireachtas, to secure the preservation of public peace and order. The decision also contemplates that bail could be refused because of the likelihood of the accused person failing to turn up at trial, or interfering with witnesses. Refusal of bail on such grounds of objection necessarily involves elements of prediction and prevention.
56 In In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, Keane C.J. speaking on behalf of the Supreme Court said “that it has been a long established principle of our constitutional jurisprudence that the courts would not uphold what is known as “preventive detention”. In that case however, the Court expressly upheld the provisions of the Bill amending s.5 of the Immigration Act 1999, permitting the Garda Síochána to detain a person against whom a deportation order has been made for a period of up to eight weeks, in circumstances where the member of the gardaí with reasonable cause suspected that the person intended to leave the State or had destroyed his or her identity documents or was in possession of forged identity documents or intended to avoid removal from the State. In two of these instances, detention is permitted because it is anticipated what a person may do, and an order is made to prevent it from occurring. Another clear example arises under of the Mental Health Act 2001, a person falling within the definition of s.3 may be detained “where there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons”. (emphasis added)
57 As a result of this analysis, I think it can be said that the Irish and United Kingdom regimes for life sentences share many common features, and indeed it might be said that, in their essential character, they are very similar. Hogan J. in the Court of Appeal reminded himself of the observations of Lord Hope in the House of Lords in Pilecki v. Circuit Court of Legnica [2008] UKHL 7, that it must not be supposed that “it was the purpose of the Framework Decision to require member states to change their sentencing practices. The principle of mutual recognition indicates the contrary”. All of this, as Hogan J. put it at para. 18 of his judgment in the Court of Appeal, means that “in practice, [what happens in the UK] is probably little different from decisions which successive ministers for justice in this jurisdiction have taken in respect of persons convicted of murder and serving the mandatory life sentence”.
58 The Irish approach to these matters was aptly stated by Dunne J. in D.P.P. v. Daniels [2015] I.L.R.M. 99. Dunne J. stated, at pp.104-105:
“All sentences of imprisonment necessarily involve an element of preventative detention in the sense that when an offender is in prison they are not at liberty to commit other offences and in this way, a sentence of imprisonment offers protection to society from the possible commission of other offences by that individual. …”
She adopted with approval the statement of principle in the joint decision of the Australian High Court in Veen v. R (No. 2) (1988) 164 C.L.R. 465 (Mason C.J., Brennan, Dawson and Twohey JJ.), where it was stated at p. 473:
“It is one thing to say that the principle of proportionality precludes the imposition of a sentence beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention which is impermissible and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”
This statement was cited with approval in the Court of Criminal Appeal in People (DPP) v. Anthony McMahon [2011] 3 IR 774, and was quoted in the Court of Appeal by Hogan J. in Minister for Justice, Equality and Law Reform v. Craig [2015] IECA 89, which is the case that was initially joined with the current matter. It encapsulates a principle, which in Ireland has constitutional significance, that risk to the public can be a factor in sentencing and release but cannot be the sole object. The difference may be a matter of degree, but it is, however, a difference with constitutional significance.
59 While in the absence of a concrete case this is somewhat speculative, I am prepared to approach this case on the basis that the introduction in Ireland of a similar regime to that which now obtains in relation to the management of life sentences in the UK would not be permissible under the Irish Constitution. On this approach, while protection of the public may be a component of the sentence and consequent release decision, it would be impermissible to impose a sentence or a separate period of a sentence for purely preventive reasons, sometimes described as incapacitation. This is particularly so if, as under the UK regime, the offender is to be detained unless a parole board or other decision maker is satisfied that he does not pose a risk to the public, which given the nature of the inquiry might be a difficult standard to satisfy. It should also be noted that in D.P.P. v. Daniels, the DPP conceded the principle, and therefore there was no exploration of the precise justification for, and limits of, the prohibition on preventive detention in the context of sentence. However, this conclusion is not an end to the Court’s inquiry. It is clear that the position is more nuanced than the simple statement that preventive detention has no place in our legal system might suggest. The fundamental and difficult issue for an Irish court is whether that difference, and putative unconstitutionality, is, in the words of Brennan, so egregious, and such a fundamental defect in the legal system, or is something which departs “so markedly from the scheme and order envisaged by the Constitution” (Nottinghamshire) as to require a court to refuse to surrender a person under an EAW, either for trial, where conviction would lead to such a regime being imposed, or, as here, to serve a sentence imposed and managed under that regime.
Caffrey Considered
60 In addressing this question, the High Court judge and the majority of the Court of Appeal considered that this issue was resolved conclusively by the decision of the majority of this Court in Caffrey. In essence, if, notwithstanding the differences between the jurisdictions, one life sentence prisoner in the UK could be transferred to Ireland to serve his sentence here, another life sentence prisoner could be returned from Ireland to serve the remainder of his sentence there. The Caffrey case did involve close consideration of the United Kingdom regime for life sentences, but in a different statutory context. The particular question arose because the Irish legislation opted for a continued enforcement model. The question was whether a prisoner serving a life sentence in the UK could be transferred to Ireland, and his sentence continued and enforced in Ireland. The majority of the Supreme Court (Denham C.J., Hardiman and Macken JJ. concurring; Murray and Fennelly JJ. dissenting) held that the essential sentence imposed was a life sentence, which could be enforced in Ireland. As Denham C.J. observed at para. 26:
“The applicant was convicted for murder and sentenced in England to a mandatory sentence, imprisonment for life. This is, in fact, the same sentence as a court would impose on a conviction for murder in this jurisdiction, life imprisonment. The court in England, and in Ireland, has no discretion. It is a mandatory sentence. The primary necessary finding is that the sentence imposed in England was a mandatory sentence and was imprisonment for life.”(p.649)
At para. 29 Denham C.J, continued:
“In fact this mandatory sentence is similar to the sentence a person convicted for murder would receive in the State, imprisonment for life. It is a mandatory sentence in Ireland also. There is no incompatibility between the sentence received in England and the penalty prescribed by the law of the State for a similar offence.”(p.652)
The provisions as to tariff, risk and release were matters going to management of the sentence, but the sentence itself was the life sentence. The Transfer of Sentenced Persons Act 1995 (as amended) then required this sentence to be managed in accordance with Irish law. At para. 32:
“The applicant is serving a valid sentence of imprisonment for life, in Ireland. The management of that sentence is now governed by Irish law. The management scheme adopted in England is no longer relevant. Irish authorities could not apply the English law. It is inappropriate for the Irish State to make reference to any minimum period in the United Kingdom within which the applicant would be denied parole review. In this case, no issue of inappropriate considerations on the part of the State that detrimentally affect the applicant arise because the appellant was considered twice by the Parole Board before the twelfth year of his sentence, i.e. the Parole Board did not manage the sentence according to English practice, but managed his sentence in accordance with Irish law. I am satisfied that this is the correct approach in law to the management of the applicant’s life sentence.”(p.652)
While Murray and Fennelly JJ. dissented, they did so because they viewed the question of detention and risk as a matter going to the legal nature and effect of the sentence rather than its management. Such a sentence could not be administered in Ireland, at least without adaptation. The majority did not disagree with that analysis, if it was correct to view the tariff and subsequent release provisions as part of the sentence. For present purposes, however, it seems clear that the approach of the majority of the Supreme Court was that what might be described as the problematic aspects of (at least from the Irish Constitutional point of view) the UK sentences as managed were not parts of the sentence which the Irish system were obliged to enforce. Accordingly, the case does not amount to a decision that the life sentence as enforced and managed in the UK (as Mr. Balmer’s will be if he is surrendered) is compatible with the values contained in the Irish Constitution.
61 Taking this view of Caffrey, I cannot therefore agree with the High Court judge or the majority of the Court of Appeal that the decision in Caffrey is dispositive of this case. Instead, I agree with Hogan J., that Caffrey does not conclude that a UK sentence as managed in that jurisdiction is compatible with the Irish Constitution. The effect of the division between legal nature and effect, on the one hand, and management on the other, meant that those aspects of the UK sentence involving preventive detention were considered as part of the management of a life sentence. Since management of the sentence under The Transfer of Sentenced Persons Act 1995 would be carried out in accordance with Irish law, there was then no question of potential incompatibility with the Irish Constitution. The transfer of the prisoner, involving transfer of the management of his sentence, had the effect of curing or removing any potential incompatibility. It follows, therefore, that Caffrey did not decide that the UK life sentence in all its components was entirely compatible with the Irish Constitution. It is, therefore, not dispositive of this case. The fact that UK life sentence prisoners can be transferred to Ireland does not mean, by itself and without more, that a person must be surrendered to face or serve a UK life sentence. Nevertheless, Caffrey is helpful in resolving the issue for this Court insomuch as it analyses the legal nature of the UK life sentence as essentially similar to a life sentence in Ireland.
62 Further assistance can, in my view, be obtained from the decision of this Court in Minister for Justice, Equality and Law Reform v. Murphy [2010] 3 IR 77. That case dealt with an application for surrender under an EAW of a person convicted in the United Kingdom of rape and assault charges. The person in question had been sentenced to what was described as a “hospital detention order” and was to be detained indefinitely in a psychiatric hospital at the discretion of the Mental Health Tribunal and the Secretary of State. Both the High Court and this Court on appeal held that the individual could properly be surrendered under the EAW. It is right to observe that the specific issue there was that it was suggested that the hospital order was not an order for detention for the purposes of s.10 of the EAW Act. The decision does, however, consider the question of the compatibility of the preventive element of such a sentence with the Constitutional scheme.
63 A hospital order could be made by a Crown Court where it appeared to the court, having regard to the nature of the offence, the antecedence of the offender and “the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do”. The court could order that the offender be subject to a restriction order and detained in a hospital until duly discharged. At p. 90 of her judgment, Denham C.J. stated:
“47 A detention order arising outside the criminal process, or not relating to extraditable offences, could not be the subject of [surrender] under the Act of 2003. I would affirm the statement of the High Court Judge that a person who has been made the subject of a detention order solely in a mental health context, and who escapes from that detention, could not be sought to be surrendered by means of an European arrest warrant.
48 Similarly, I would distinguish the situation addressed in The People (Attorney General) v. O’Callaghan [1966] I.R. 501. That case arose on a bail motion where a prisoner had been returned for trial. The issue was whether the applicant could be held in preventative detention prior to his trial; it was submitted that if he were released on bail he might commit further offences. Walsh J. held that such detention would be a form of preventative justice which has no place in our legal system and is alien to the purposes of bail. The facts and issues of that case are entirely different to the situation addressed in this warrant where there have been convictions for serious offences and for which the appellant has been ordered to be detained.
49 Sentencing is a complex matter. All the facts and circumstances of a case require to be considered by a court, and then the court applies the law as appropriate. This may involve aspects of retribution, deterrence, protection, reparation and/or rehabilitation. A sentencing court considers the offence, the offender, the victim, all the circumstances of the case, and makes a decision according to the law. The law relating to sentencing is not identical in all Member States. In this case the law of the United Kingdom enables a sentence to be one of detention by way of a hospital order. Such a detention order apparently involves elements of protection for society.” (p.90) (emphasis added)
Peart J. in the Court of Appeal considered that this decision was helpful in considering the issue before the Court in this case, and I agree.
64 In the light of these observations, and the fact that the position in relation to detention and sentencing is rather more nuanced than the statement that it has no place in our legal system might suggest, I conclude that the regime as described by Ms. Nice BL, does not require an Irish court to refuse to surrender Mr. Balmer under s.37(1)(b). The regime for life sentences in the UK has considerable similarities to the scheme in this jurisdiction. Decisions on release are, as Hogan J. observed, in practice perhaps little different from those made in this jurisdiction. The Irish constitutional objection to preventive justice is more nuanced, particularly in the field of sentencing and release, than a statement of blanket incompatibility might suggest. The constitutional concepts of sovereignty and friendly cooperation with other nations means that Ireland is in general unwilling to seek to apply its constitution to another sovereign state or to object to the application by another friendly state of its own laws to crimes committed to or by its own citizens within its territorial jurisdiction. In the comparable case of surrender by an ECHR country to a non-Convention country, the ECtHR has held that due regard must be had to the fact that sentencing practices vary greatly between states, and it will, for example, be in only very exceptional cases that an applicant will be able to demonstrate that a sentence in a non-contracting state would be grossly disproportionate and thus contrary to the Convention. In the circumstances, I do not consider that the UK life sentence regime, even assuming it would not be permissible in this jurisdiction, should be considered to be a fundamental defect in the justice system so as to require that surrender must be refused under s.37(1)(b).
65 Since I have accepted much of the analysis of Hogan J. in the Court of Appeal but differ from him as to the result, it may be useful, for future application of the test in Brennan, to explain why I have come to a different conclusion on the resolution of the issue in this case. First, it is clear that Hogan J. reached his conclusion with considerable reluctance. As already observed, he acknowledged the force of the majority judgment, and stated at p. 38 that he reached his conclusion with no “enormous enthusiasm”. Hogan J. recognised that it was inconsistent with the philosophy behind the EAW system, and that it was not the intention of the drafters of the Framework Decision that sentencing practice in various Member States should have to change to accommodate the fundamental values of the requested state. Indeed, it is unrealistic to expect Member States to change their sentencing regimes as applicable to all offenders to accommodate those rare incidences where an offender absconds to Ireland. In those circumstances, the result will simply be the inability of the Member State to secure the surrender of the offender who will then have a limited immunity so long only as he or she remains in Ireland. That is an unattractive outcome, and it is understandable that Hogan J. so regarded it. Furthermore, the regime in the UK, as he observed, was not fundamentally different in practice from what might occur in Ireland. Again, it would be surprising, therefore, that in a system which tolerates and expects considerable differences between the practices in different Member States, that surrender would be refused between systems which are in large respects very similar, and even in their areas of divergence contain significant points of similarity.
66 It is clear that Hogan J. felt driven to refuse surrender because he considered there was a direct analogy with the decisions of this Court made under s.37(1)(a) of the EAW Act, in particular in Nolan, in respect of IPP sentences. At para. 37 of his judgment in Minister for Justice and Equality v. Craig [2015] IECA 89, he said:
“Of course, s.37(1)(a) of the 2003 Act is a parallel provision to s.37(1)(b), save that the former deals with the ECHR AND while the latter deals with the Constitution. It can nevertheless be said that, by direct analogy with the Supreme Court’s decision in Nolan, if the respondent were to be returned to face a substantive sentence which, if applied here, would contravene the Constitution, then in those circumstances likewise an order for surrender should not be made under s.37(1)(b) of the 2003 Act.”
I do not agree, however, that such an analogy is appropriate or consistent with authority or indeed with the principles outlined earlier in this judgment. When an issue under s.37(1)(a) arises in respect of surrender to another contracting state, there is no question of Article 29 requiring a degree of tolerance, or some relative test as approved by this Court in Brennan and Buckley. Unlike the Irish Constitution, the ECHR applies with full force in the requesting state. The only question, therefore, for the requested court, is whether the requesting state will comply with its own obligations under the Convention. The potential for international friction is further reduced by the existence of institutions which are entitled to report, and in the case of European Court of Human Rights, to determine, whether or not a regime is compatible with the dictates of the Convention. Furthermore, the Irish court is entitled to apply a presumption that the national court of the requesting state is best placed to make a determination as to compatibility, at least in the first place. Such a state has, after all, the obligation of conducting the trial and administering the sentence. It may be rare, therefore, for a national court to have to address the question equivalent to a determination under s.37(1)(a) of the EAW Act without the benefit of reports and decisions from the institutions of the Council of Europe or in circumstances where it is not entitled to rely, at least in the first place, on the existence of national courts bound to uphold the provisions of the Convention. However, where such an issue does arise, the question for the national court would be whether the particular provision in issue is a breach of rights guaranteed in the Convention. That is an entirely distinct test from the test posed under s.37(1)(b) of the EAW Act, which is whether what is proposed is both such a direct consequence of surrender, and would, if it occurred in Ireland, be so egregious in breaching the guarantees of the Irish Constitution that the Court cannot, consistently with its constitutional obligations, order surrender. This test was not applied by Hogan J. Instead, the false analogy with s.37(1)(a) of the EAW Act led the learned judge to simply address the question of whether the regime for life sentences in the UK would, if enacted in Ireland, be contrary to the Irish Constitution.
67 It is necessary to make some concluding observations. It is clear that in cases in which it arises, s.37(1)(b) of the EAW Act requires close analysis and sometimes fine judgments which can be markedly affected by the facts. I would venture to suggest that some of the difficulties with the UK regime, at least from the perspective of Irish constitutional law, are not merely the labelling and the colloquial description of detention as being purely preventive, but also follow from the fact that such detention is maintained unless the parole board is satisfied that a person poses no risk. Given the difficulty of any analysis of, and adjudication on, propensity, and given the nature of decision making, this can lead to a situation of prolonged incarceration for periods well in excess of what a person convicted of a similar offence in Ireland would expect. Length of sentence is a matter specifically addressed by the Framework Decision and is clearly a matter of some concern to Member States. This judgment only addresses the argument of principle that the UK tariff-setting system requires refusal of surrender under section 37(1)(b). Just as under the ECHR, it cannot be ruled out that exceptional cases on the facts may arise in which the courts may have to consider the obligation of surrender in the light of the length of the sentence served.
68 In that regard, it is also necessary to point out that Mr. Balmer was released from custody in the United Kingdom. What is involved here is recall by the authorities, although such recall will, if effected, be immediately referred to the Parole Board for its advice. The circumstances giving rise to the recall are identified in only the scantiest detail. The Court was provided with a copy of the licence revocation and recall to custody. The only information contained in the revocation notice is the general statement that “your licence has been revoked from the 2nd of March 2011 and you are recalled to custody because you have”, coupled with two ticked boxes stating “allegedly committed a further offence” and “poor behaviour”. The form also states that the Public Protection Casework Section will send the individual confirmation of the reasons for recall and information on how to make representations and/or appeal to the Parole Board, and that furthermore, he or she will be provided with the information on which the decision to recall was taken. This Court has no reason to doubt the decision to recall the appellant. However, there is no reason in principle why more information should not be provided to a court which is required to consider whether such an order for surrender is in accordance with both the Constitution and the Convention.
69 The conclusion I have come to in this case means that this Court does not have to address any issue of the interpretation of s.37 by reference to the Framework Decision, and in particular it is not necessary to here consider the impact of the decision of the Grand Chamber of the ECJ in Melloni v. Ministerio Fiscal (Case C- 399/11). Of course, it might be said that the obligation to give a conforming interpretation to implementing legislation as laid down in Pupino cannot permit a court to give an interpretation that is contra legem, and s.37 is apparently clear in its terms. This issue was not addressed in the course of argument, but it is something which the Court itself recognises. Issues may yet arise for the Court as to the interpretation to be given to section 37. It cannot be too readily resolved by invocation of undoubted principles of primacy, unity and effectiveness of European law since Article 6.3 of the Treaty of the European Union recognises fundamental rights resulting from constitutional traditions common to Member States as a general principle of that same European law. Furthermore, the fair trial guaranteed by Article 47 of the Charter of the European Union might be considered to extend to the process both in the executing state and in the trial state. In principal, the primacy and effectiveness of European law is not necessarily compromised by decisions to refuse surrender because of the impact of any such decision in the executing state on long established principles derived from fundamental values. This is a matter which may require careful consideration in an appropriate case, and indeed sensitive and respectful dialogue between national courts and the ECJ. It may also require to be addressed at national level since the terms of the Framework Decision are ultimately matters which can be determined at national level. I have thought it preferable, therefore, to address the question of any potential breach of the Constitution at the outset, since it is only if this Court considered that surrender would constitute a breach of the Constitution that the issue arises at all, and it would then become necessary to address these difficult and sensitive issues.
70 In its determination of the 20th of July 2015, [2015] I.E.S.C. DET. 34, the Court granted leave to appeal:
“Where a prisoner has been sentenced in another jurisdiction to a life sentence and has served the portion of the sentence described as consisting of the entirety of the punitive element of the sentence, in conformity with Article 40.3 and Article 40.4 of the Constitution is it possible to take any further step in this State to enforce an apparent remaining element of the sentence which is ostensibly that of prevention or deterrence?
Where a prisoner has been released on licence prior to the full expiry of their sentence and is sought to be recalled because of an apparent breach of licence, is it necessary, and to what extent is it required, to have a hearing prior to or immediately proximate to that recall for such ostensible deprivation of liberty to be in conformity with Article 40.4 of the Constitution and Article 5 of the European Convention on Human Rights?”(para. 18)
71 It follows from the discussion above that it is possible for this State to surrender, in accordance with the EAW, a person sentenced in another jurisdiction to a life sentence who has served a portion of that sentence described colloquially as consisting of the entirety of the punitive element of the sentence. In relation to the second issue, it is not necessary to speculate on what is required in the abstract. The Court is satisfied that the provision of information and the capability to review or appeal a decision to recall, both of which apply in this case, are sufficient to comply with any requirement of fair procedures under either the Constitution or the Convention.
In the circumstances I would dismiss the appeal.
Judgment of Ms. Justice Dunne delivered on the 12th day of May, 2016
I have read the judgment of O’Donnell J. in this matter and I agree with it. I want to add a few observations of my own.
The background to this matter is set out in the judgment of O’Donnell J. and it is not necessary to repeat all of the details of the background circumstances to any great extent, save to say that Michael Anthony Balmer was convicted on the 26th March, 1984 of the murder of his sixty two year old female neighbour on the 26th July, 1983. He was sentenced to life imprisonment for murder at Exeter Crown Court.
I want to compare and contrast the sentencing regime for murder in the United Kingdom with that of Ireland. In the United Kingdom, as in this jurisdiction, there is a mandatory sentence of life imprisonment for murder. The way in which a sentence in respect of murder is imposed in the United Kingdom is different to the way in which such a sentence is imposed in this country. As O’Donnell J. has explained in his judgment, a sentencing judge in the United Kingdom when imposing a life sentence may give a recommendation as to the minimum period which should elapse before the individual concerned can be released on licence as provided for in s. 1(2) of the Murder (Abolition of Death Penalty) Act 1965 of the relevant legislation in that jurisdiction:
“On sentencing any person convicted of murder to imprisonment for life the Court may at the same time declare the period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence under section 27 of the Prison Act 1952.”
The first point to note therefore is that as between the United Kingdom and Ireland there is no difference as to the sentence in respect of murder. In each country, the sentence provided for is life imprisonment. That is the punishment for murder. Thus, if Mr. Balmer had been convicted of murder in this jurisdiction, the sentence imposed upon him would have been a sentence of life imprisonment. The point of departure between the two countries comes from the provisions of the United Kingdom’s s. 1(2) of the Murder (Abolition of Death Penalty) Act 1965 set out above. It provided for what has become known colloquially as “the tariff”. In the case of Mr. Balmer, the minimum period recommended was a period of twelve years which was later increased to fifteen years by the Secretary of State as was then provided for under the law of the United Kingdom. It can be seen therefore that a life sentence is imposed upon a person convicted of murder in each jurisdiction but at the time of sentencing, the sentencing judge in the United Kingdom may fix a minimum period of time which must be served by the prisoner before he or she can be released on licence.
The Position in the United Kingdom
Ms. Amelia Nice, a barrister of the Bar of England and Wales, swore an affidavit in these proceedings explaining the terms used to describe the elements of such sentences in that jurisdiction. As she explained, the terms “tariffs” and “punitive element of the sentence” are used in section H of the European Arrest Warrant to explain the process for the review of a life sentence. She pointed out that these are not statutory terms but describe what is referred to in s. 28 of the Crime (Sentences) Act 1997 and Schedule 21 to the Criminal Justice Act 2003 as the “minimum term” and is a period of imprisonment which the offender has to serve before he can be considered for early release by the Parole Board. Thus, the minimum period of time to be served before the prisoner could be considered for release on licence came to be known in that jurisdiction as the “tariff”. It represented the full “punitive” period to be served. Thus as she explained:
“[L]ife sentences were often referred to as encompassing a ‘punitive’ period, represented by the tariff length and a ‘preventative’ period during which release and liberty on licence was dependent on the assessment of risk.”
The fixing of the tariff in the United Kingdom was previously carried out by the Secretary of State but as a result of a decision of the House of Lords in R (on the application of Anderson) v. Secretary of State for the Home Department [2002] UKHL 46, it was found that the fixing of the tariff by the Secretary of State was incompatible with the European Convention on Human Rights. Subsequent to that decision, legislation was introduced in the United Kingdom by means of the Criminal Justice Act 2003 which came into force on the 18th December, 2003. Since then, newly convicted offenders have had minimum terms set in open court by the trial judge. Provision was made in respect of existing prisoners in that legislation for those whose tariff had been set by the Secretary of State to apply to the High Court to have a new minimum term set. If no application was made the original tariff was the effective punitive period for the offender concerned.
Ms. Nice then proceeded to describe in her affidavit how those sentenced to life imprisonment for murder are released by way of a “life licence” issued under s. 28(5) of the Crime (Sentences) Act 1997. Release on licence is effected by the Secretary of State on the recommendation of the Parole Board. Ms. Nice in her affidavit explained that the licence remains in force for the rest of the individual’s life and may be revoked and the licensee returned to prison at any time if he/she no longer represents a safe enough risk to remain in the community. Mr. Balmer was not released on licence until the 18th February, 2011, some twenty seven years after he had been sentenced to life imprisonment. Under the provisions of the Crime (Sentences) Act 1997, a licence can be revoked at any time and the licensee recalled to prison to continue to serve his or her life sentence. Such revocation can take place at any time on the recommendation of the Parole Board. When someone is recalled, the case must be referred to the Parole Board. Once the licence has been revoked, the offender is unlawfully at large until returned to custody. Ms. Nice in her affidavit added:
“It must be shown that there is a risk of danger to the public before recall is likely to be agreed.”
After being recalled an offender will be in prison until released by the Parole Board. The test for release is the same as it is for initial release. She then set out the relevant provisions of the Crime (Sentences) Act 1997 as follows:
“Section 28: duty to release certain life prisoners.
(1A) In this Chapter –
(a) references to a life prisoner to whom this section applies are references to a life prisoner in respect of whom an order has been made under subsection (2) of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 or a direction under subsection (5) of that section has been given or will be required to be given at the appropriate stage; and
(b) references to the relevant part of his sentence are references to the part of his sentence specified in the order or direction or, in the case of a life prisoner in respect of whom a direction under subsection (5) of that section has not been given but will be required to be given at the appropriate stage, the whole of his sentence,
and in this section “appropriate stage”, in relation to such a direction, has the same meaning as in subsection (6) of that section.
(1B) But if a life prisoner is serving two or more sentences –
(a) he is not to be treated for the purposes of this Chapter as a life prisoner to whom this section applies unless such an order or direction has been made or given in respect of each of those sentences or such a direction will be required to be given at the appropriate stage; and
(b) the provisions of subsections (5) to (8) below do not apply in relation to him until he has served the relevant part of each of them.
(5) As soon as –
(a) a life prisoner to whom this section applies has served the relevant part of his sentence; and
(b) the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless –
(a) the Secretary of State has referred to the prisoner’s case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time –
(a) after he has served the relevant part of his sentence; and
(b) where there has been a previous reference of his case to the Board; after the end of the period of two years beginning with the disposal of that references; and
(c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence;
and in this subsection “previous reference” means a reference under subsection (6) above or section 32(4) below.
(8) In determining for the purpose of subsection (5) or (7) above whether a life prisoner to whom this section applies has served the relevant part of his sentence, no account shall be taken of any time during which he was unlawfully at large within the meaning of section 49 of the Prison Act 1952.
Section 31: Duration and conditions of licences.
(1) Where a life prisoner is released on licence, the licence shall, unless previously revoked under section 32(1) or (2) below, remain in force until his death.
(2) A life prisoner subject to a licence shall comply with such conditions as may for the time being be specified in the licence; and the Secretary of State may make rules for regulating the supervision of any description of such persons.
(2A) The conditions so specified shall include on the prisoner’s release conditions as to his supervision by –
(a) an officer of a local probation board appointed for or assigned to the petty sessions area within which the prisoner resides for the time being;
(b) where the prisoner is under the age of 22, a social worker of the social services department of the local authority within whose area the prisoner resides for the time being; or
(c) where the prisoner is under the age of 18, a member of a youth offending team established by that local authority under section 39 of the Crime and Disorder Act 1998.
(3) The Secretary of State shall not include on release, or subsequently insert, a condition in the licence of a life prisoner, or vary or cancel any such condition, except –
(a) in the case of the inclusion of a condition in the licence of a life prisoner to whom section 28 above applies, in accordance with the recommendations of the Parole Board; and
(b) in any other case, after consultation with the Board.
(4) For the purposes of subsection (3) above, the Secretary of State shall be treated as having consulted the Parole Board about a proposal to include, insert, vary or cancel a condition in any case if he has consulted the Board about the implementation of proposals of that description generally or in that class of case.
(5) The power to make rules under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In relation to a life prisoner who is liable to removal from the United Kingdom (within the meaning given by section 46(3) of the 1991 Act, subsection (2) above shall have effect as if subsection (2A) above were omitted.
Section 32: Recall of life prisoners while on licence.
(1) If recommended to do so by the Parole Board in the case of a life prisoner who has been released on licence under this Chapter, the Secretary of State may revoke his licence and recall him to prison.
(2) The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.
(3) A life prisoner recalled to prison under subsection (1) or (2) above –
(a) may make representations in writing with respect to his recall; and
(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representation.
(4) The Secretary of State shall refer to the Parole Board –
(a) the case of a life prisoner recalled under subsection (1) above who makes representation under subsection (3) above; and
(b) the case of a life prisoner recalled under subsection (2) above.
(5) Where on a reference under subsection (4) above the Parole Board –
(a) directs in the case of a life prisoner to whom section 28 above applies; or
(b) recommends in the case of any other life prisoner,
his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation.
(6) On the revocation of the licence of any life prisoner under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.”
The Irish statutory regime in relation to the release of prisoners
This matter is dealt with in detail in the judgment delivered by O’Donnell J. in this matter. Nevertheless, it would be helpful to set out the Irish statutory provisions for the purpose of comparison. Thus s. 1 of the Criminal Justice (Temporary Release of Prisoners) Act 2003 (hereinafter referred to as the 2003 Act) provides as follows:
“1. The Criminal Justice Act 1960 is hereby amended by the substitution of the following section for section 2:
“2(1) The Minister may direct that such person as is specified in the direction (being a person who is serving a sentence of imprisonment) shall be released from prison for such temporary period, and subject to such conditions, as may be specified in the direction or rules under this section applying to that person –
(a) for the purpose of –
(i) assessing the person’s ability to reintegrate into society upon such release,
(ii) preparing him for release upon the expiration of his sentence of imprisonment, or upon his being discharged from prison before such expiration, or
(iii) assisting the Garda Síochána in the prevention, detection or investigation of offences, or the apprehension of a person guilty of an offence or suspected of having committed an offence,
(b) where there exist circumstances that, in the opinion of the Minister, justify his temporary release on –
(i) grounds of health, or
(ii) other humanitarian grounds,
(c) where, in the opinion of the Minister, it is necessary or expedient in order to –
(i) ensure the good government of the prison concerned, or
(ii) maintain good order in, and humane and just management of, the prison concerned, or
(d) where the Minister is of the opinion that the person has been rehabilitated and would, upon being released, be capable of reintegrating into society.
(2) The Minister shall, before giving a direction under this section, have regard to –
(a) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates.
(b) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto,
(c) the period of the sentence of imprisonment served by the person,
(d) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison,
(e) any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him relates,
(f) the risk of the person failing to return to prison upon the expiration of any period of temporary release,
(g) the conduct of the person while in custody, while previously the subject of a direction under this section, or during a period of temporary release to which rules under this section, made before the coming into operation of the Criminal Justice (Temporary Release of Prisoners) Act 2003, applied,
(h) any report of, or recommendation made by –
(i) the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned,
(ii) the Garda Síochána,
(iii) a probation and welfare officer, or
(iv) any other person whom the Minister considers would be of assistance in enabling him to make a decision as to whether to give a direction under subsection (1) that relates to the person concerned.
(i) the risk of the person committing an offence during any period of temporary release,
(j) the risk of the person failing to comply with any conditions attaching to his temporary release, and
(k) the likelihood that any period of temporary release might accelerate the person’s reintegration into society or improve his prospects of obtaining employment.
(3) The Minister shall not give a direction under this section in respect of a person –
(a) if he is of the opinion that, for reasons connected with any one or more of the matters referred to in subsection (2), it would not be appropriate to so
do . . .”
A decision by the Minister in relation to the temporary release of a prisoner serving a long sentence, including life sentences, is now made on the recommendation of the Parole Board.
Discussion
There are obvious similarities in relation to those sentenced for murder in the United Kingdom and in this jurisdiction. In each jurisdiction there is a mandatory life sentence. In each jurisdiction, a person sentenced to life imprisonment may be released at some stage in the course of the sentence. It is interesting to note that the release of a life prisoner in England and Wales is described in s. 28 of the Crime (Sentences) Act 1997 as a duty of the Secretary of State. In other words, it appears that once the recommendation to release is made by the Parole Board in the United Kingdom, the Secretary of State has a duty to release the prisoner. In each jurisdiction, the fact that a prisoner is released either on licence in the United Kingdom or on temporary release in this jurisdiction does not mean that the sentence is spent. A life sentence is for life and just because the prisoner serving the life sentence has been released does not mean that the prisoner cannot be recalled to continue serving the sentence or have his temporary release revoked.
It is relevant to note that under the United Kingdom’s Crime (Sentences) Act 1997 (at section 28), the Parole Board is precluded from giving a direction as to the release of a prisoner on licence unless “The Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.
In this jurisdiction the Minister before making a direction for the temporary release of a prisoner has to consider the matters set out in s. 2(2) of the Criminal Justice Act 1960 as amended by the 2003 Act. Not surprisingly, one of the matters to which consideration must be given is the “potential threat to the safety and security of members of the public should the prisoner be released”. This echoes the provisions in the neighbouring jurisdiction. Thus, it can be seen that in each jurisdiction, a “risk assessment” takes place before a prisoner is released.
The manner in which the system operates in this jurisdiction has been helpfully described in the judgment of O’Donnell J. herein by reference to a statement made by the then Minister for Justice in 2006, quoted in Lynch and Whelan v. Minister for Justice (High Court) [2008] 2 IR 142, at p. 170. I will only refer to one portion of that statement where it was said by the Minister in the passage quoted as follows (at p. 171):
“Even when released, life sentence prisoners remain subject to supervision indefinitely. This supervision is carried out on behalf of my Department by the Probation and Welfare Service. In all such cases there is the condition that the person released must be of good behaviour. If he or she comes to the attention of the authorities for any breach of temporary release conditions, he or she may be arrested without warrant and taken back into custody without the need for fresh proceedings and may be held in custody thereafter at my discretion.”
It can be seen therefore that there are a number of similarities in the manner in which those sentenced to life imprisonment for murder can be released at some point in the course of serving their sentence just as is the case in this jurisdiction. Thus, as we have seen, Mr. Balmer obtained his release on licence, some twenty seven years after his sentence was imposed.
Preventative detention
There are as I have just pointed out a number of similarities between the systems operating in both jurisdictions. However there are also some differences. One of those differences relates to the role of the Parole Board. In England and Wales, the Parole Board is a body operating on a statutory footing and, as I mentioned, once it directs the release of a prisoner under the provisions of the Crime (Sentences) Act 1997 it is the duty of the Secretary of State to release the prisoner. In this jurisdiction, the Parole Board has no statutory role and can only make a recommendation to the Minister for Justice. Accordingly, unlike the position in the neighbouring jurisdiction, the Minister is under no duty to accept the recommendation of the Parole Board. That difference aside, the other significant difference has to be in the way in which sentences of life imprisonment for murder are imposed in the United Kingdom. I have already described the tariff system in operation in that jurisdiction. Very detailed statutory provisions and practice directions set out and describe the factors to be considered in fixing the minimum period of the sentence to be served. As Ms. Nice pointed out in her affidavit the minimum period required to be served has come to be known in that jurisdiction as the punitive element of the sentence. After the minimum period has been served the period in respect of which the prisoner remains in custody has come to be known colloquially as the preventative element of the sentence. It is the fact that the latter part of such a sentence in the United Kingdom has come to be known colloquially as the preventative element that has led to the objection to the surrender of Mr. Balmer to the United Kingdom given that his release on licence has been revoked and he is unlawfully at large as far as that jurisdiction is concerned. Objection is taken to his surrender for, it is contended, a further period of preventative detention.
The issue of preventative detention has been considered in this jurisdiction in a number of decisions of the courts. Preventative detention, as an objective, has no place in the Irish criminal justice system. As a concept, preventative detention was first considered in the well known case of The People (Attorney General) v. O’Callaghan [1966] I.R. 501. In the recent decision of this Court in the case of The People (Director of Public Prosecutions) v. Daniels [2014] IESC 64, delivering the judgment of the Court, I considered the law in this jurisdiction in respect of preventative detention. It has long been accepted that preventative detention by way of imprisonment is not constitutionally permissible. That was a case in which a young man had been sentenced to life imprisonment for the attempted murder of a young girl. The argument was made in that case that it could be inferred that, when viewed objectively, the sentence imposed in that case should be interpreted as including a preventative component. As such it was contended that the sentence was constitutionally impermissible. An authority had been cited in that case in relation to sentences imposed for burglary in which the trial judge had expressly included a preventative component but on appeal, the sentences so imposed were set aside on appeal and reduced sentences were imposed. (See People (DPP) v Carmody 1988 I.L.R.M. 370.) In Daniels, I commented:
“Thus it seems to me that it can be clearly stated having regard to the passages cited from the authorities referred to above that an individual being sentenced must be sentenced for the offence or offences before the Court and not on the basis that the sentence or any part of it is designed to prevent the commission of further offences in the future by that person. All sentences of imprisonment necessarily involve an element of preventative detention in the sense that when an offender is in prison, they are not at liberty to commit other offences and in this way, a sentence of imprisonment offers protection to society from the possible commission of other offences by that individual. However, the sentence imposed should not be longer than is necessary to punish the offender for the offence or offences concerned. The matter is well put in a joint decision of the Australian High Court, R v Veen (No.2) (1988) 164 CLR 465, (Mason CJ, Brennan, Dawson and Toohey J[J)], where it was stated at p. 473:
‘It is one thing to say that the principle of proportionality precludes the imposition of a sentence beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. A distinction in principle is clear between an extension merely by way of preventive detention which is impermissible and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.’”
Having referred to that passage I concluded:
“Thus, preventative detention as an element of sentencing above and beyond what is appropriate to the particular offences or offences having due regard to the personal circumstances of the offender is not permissible.”
That case involved the imposition of a sentence of life imprisonment in circumstances where the particular sentence was not mandatory. I commented in that case:
“When a sentence imposed on an individual is a proportionate sentence having regard to the seriousness of the offence and the personal circumstances of the offender, it could not be said that the sentence imposed was one which contained an element of preventative detention even in the exceptional circumstances that a maximum sentence has been imposed notwithstanding the existence of some mitigating circumstances. Some offences are so grave that a maximum sentence will be the appropriate sentence. If a sentence is excessive having regard to the nature of the offence and the circumstances of the accused person, then the sentence will be wrong in principle and will be set aside. If a sentence is expressly stated to include an element of preventative detention, then, the sentence is likely to be set aside as pointed out in the case of Lynch and Whelan v. The Minister for Justice, Equality and Law Reform [2012] 1 IR 1. Great care must be taken by a sentencing judge to have regard only to the factors which have been identified over the years as being appropriate to take into account, such as deterrence, protection of society, retribution, reparation and rehabilitation. Preventative detention is not one of those factors. I have already referred to the well known passage from the judgment of Walsh J. in O’Callaghan and would reiterate the point made by him that a person cannot be punished in respect of any matter upon which he has not been convicted or that anyone should be deprived of their liberty upon the belief that he or she will commit further offences if left at liberty.”
What bearing does the conclusion in Daniels have for the purpose of this case? It was argued on behalf of Mr. Balmer that as the sentence of life imprisonment imposed on him included what has come to be described as a preventative element that such a sentence is one which in this jurisdiction would be constitutionally impermissible.
I think it is worth recalling how it came to be decided that preventative detention was first found to be constitutionally impermissible. The issue arose in the case of O’Callaghan referred to above in which Mr. O’Callaghan had been refused bail on the grounds that there was a likelihood that he would commit further offences while on bail. Walsh J., at page 516 of the judgment in that case, stated:
“Ground number 4 of the learned Judge, that is to say, the likelihood of the commission of further offences while on bail, is a matter which is in my view quite inadmissible. This is a form of preventative justice which has no place in our legal system and is quite alien to the true purposes of bail. . . .
In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.”
The position in relation to bail has of course been changed by virtue of a constitutional amendment in 1996 but it is worth remembering that the origin of the decision in that case which identified the fact that preventative detention was not constitutionally permissible was the fact that the Court in that case was dealing with a person who was entitled to the presumption of innocence and where the individual concerned was going to be deprived of their liberty solely on the basis of a belief that he would commit further offences if left at liberty. That is a far cry from the circumstances of this case. This case concerns a man who has been convicted of the most serious offence in the criminal calendar. The punishment for murder in this jurisdiction and in the United Kingdom is a mandatory life sentence. The courts have no discretion in relation to the sentence to be imposed. In practical terms, there is no difference between the sentence imposed in the United Kingdom for murder and the sentence imposed in this jurisdiction. The fact that the sentence imposed in that jurisdiction is structured differently does not change that. In the United Kingdom, the provisions of the Crime (Sentences) Act 1997 recognise that those sentenced to life imprisonment for murder are capable of rehabilitation and at some stage in the course of serving their sentence, provided the statutory criteria are met, may be released. The sentence to which they are subject does not expire but remains and they continue to be under supervision. In this country, the position is the same. Having regard to the possibility of rehabilitation, the prisoner sentenced to life imprisonment for murder may be considered for temporary release at some stage in the future. If a prisoner is released on temporary release in this jurisdiction, they remain subject to the sentence of life imprisonment and are under the care and supervision of the Probation Service. The only difference of significance in the regimes operative in each jurisdiction is that in the United Kingdom, when sentencing a prisoner to life imprisonment, the sentencing judge may fix the minimum term of imprisonment to be served before the prisoner can be considered for release by the Parole Board. In each jurisdiction the question of whether or not a prisoner should be released is subject to a consideration of certain criteria and, common to both jurisdictions, one of the criteria that must be considered is the question of public safety or protection. I repeat what has been said previously in Daniels that all sentences of imprisonment necessarily involve an element of preventative detention and that in this way a sentence of imprisonment offers protection to society from the possible commission of other offences by that individual.
There are a number of observations to be made at this point. When a prisoner in this jurisdiction who is serving a life sentence is released, he or she is released on terms including supervision by the Probation Service, a requirement to be of good behaviour and such other conditions as may be appropriate. The statutory criteria to be considered before release is granted have been set out above. One of those criteria includes the consideration of the potential threat to the safety of the public if the prisoner is granted temporary release. It could hardly be suggested that a person was entitled to be granted temporary release if the prisoner concerned did not meet the criteria set out in the 2003 Act. For example, if the prisoner whose release was under consideration posed a threat to the safety of the public, could it really be suggested that the prisoner serving such a sentence should be entitled to temporary release? Take the case of someone who has been granted temporary release. Could it be suggested that the temporary release granted to such a prisoner could not be revoked if it was found that the prisoner was in breach of the terms of the temporary release? More to the point could it be said that returning them to prison at that point in time was returning them to a form of preventative detention? I think the answer to that question must be no. It has to be borne in mind that such a prisoner is still subject to the term of imprisonment imposed. That term is a mandatory life sentence. It does not end by virtue of the fact that someone has been released on temporary release. The prisoner always remains subject to the sentence. The fact that someone released on temporary release can be returned to prison does not turn the subsequent period of detention into a form of preventative detention. In this context, it is worth recalling what was said by Murray CJ in Lynch & Whelan v Minister for Justice [2012] 1 IR 1,at p. 25:
“In Dowling v Minister for Justice [2003] 2 IR 535, Fennelly J. (nem diss) cited with approval Murphy J in Ryan v Governor of Limerick Prison [1998] I.R. 198 to the following effect at p. 541:-
‘The temporary release is a privilege or concession to which a prisoner in custody has no right and indeed it has never been argued, so far as I am aware that he should be heard in relation to any consideration given to the exercise of such a concession in his favour. That being so, it seems to me the only right of the applicant or nay other person in custody is to enjoy such temporary release as may be granted to him for whatever period is allowed and subject to such conditions as are attached.’…
In the same case, Murray J., in a judgment with which other members of the court also agreed, stated at p.538:-
‘It follows that the temporary release of a prisoner before the sentence imposed by a court has expired is a privilege accorded to him at the discretion of the executive. The liberty which a prisoner enjoys while on temporary release, being a privilege, is clearly not on a par with the right to liberty enjoyed by an ordinary citizen…’”
There has been some change in the position in Ireland since the Parole Board came into existence but the fundamental point remains that release on temporary release is a privilege not a right and that the prisoner remains subject to the sentence which has not yet expired.
In the course of this judgment I have highlighted the similarities between the sentencing regime for murder in this jurisdiction and in the United Kingdom where the sentence imposed in each jurisdiction for this offence is the same. It is the administration of life sentences which has diverged between Ireland and the United Kingdom as pointed out by O’Donnell J. in the course of his judgment. Thus as he observes in paragraph 53 of his judgment:
“The primary sentence for murder in both jurisdictions remains a life sentence which meant that in Caffrey v. Governor of Portlaoise Prison [2012] 1 I.R. 637, Denham C.J. was able to say that there was no ‘incompatibility between the sentence received in England the penalty prescribed by the law of the State for a similar offence’. However there are divergences particularly in the management of the sentence. The fixing of a minimum period in the United Kingdom has the effect that detention after that period, while still under a life sentence, is subject to a recommendation from the Parole Board, which itself is referable to only one criterion and then by a negative standard: the prisoner cannot be released until the Parole Board is satisfied that he or she no longer poses a risk to society. These are significant distinctions which led both the High Court and the Supreme Court in Lynch and Whelan to distinguish the Irish regime from that in the United Kingdom.”
Even though there is a divergence in the administration of life sentences between the two jurisdictions there are still similarities. The colloquial terms, “tariff” and “punitive element” describe the sentence as imposed in the United Kingdom but such terminology is not statutory. In each jurisdiction, prisoners may be considered for release in the course of their sentence with the view to their rehabilitation and re-integration into society. A risk assessment is one of the factors to be considered in each jurisdiction. In this jurisdiction, according to the statement of the Minister referred to previously, the situation is that a period of seven years must be served by the prisoner concerned in this jurisdiction before consideration can be given to release on the advice of the Parole Board. In that statement it was said by the Minister (at p. 170):
“The Parole Board’s principal function is to advise me in relation to the administration of long-term prison sentences. This, of course, includes persons serving life sentences for murder who are eligible to have their cases reviewed by the Board after seven years. Sometimes the timeframe for the first review of a life sentence prisoner by the Parole Board after a seven year period has led – wrongly – to an assumption that life sentence prisoners are then released. This is entirely without foundation.”
It must be borne in mind, as pointed out by Murray C.J. in the passage cited above, that the prisoner does not have a right or entitlement to temporary release. What is permitted is a consideration of whether it is appropriate to consider the temporary release of the prisoner having regard to the statutory criteria. If those criteria are not met, then the prisoner will not be released. Murray C.J., in Lynch and Whelan , described the way in which the exercise of the power to grant temporary release under s. 2 of the Act of 1960 was considered as follows (at p. 27):
“Inevitably two of those considerations which ought to be taken into account in the making of any such decision are the gravity of the offence and the risk which the temporary release would pose to the public. A decision to grant temporary release even for a short period such as to permit a prisoner to attend a family funeral would necessarily involve a consideration of any potential risk that that would have for the safety of members of the public. Such a consideration is incidental to the discretionary power and its purpose. It is not a decision on the sentence to be served. Refusing temporary release is a decision not to grant a privilege to which a prisoner has no right. Any such decision or policy on which it is based must serve the purpose or objects of the provision of the Act of 1960 only. It cannot be seen in any sense as converting a subsisting punitive sentence into some form of preventative detention.”
Accordingly, a prisoner sentenced to life imprisonment not granted temporary release by the Minister following a consideration of the criteria under s. 2 of the 1960 Act does not have his sentence thereafter converted into a form of preventative detention.
It is undoubtedly the case that the point at which the two systems diverge is in the administration of the life sentence. I bear in mind what has been said by O’Donnell J. at paragraph 59 of his judgment as to the approach in this case, namely on the basis that the introduction in Ireland of a similar regime to that which now obtains in relation to the management of life sentences in the U.K. would not be permissible under the Irish Constitution. He went on to say that:
“The fundamental and difficult issue for an Irish court is whether that difference, and putative unconstitutionality, is in the words of Brennan so egregious, and such a fundamental defect in the legal system or is something which departs ‘so markedly from the essential scheme and order of the Constitution’ (Nottinghamshire) as to require a court to refuse to surrender a person under a European Arrest Warrant, either for trial where conviction would lead to such a regime being imposed, or as here to serve a sentence imposed and managed under that regime.”
Bearing that in mind I cannot see any basis for saying that the regime adopted in the United Kingdom gives rise to such egregious circumstances as to amount to the denial of fundamental or human rights as described in Minister for Justice v. Brennan [2007] 3 IR 732 at page 743. The sentence imposed for murder in each jurisdiction is the same. The factors taken into account in considering the possible release of a prisoner are similar. The Framework Decision in respect of the European Arrest Warrant noted at Recital 10 that :
“The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.”
It is a trite observation that there are many differences in the way in which the trial process works in the Member States of the European Union. Equally, there are many differences in the sentencing regimes operated in the Member States. For example, in this country, a person is entitled to trial by jury save for certain exceptions provided for in the Constitution. Not every Member State operates a system of trial by jury. While a trial in this jurisdiction without a jury would not be constitutionally permissible save as provided for in the Constitution, the fact that legal systems in other Member States do not provide for trial by jury does not mean that an individual facing trial in such Member States cannot be surrendered to that State by reason of that fact. (See Minister for Justice v Brennan [2007] 3 IR 732 at p. 744.) It is only in the case where it is established that surrender would lead to a denial of fundamental or human rights such that it is necessary to consider a refusal of an application for surrender as pointed out by Murray CJ in that case. He considered that in egregious circumstances such as a clearly established and fundamental defect in the system of justice, a refusal may be necessary.
The operation of the sentencing regime in the United Kingdom to which Mr. Balmer was subject, is not in my view, something that could be classified as a clearly established or fundamental defect in the system of justice in the United Kingdom such that the application for surrender should be refused. For that reason, it seems to me that the surrender of Mr. Balmer under the European Arrest Warrant must taken place. In the circumstances I would dismiss the appeal.
Minister for Justice and Equality v WB [2016] IECA 347
Judgment delivered on the 21st day of November, 2016 by Mr. Justice Edwards
Introduction
1. The appellant is the subject of a European arrest warrant dated the 16th of December 2014 on foot of which the Kingdom of Sweden seeks his rendition for the purpose of prosecuting him for the offence of rape. Having been arrested in this jurisdiction of foot of the said warrant, the appellant opposed in the High Court the making of a surrender order with respect to him on the grounds, inter alia, that his surrender would place him at real risk of an egregious breach of his fundamental rights. It was specifically contended that in the circumstances of his case his surrender was prohibited by s. 37 of the European Arrest Warrant Act 2003 (the Act of 2003), and more particularly by s. 37(1)(a) and (b) of that Act, because Sweden does not have a bail system that leans against pre-trial incarceration unless it is absolutely necessary. Indeed it was contended that under Swedish law there is, in the case of serious offences, effectively a presumption in favour of pre-trial detention, rather than the reverse, and it was apprehended as a matter of very high likelihood that, if surrendered, the appellant would be placed in pre-trial detention immediately upon his return, notwithstanding his presumption of innocence and the absence of evidence tending to suggest that he was either a flight risk or likely to interfere with witnesses.
2. The High Court did not uphold the appellant’s objections to his surrender and on the 20th of January 2016 made an order pursuant to s. 16(1) of the Act of 2003 directing that the appellant be surrendered to such person as was duly authorised to receive him on behalf of the Kingdom of Sweden. In a reserved judgment delivered on the same date Donnelly J gave detailed reasons for the court’s decision.
3. By a further order also made on the 20th of January 2016, the High Court (Donnelly J) pursuant to s. 16(11) of the Act of 2003 certified that its said decision, and order to surrender the appellant, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal.
4. The point of law so certified was the following:
“Does the Swedish system of pre-trial release which requires that where there is probable cause that a person is suspected of a serious crime that he or she will remain in custody unless it is obvious that this is not necessary and where Swedish law requires a weighing up of the detriment to the suspect and other interest as against detention amount to such an egregious violation of human rights that the surrender ought to be refused as a result?“
The relevant facts
5. The authorities in the issuing state maintain that the appellant, an Irish citizen, raped a woman in Sweden in November 2012, while he was temporarily living and working in that jurisdiction. The applicant has deposed in an affidavit sworn for the purposes of these proceedings on the 28th of April 2015, that when he left Sweden he was unaware of any criminal investigation in Sweden but learned of it in late 2013 when he was contacted by Gardaí who had received a mutual assistance request from the Swedish authorities and who were asking for his co-operation in that regard. In response to this request the appellant attended voluntarily at a local Garda Station on the 17th of January 2014 with his solicitor where he was interviewed for some three hours during, or following, which he provided a lengthy voluntary statement to Gardai.
6. In his affidavit sworn for the purposes of the proceedings before the High Court the appellant exhibited a letter from the inspector of An Garda Síochána in his local area. The inspector stated that the respondent cooperated with their enquiries as part of a mutual assistance request from the Swedish authorities and that he furnished a detailed account and statement to that effect. The inspector also stated that as a result of the cooperation given by the respondent, the enquiries were completed as expeditiously as possible.
7. Subsequently the Swedish authorities issued their European arrest warrant on the 16th of December 2014, which was based upon a domestic detention order of Attunda District Court dated the 26th of November 2014.
8. At the contested surrender hearing the High Court had before it the aforementioned affidavit of the appellant, in which he also deposed that he had been at all times cooperative with the European arrest warrant process and that he met Detective Sergeant James Kirwan on 6th February, 2015 in order to execute the warrant. He stated that he has no wish to frustrate the criminal investigation in Sweden. He had given his cooperation to it from the earliest stage and had hidden nothing.
9. In addition, the High Court had before it an affidavit of Torben Setterlund, a public defence counsel in Sweden, sworn in these proceedings on the 4th of May 2015. In it, Mr Setterlund had stated, inter alia, that:
“If [W.B.] returns to Sweden, he will probably be remanded in custody. According to Swedish law a person who is on probable cause suspected of such a serious crime as rape shall remand in custody unless it is obvious that detention is unnecessary. There is no bail system in Sweden.”
10. The correctness of Mr Setterlund’s succinct précis of the position under Swedish law was subsequently confirmed in additional information furnished by the Swedish public prosecutor in response to a query raised by the Irish Central Authority. She stated in a letter to the Irish Central Authority dated 25th of June 2015 that:
“The answer to your question is that there is no bail system or an equivalent system in Sweden. The description Mr [W.B.]’s public defense has left is correct, i.e. when someone is on probable cause suspected to such a serious crime as rape he/she shall remain in custody unless it is obvious that detention is unnecessary.”
11. The official record and order of Attunda District Court arising from the proceedings before on the 26th of November 2014 was exhibited, in the Swedish language, with the said affidavit of Torben Setterlund. A translation of it was exhibited with the appellant’s own affidavit. This document records that the appellant had been summonsed to appear at a remand hearing to be held on that date in response to a request by the public prosecutor that he be detained on suspicion of aggravated rape. He failed to appear in person, as he was required to do, although a defence lawyer assigned by the court, the said Torben Setterlund, appeared on his behalf. This was the third occasion upon which the appellant had failed to appear in person, the matter having been previously adjourned both on the 6th of November 2014 and on the 13th of November 2014 due to his non attendance. The Attunda District Court, having heard the appellant’s lawyer, declared itself satisfied that there had been no lawful impediment to the appellant’s attendance and that he had not provided a valid reason for his non-attendance. In the circumstances the court ruled that it would proceed to hold the remand hearing in his absence.
12. The document further notes the submissions made by the lawyers on both sides at the remand hearing, which was held in camera, and then records the decision of the court, which was announced in open court, which was to remand the appellant in custody.
13. It further records the court’s reasons for doing so under the heading “Probable Cause for Detention”, as being that:
“1. There is a risk that [W.B.] will abscond or otherwise evade legal proceedings or a sentence;
2. There is a risk that [W.B.] will, through removal of evidence or in other ways, obstruct the investigation of the case;
3. For this crime no sentence milder than two years of imprisonment has been specified, and it is not obvious that reasonable cause for detention is lacking.
For the presently accounted judgement, [W.B.]’s failure to appear before the hearing of the day was not without significance.”
14. It was confirmed in additional information dated the 20th of October 2015 furnished by the Swedish authorities in response to a query raised by the Irish Central Authority that Swedish law requires a weighing of the detriment to the suspect, or other opposing interests, against the need for pre-trial detention and a consideration of whether other less intrusive measures such as restrictions on travelling and reporting to the police might suffice instead.
15. In that context the record of proceedings before Attunda District Court, also records, under the further heading “Probable Cause for Detention to Consider”, that:
“The causes for detention outweigh the disruption that this action means for [W.B.] or any other opposing interest”
16. With the leave of the High Court, the appellant was allowed to introduce and rely upon an e-mail from Mr Sutterlund dated 30th October 2015 responding to the additional information dated 20th October 2015 from the Swedish public prosecutor. In that e-mail he stated:
“[i]t is under certain conditions possible for a Swedish court to let a suspect person to remain at liberty and instead oblige the suspect person restrictions of travel and oblige the suspect person to appear at the police station, but it is very uncommon that the Swedish courts use this possibility. Under Swedish law, a person who is on probable cause suspected of such a serious crime as rape shall remain in custody unless it is obvious that detention is unnecessary. In a Swedish court, a person who is on probable cause suspected of such a serious crime as rape can be released if he, for example, is attached to respirator in hospital. In Swedish courts, it is uncommon that a person who is on probable cause suspected of rape is released from custody pre-trial. In Swedish courts, it is only in exceptional cases that a person, who is not resident in Sweden and is on probable cause suspected of rape, will be released from custody pre-trial.”
17. The document comprising the official record and order of Attunda District Court concluded with information concerning “HOW TO APPEAL”, which made clear that the appellant could appeal the pre-trial detention order made in respect of him to the Swedish Court of Appeals, and that any such appeal would not be time limited. The appellant has not exercised his right of appeal to date.
18. The High Court also had before it for its consideration at the contested surrender hearing certain documents, exhibited to an affidavit sworn in these proceedings by the appellant’s solicitor, consisting of a June 2009 Report on Sweden by the Council of Europe’s Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (the 2009 CPT Report) and a fact sheet prepared by “Fair Trials International”, both of which offer criticisms of how suspects are treated at the pre-trial stage in Sweden in terms of having their liberty significantly restricted or alternatively being detained. It was conceded by counsel for appellant at the hearing before the High Court that the 2009 CPT Report only dealt with pre-trial restrictions on the liberty of remand prisoners in Sweden and did not deal directly with pre-trial detention.
The judgment of the High Court
19. The High Court judge comprehensively rehearsed the arguments put forward on behalf of the appellant, noting in particular the central contentions that the only interpretation that can be placed upon the Swedish legal system was that there is a presumption against liberty; that in those circumstances, not only was this a violation of Irish constitutional law, but it meets the criterion of an egregious breach of fundamental rights as required by the decision in Minister for Justice Equality and Law Reform v. Brennan [2007] 3 IR 732; that it was plain from the disclosed facts that, on any fair system, the respondent would be considered for pre-trial release; and that the detention order was made in circumstances where there was manifestly unfair weight attached to the risk of interference with witnesses.
20. The High Court noted the appellant’s reliance upon the fact sheet from Fair Trials International, and commented that this “represented the sole independent criticism of Swedish pre-trial detention law and practice relied upon” by the appellant. The High Court judge felt that important support for the criticism voiced by Fair Trials International was lacking in as much as the appellant’s counsel was unable to point to any adverse findings or even criticism from the European Court of Human Rights (E.Ct.H.R.) concerning the Swedish system of pre-trial detention, nor was he able to point to similar criticisms emanating from other Human Rights NGOs such as Amnesty International or Human Rights Watch, or from International Human Rights Treaty monitoring bodies, or from well recognised reliable sources of country information such as U.S. State Department Reports. The trial judge concluded in the circumstances that:
“The reference by Fair Trial International does not, therefore, amount to cogent evidence of a breach of fundamental rights by Sweden in respect of pre-trial release.”
21. The High Court judge nevertheless considered and had regard to the other evidence relied upon by the appellant. In doing so she carefully reviewed and took account of the principal legal authority drawn to her attention and relied upon by counsel for the appellant i.e., Attorney General v. P.O.C. [2007] 2 IR 421.
22. In that case the respondent (P.O.C.) had sought to resist extradition to the United States of America to face trial before a court in Arizona on charges of the alleged sexual abuse of a minor. He complained firstly that the delay in reporting the alleged offence and the specific prejudice arising therefrom in relation to the conduct of his defence meant that there was a real risk that he could not obtain a fair trial if extradited, and secondly that the bail regime in Arizona, United States of America, would amount under Irish law to an infringement of his constitutional right to liberty.
23. The specific problem in regard to the bail regime in Arizona was that the evidence in P.O.C. showed that the bail laws had recently changed in that state and that the alleged offences were now “non-bondable”. That change meant that, while P.O.C. would have had an entitlement to a bail hearing, he would nonetheless be incarcerated if the prosecution could show on the preponderance of the evidence that he was likely to have committed the offences.
24. The appellant in the present case contended before Donnelly J that O’Sullivan J. had decided in P.O.C.’s case that the bail regime in Arizona, was, per se, a flagrant denial of that respondent’s fundamental rights. Counsel for the respondent in the present case submitted that the P.O.C. case should not be read in that light.
25. Donnelly J noted that while O’Sullivan J in the P.O.C. case had concluded that the bail regime in the state of Arizona would, in the circumstances of the case, constitute an infringement of the applicant’s fundamental rights, his decision on whether or not to extradite had been rendered “in the context of the fairness of the respondent’s proposed trial”.
26. Donnelly J concluded that O’Sullivan J’s decision “does not appear to be a decision based upon the bail system per se that operated within Arizona.” In so far as the bail aspect of the case was concerned the crucial evidence that had influenced O’Sullivan J to come to the decision that he did was case specific, i.e., evidence that the applicant, if extradited, would be incarcerated for up to twelve months (and possibly much longer). Although there had been other evidence to the contrary from a Ms Leisch, the deputy county attorney for Maricopa County, Arizona, suggesting that P.O.C., would in fact receive a trial within 150 days if in custody, or 180 days otherwise, O’Sullivan J had ultimately concluded that Ms Leisch’s evidence could not be safely relied upon for reasons set forth at some length in a postscript to his judgment.
27. Donnelly J concluded in the circumstances that the interpretation urged upon the court by counsel for the respondent was therefore correct. The High Court judge stated:
“It does not appear to be a decision based upon the bail system per se that operated within Arizona. It was a decision directed towards the change in the bail system in the intervening time between the alleged offence and the extradition and the manner in which it would operate now to prejudice that respondent. I do not consider that the concluding comments in the postscript to the judgment were intended by O’Sullivan J. to convey anything other than he had earlier stated with regard to the bail regime and the delay.”
28. Extradition had not therefore been refused in the P.O.C. case because exposure to the bail regime in Arizona, would, per se, amount to a flagrant denial of that respondent’s fundamental rights. Rather it had been refused because of an concern on the judge’s part, which the applicant for extradition had been unable to allay, that P.O.C. faced a real risk of not receiving a fair trial, both in the light of prejudicial delay and case specific evidence that he could face pre-trial detention for up to twelve months and possibly much longer.
29. Donnelly J observed that the case of Attorney General v P.O.C. had in any event been decided before the Supreme Court had given it’s decision in Minister for Justice, Equality and Law Reform v Brennan [2007] 3 IR 732 and in which Murray C.J. had said [at paras 39-40] :
“39. The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective, such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non-minor offence. Rules of evidence may differ. The fact that a person would be tried before a judge and jury in this country for a particular offence could not in my view, be a basis for refusing to make an order for surrender solely on the grounds that in the requesting state he or she would not be tried before a jury. The exceptions which we have to the jury requirement, as in trials before the Special Criminal Court, acknowledges that a fair trial can take place without a jury even though it is constitutionally guaranteed for most trials in this country.
40. That is not by any means to say that a court, in considering an application for surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances, such as a clearly established and fundamental defect in the system of justice of a requesting state, where a refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused …”
30. Noting that the Supreme Court had recently reiterated these views in Minister for Justice and Equality v Buckley [2015] IESC 87, Donnelly J considered that “the issue is not whether the Swedish criminal procedure rules on pre-trial release would be found unconstitutional in this jurisdiction, but whether there is a clearly established and fundamental defect in a system of pre-trial detention in Sweden.”
31. Importantly, she subsequently added (at para 39): “I am quite satisfied that the reference by the Swedish judicial authority to the lack of a bail system in Sweden, does not mean that Sweden has no system of pre-trial release. There is such a system. The issue that remains to be determined is whether that system, and/or the operation of that system, amounts to a flagrant denial of rights.”
32. The High Court judge went on to consider and review the jurisprudence of the E.Ct.H.R. in the cases of Labita v. Italy (6th April, 2000, App. No. 26772/95, Reports 2000-IV), Kudla v. Poland (26th October, 2000, App. No. 30210/96, Reports 2000-XI) and Ilijkov v. Bulgaria (26th July, 2001, App. No. 33977/96), on which particular reliance was being placed by the respondent (the appellant here) in support of his case that presumptions against bail and reverse onus practices in the context of bail were contrary to the spirit and intention of Article 5 ECHR.
33. In this jurisprudence Article 5 ECHR has been repeatedly characterised by the E.Ct. H.R. as “a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases” e.g., in Ilijkov at para 85.
34. Further, in Kudla the E.Ct H.R. had said (at para 111) that:
“The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty.”
and in Ilijkov it had said (at para 84):
“84. The Court reiterates that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with Article 5 § 3 of the Convention (see the Letellier v. France judgment of 26 June 1991, Series A no. 207, §§ 35-53; the Clooth v. Belgium judgment of 12 December 1991, Series A no.225, § 44; the Muller v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, §§ 35-45; the above cited Labita judgment, §§ 152 and 162-165; and the above cited Jecius v. Lithuania, §§ 93 and 94).Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention (see the Contrada v. Italy judgment of 24 August 1998, Reports 1998- V, §§ 14, 16, 18, 23-30, 58-62), the existence of the concrete facts outweighing the rule of respect for individual liberty must be nevertheless convincingly demonstrated.
85. Moreover, the Court considers that it was incumbent on the authorities to establish those relevant facts. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention… .”
35. The High Court judge further noted and took account of reliance by respondent to the present appeal (the Minister) on the judgment of Peart J in the High Court in Minister for Justice, Equality and Law Reform v Ollsen [2008] IEHC 37 in so far as it dealt with Swedish pre-trial detention laws. In Ollsen the High Court judge had been satisfied that there was a system of pre-trial release in Sweden. Peart J had noted that there was no case against Sweden at the E.Ct.H.R. in which the regime had been subjected to criticism, much less an adverse finding. He had further opined that the designation of Sweden under s. 3 of the Act of 2003, as a country that has given effect to the 2002 Framework Decision, implied that this State recognises that their relevant criminal justice procedures conform to, at the very least, the minimum standards required by the ECHR.
36. Donnelly J noted that the respondent (the appellant here) sought to distinguish Ollsen on the basis:
“…that there appears to have been no analysis in the case of the applicable legal test which is at issue in these proceedings. Counsel submitted that while there was a reference in the judgment to the “weighing of the detriment” against the “reason for the detention”, the Swedish prosecutor does not appear to have adverted to the fact that this weighing up takes place in the context of a legal test which strongly presumes that detention is required.”
37. In her determination of the issues raised the High Court judge noted the rebuttable presumption in s. 4A of the Act of 2003, the consequence of which was that the burden rested on the respondent (the appellant here) to adduce evidence that there were substantial grounds for believing that he would be at real risk of being exposed to a flagrant denial of justice in the event of being surrendered. She expressed herself to be satisfied on the evidence that “Sweden operates a system whereby pre-trial release from detention may be ordered”, and that under Swedish law “where there is probable cause that a person is suspected of a serious crime such as rape, he/she shall remain in custody unless it is obvious that detention is unnecessary”. Swedish law further required “a weighing up of the detriment to the suspect and other interests as against the detention of the person.”
38. Donnelly J, in considering the case advanced by the respondent (the appellant here), was satisfied that “the only evidence adduced by the respondent is that release is uncommon and that it is probable that the respondent will be remanded in custody pending trial.”
39. The High Court was prepared to accept as an authoritative statement of the law a passage from ‘Human Rights and Criminal Justice’ (Emmerson and Others, 3rd Ed. 2012, Sweet and Maxwell) to which she had been referred, and in which the authors had stated:
“[a]ccordingly the Court has held that the proper construction of the second limb of Article 5(3) is that a person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify his continued detention. “Relevant” means falling within the recognised categories or reasons for withholding liberty…
In addition to being legally relevant, the ground for refusal of bail must be “sufficient”. That means they must be established objectively on the facts of, and by the evidence in, the particular case. The Court has stated on a number of occasions that the grounds relied upon by the domestic courts will not be regarded as sufficient if their application to the case in hand is “abstract” or “stereotyped” without reference to concrete facts or analysis.”
40. Nevertheless, in Donnelly J’s view the case law of the E.Ct H.R. made it clear that the “reasons” justifying detention pending trial cover the circumstance of the persistence of a reasonable suspicion or probable cause that he has committed a serious offence which is relevant to the risk of absconding, interfering with evidence or indeed of re-offending. In Sweden, the existence of probable cause that the person committed the serious offence was the basis for the deprivation of liberty applicable in the respondent’s case. The seriousness of the offence included the severity of sentence and was a relevant element in the assessment of the risk, amongst other matters, of absconding. Moreover, in Sweden probable cause was not a sole or automatic basis for determining the deprivation of liberty. The Swedish court was also required to consider whether it was obvious that such detention was unnecessary. There was nothing in the case law of the E.Ct.H.R that demonstrated that such a legal regime was, of itself, contrary to Article 5. If it is obvious that detention is unnecessary, the person must be released. It had also been established that there was a weighing of the detriment to the accused and the other interests as against the detention of the accused.
41. Donnelly J went on to state that while it had been suggested that Swedish law contained “a presumption against release”, this required to be considered in light of the justification for continued detention notwithstanding the presumption of innocence where there were specific indications of a genuine requirement of public interest which outweighed the rule of respect for individual. She opined that:
“The identification of those specific indications of genuine requirements of public interest can, as indicated in case law, include the calculation that being accused of an offence of a certain seriousness creates a presumption of a risk of absconding or tampering with evidence (e.g. para. 58 in Contrada where the ECtHR noted this type of presumption expressly contained in the Italian Criminal Code). Such a presumption can be understood not as a presumption against release, but more as an evidential presumption.”
42. The High Court judge concluded and held that, although the Swedish Criminal Code does not expressly state that the requirement to detain on probable cause for serious offences (unless unnecessary) is based upon a presumption of absconding or of interference with the evidence, she was satisfied in the circumstances of the case that the risk of absconding or of interference with the investigation/evidence had formed the basis of the decision making process by Attunda District Court in considering pre-trial release. The reference to detention on probable cause of having committed a serious offence was therefore directed towards the assessment of those genuine requirements of public interest. Furthermore, the weighing up of interests was an assessment of the sufficiency requirement required under Article 5 ECHR. In the circumstances Donnelly J. was not satisfied that there was evidence of a presumption against release in the Swedish Criminal Code in the sense that is outlawed under Article 5 of the ECHR. Rather, the finding of probable cause for a serious offence amounted to an evidential presumption that there was either a risk of flight or of interfering with evidence. That evidential presumption, however, was rebuttable and detention might not be ordered where it is unnecessary. Thus, the High Court was satisfied, the Swedish Criminal Code only provided for pre-trial detention where relevant reasons sufficient to justify it existed. Accordingly, no egregious breach (in the Brennan sense) had been established and the respondent (the appellant here) was not at real risk of being subjected to a flagrant denial of justice.
43. Finally, the High Court judge made it clear that she considered that she was also being asked, in effect, to review the fairness of the remand hearing before Attunda District Court and that, while the decision in Minister for Justice and Equality v Marjasz [2012] IEHC 233 had suggested the possible existence of a very limited jurisdiction to conduct such a review in rare and wholly exceptional cases, to do so would be wholly inappropriate in the circumstances of the present case. Donnelly J remarked:
“In so far as the respondent complains that the process leading to the detention order was unfair, this Court is bound by the presumption that the court hearing was fair and respected the respondent’s rights. Furthermore, that was a decision of first instance and carried with it a right of appeal. That right of appeal has not been exercised. I would also say that unlike the exceptional situation in Rostas, the issuing judicial authority has dealt with the issues as they have arisen in this case. Finally, the domestic decision itself is before the Court in this case and it is that decision that the Court has been asked to review. There is nothing on the face of that document that would cause this Court to be put on its enquiry that unfairness had occurred. It is not, therefore, appropriate that this Court would second guess the inferences drawn and conclusions reached on the materials and submissions placed before the Swedish court.”
The case made on appeal to this Court
44. The appellant contends quite simply that the High Court judge got it wrong, and in several respects. It was submitted that the judge erred in fact in stating that the only evidence adduced by the appellant was that release was uncommon and that a remand in custody was ‘probable’. The appellant contends that the evidence went much further and that it was to the effect that it is only in exceptional cases that a person, who is not resident in Sweden and is on probable cause suspected of rape, will be released from custody pre-trial.
45. It was further submitted that the relevance of the Attunda District Court’s decision of the 26th of November 2014 was not, as the High Court judge seemed to think, that the appellant should not be surrendered now, because of a previous procedural unfairness in his case. Rather, the case that was being made was that the Attunda District Court’s reasoning was tainted by the overarching principle that release can only be granted where obviously required. Thus, if the Attunda District Court had applied a fair test, there is a strong possibility that there would have been a different outcome. Crucially, it was submitted, the appellant will face the same unfair test if surrendered, and inevitably face the same outcome as before for the same reason.
46. Counsel for the appellant has argued that whether or not the Swedish system is properly characterised as giving rise to only an ‘evidential presumption’ against bail, the practical reality is that the test for securing pre-trial release is so stringent that it denies release to an entire class of accused persons, irrespective of the objective merits of their detention. It was submitted that the ‘weighing of interests’ undertaken by the Swedish Courts, and relied on by the High Court judge as evidence of proportionality in the process, is undermined by the overarching principle that release will only be granted if this is obviously required. This purported safeguard, it was contended, is therefore ineffective in securing a ruling on release that properly reflects a balancing of the individual and the public interests.
47. It was further submitted that the High Court judge erred in failing to have regard to the fact that the rational criteria for refusing release applied by the Swedish Courts, of flight risk and of interference with witnesses, are undermined by the constant and unjustifiable presumption that these criteria will be present in all serious cases to such an extent that release must be refused.
48. Finally, it was submitted that the Swedish system of pre-trial release effectively shifts the burden of proof onto an applicant, who must demonstrate that it is obvious that their release should be granted. This onerous obligation, says counsel for the appellant, negates the protections afforded by Article 40.4.1 of the Constitution and by Article 5 of the ECHR and therefore amounts to a flagrant breach of those protections.
49. It was suggested by counsel for the appellant that one might usefully ask: Is it fair that an accused would only be granted bail in exceptional circumstances, merely because of the nature of the offence itself? If, as the High Court held, such a principle does not amount to a flagrant breach of the Convention (because it meets the dual tests of relevance and sufficiency), it is submitted that it does still amount to a flagrant breach of our own constitutional right to liberty. In support of this argument counsel referred us to a dictum of Hedigan J in the case of Dumbrell v. Governor of Castlerea Prison (High Court, ex tempore, Hedigan J 6th August 2010) to the effect that, on occasion, the Constitution provides stronger protections to the individual than the ECHR:
“In my view, Irish law has set higher standards that those of the European Convention on Human Rights. It is fundamental to the Convention system that each country can take a much more rights as they choose but no less. In this case, Irish law provides stronger rights than those agreed by the 47 Convention signatories, some of whom from the former Soviet Union struggle with even those minimum rights. Ireland has higher standards”
50. We were further reminded that bail is routinely granted in this jurisdiction in rape, murder and terrorism cases. Where bail is refused, it is because the prosecution has convincingly demonstrated that detention is required in that particular case, and only after a rigorous demonstration of ‘concrete’ facts in support of detention. There can be no question of refusing bail to a class of individuals, or in any class of case, relying solely on formulaic and inevitably-present grounds. Such a process is so far removed from our own conception of the right to liberty that it amounts, it was submitted, to a flagrant breach of that right.
51. Responding to these submissions, counsel for the respondent concentrated for the most part on those arguments based on Article 5 ECHR, but also made clear that he would relying on similar arguments in reply to the arguments based on provisions of the Irish Constitution. Citing McKay v. The United Kingdom, Application No 543/03, [2006] ECHR 820 § 30, and Rio del Prada -v- Spain, Application No 42750, as his authorities, both of which were decisions of the Grand Chamber of the E.Ct.H.R., he contends that the key purpose of Article 5 is to prevent arbitrary or unjustified deprivations of liberty. In order to meet the requirement of lawfulness, a person’s detention must be “in accordance with a procedure prescribed by law”. This means that detention must conform to the substantive and procedural rules of national law. In that regard the E.Ct.H.R. stated in Rio del Prada -v- Spain:
“25. It is well established in the Court’s case-law on Article 5 § 1 that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the low, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Kafkaris, cited above, § 116, and M. v. Germany , cited above, § 90). The “quality of the law” implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness (see Amuur v. France , 25 June 1996, § 50, Reports 1996-111). The standard of “lawfulness” set by the Convention requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”.
52. It was submitted that Article 5(1 )(c) makes provision for pre-trial detention in circumstances where either there is reasonable suspicion that the person has committed an offence, or where there is a fear of flight or the further commission of offences. These provisions are not conjunctive and the jurisprudence relied on by the respondent (Labita v. Italy ; Kudla v. Poland and Ilijkov v. Bulgaria) involves cases where after a lengthy period of pre-trial detention the balance may move away from reasonable suspicion being sufficient (along with the other factors) to justify an ongoing detention. It was submitted that there is nothing in this case to suggest that any pre-trial detention that the appellant may face will be, or is likely to be, unduly lengthy.
53. Further, it was submitted that the High Court judge was correct in finding that the task faced by the trial court was not to seek to overlay the Swedish justice system with our constitutional requirements in order to consider the case before it, and that the principles as established in the case of Minister for Justice, Equality and Law Reform v. Brennan set out the appropriate test to be applied. Counsel submitted that the test to be applied by the court was fully and correctly stated by the High Court Judge in paragraph 33 of her judgment. (See quotations at paragraphs 29 – 31 of this judgment).
54. Counsel for the respondent submitted that differences in approach as between the Irish Courts and the Swedish Courts with regard to the issue of bail do not amount to a flagrant breach of the right to liberty and are not sufficient to warrant the refusal of surrender, and that the High Court, in looking at any factual differences was entirely correct in finding that the appellant did not overcome the “truly significant hurdle” required to enable the court to make a finding that his surrender was prohibited on a fundamental rights basis.
55. It was further submitted that that the High Court judge’s findings of fact in relation to the impact of any differences not amounting to an egregious breach of fundamental human rights are a binding factual finding, and do not amount to an issue of law for the consideration of this Court. It was also submitted that in the question posed by the appellant, the effect of the appeal being brought is to ask this Court to substitute its own view of the facts for that of the High Court.
56. It was submitted that it was clear from the record of the remand hearing before Attunda District Court on the 26th November 2014 that the appellant, who was not present by his own choice, was afforded a full hearing in which both the prosecutor and the appellant’s lawyer, respectively, had the opportunity to make, and in fact made, submissions on the relevant issues of fact and law. Accordingly, the decision rendered, in the absence of any evidence to the contrary, must be presumed to be one where due consideration was given to the facts of the case and the applicable law. Although the appellant had sought to assert that while the hearing had the appearance of having been conducted according to a rational set of considerations closer examination revealed that that was not in fact the case, counsel for the respondent submitted that there was nothing by way of evidence had been put before the High Court to support that assertion.
57. It was submitted that the High Court judge was correct in her view that the submissions advanced to her on behalf of the respondent (the appellant here) amounted to a request that the Irish High Court would substitute its view for that of the Court in Sweden as to the necessity for pre-trial detention. For the High Court judge to have engaged, as she was in effect being invited to do, in her own weighing of the evidence that had been before the Attunda District Court, would have required her to trespass into an area which was entirely the preserve of the Swedish Court, and in respect of which she had no jurisdiction to conduct any review. This, it was submitted, would be a negation of the principle of mutual recognition, and also contrary to the presumption, arising from the trust and confidence that exists between the parties to Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/J.H.A.), O.J. L190/1 of 18.7.2002 (“the Framework Decision”), that the principles of a fair hearing were adhered to by the courts of the issuing member state in any proceedings leading to a domestic arrest warrant or order of detention on foot of which a European arrest warrant is based. It is also a matter of significance in this regard, counsel for the respondent urges upon this Court, that the decision on pre-trial detention is one which can, in any event, be re-visited and appealed before an appeal court in Sweden. The appellant has not, however, lodged any appeal.
58. Counsel for the respondent submits that in so far as the appellant has contended that there exists in Swedish law what is described as “a constant and unjustifiable presumption” that the criteria of flight risk and interference with witnesses are present in all serious cases “to such an extent that release must be refused”, this was not borne out by the evidence before the High Court. He submits that that the High Court judge was entitled to make the ruling that she did. and to rely on the presumptions in place with regard to Sweden’s compliance with the ECHR.
Analysis and Decision
59. I agree with counsel for respondent that the High Court judge was correct in concluding that she was bound by the findings of fact by Attunda District Court in so far as flight risk and risk of interference with witnesses was concerned. It is a matter for the Swedish courts as to how they assess and rate such risk and the Irish High Court, faced with a request to execute a European arrest warrant based on a detention order made by a Swedish court, which has engaged in such an assessment and rating according to their own criteria, has no entitlement to review the substantive underlying domestic decision.
60. The case before the High Court, and also before this Court, was presented on two distinctly different bases. First, it was contended that the appellant’s surrender is prohibited under s. 37(1)(a) of the Act of 2003 as amended because it would be incompatible with the State’s obligations under the ECHR. Secondly, and in the alternative, it was contended that the appellant’s surrender is prohibited under s. 37(1)(b) of the Act of 2003 as amended because it would constitute a contravention of a provision or provisions of the Constitution of Ireland. These alternative claims require to be approached separately and differently.
61. Dealing with the s.37(1)(a) objection in the first instance, the correct approach to such an objection was described by O’Donnell J in his recently delivered judgment in the Supreme Court in the case of Minister for Justice and Equality v Balmer [2016] IESC 25 (unreported, Supreme Court, 12th of May 2016) (at para 66):
When an issue under s.37(1)(a) arises in respect of surrender to another contracting state, there is no question of Article 29 [of the Constitution] requiring a degree of tolerance, or some relative test as approved by this Court in Brennan and Buckley. Unlike the Irish Constitution, the ECHR applies with full force in the requesting state. The only question, therefore, for the requested court, is whether the requesting state will comply with its own obligations under the Convention. The potential for international friction is further reduced by the existence of institutions which are entitled to report, and in the case of European Court of Human Rights, to determine, whether or not a regime is compatible with the dictates of the Convention. Furthermore, the Irish court is entitled to apply a presumption that the national court of the requesting state is best placed to make a determination as to compatibility, at least in the first place. Such a state has, after all, the obligation of conducting the trial and administering the sentence. It may be rare, therefore, for a national court to have to address the question equivalent to a determination under s.37(1)(a) of the EAW Act without the benefit of reports and decisions from the institutions of the Council of Europe or in circumstances where it is not entitled to rely, at least in the first place, on the existence of national courts bound to uphold the provisions of the Convention. However, where such an issue does arise, the question for the national court would be whether the particular provision in issue is a breach of rights guaranteed in the Convention. That is an entirely distinct test from the test posed under s.37(1)(b) of the EAW Act, which is whether what is proposed is both such a direct consequence of surrender, and would, if it occurred in Ireland, be so egregious in breaching the guarantees of the Irish Constitution that the Court cannot, consistently with its constitutional obligations, order surrender.”
62. In this case the High Court judge correctly started from the position that, by virtue s.4A of the Act of 2003, it was to be presumed in law unless the contrary is shown that Sweden will comply with the requirements of the Framework Decision which, as recital 12 to that document makes clear, “respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union.”
63. I also agree with counsel for the respondent, and with the High Court judge, that the evidence does not support the case that the Swedish system of pre-trial remand hearings, such as that conducted by Attunda District Court in this appellant’s case on the 26th of November 2014, flagrantly disregards the Article 5 ECHR rights of suspects and represents egregious circumstances sufficient to justify a refusal of surrender in the present case. Despite what has been urged upon this Court, it is clear that the possibility does exist in Swedish law for a suspect to be allowed to remain at liberty but subject to a regime of restrictions. It is not automatic that a person suspected of a serious crime will be remanded in custody, albeit that such a disposition is the most common outcome. The evidence was that a weighing of the detriment to the suspect, or other opposing interests, against the need for pre-trial detention and a consideration of whether other less intrusive measures such as restrictions on travelling and reporting to the police might suffice instead, must be performed. Moreover, the evidence was that such a weighing was in fact performed in this case.
64. It is also fair, in terms of the complaint made in general terms concerning alleged unfairness of the Swedish pre-trial remand system, to point to the absence of criticisms from the ECHR and human rights monitoring bodies (other than the UK based NGO Fair Trials International). As O’Donnell J also pointed out in Balmer (at para 23):
“…there is a system of scrutiny, review and reporting on the protection of rights under the Convention, and ultimately a supranational court which can definitively rule on the compliance of a particular system with the Convention.”
65. Later in the same judgment, he further added (at para 66):
“The potential for international friction is further reduced by the existence of institutions which are entitled to report, and in the case of European Court of Human Rights, to determine, whether or not a regime is compatible with the dictates of the Convention.”
66. The absence of criticism of Sweden’s system of pre-trial detention before relevant fora is not therefore an insignificant consideration and it seems to me to be one which the High Court was justified in having regard to.
67. That having been said, it is a truism that someone has to go first in ventilating a complaint and conceivably the appellant might have been the first to be in a position to do so, unlikely though this might seem in circumstances where Sweden has been a full party to the ECHR since 1952. However, if that were so it begs the question why the appellant has not raised his apprehension that his rights under Article 5 ECHR will be breached before the Swedish courts. The rights guaranteed by the Convention apply in the requesting state. Sweden is therefore obliged to enforce a person’s rights under the ECHR and, for reasons analogous to those advanced in Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669, is best placed to do so. It is highly relevant in this court’s view that the appellant did not seek to appeal the Attunda District Court’s ruling if he truly believed that his rights would be breached by enforcement of that court’s order.
68. The High Court Judge’s analysis was in my view rigorous and thorough and I am satisfied in all the circumstances that the case based on s.37(1)(a) was correctly dismissed by the High Court judge.
69. Turning then to the case under s.37(1)(b). The appellant relies heavily on the test, characterised by O’Donnell J in Balmer as a “relative test”, enunciated by Murray C.J. in the Supreme Court in Minister for Justice Equality and Law Reform v. Brennan [2007] 3 IR 732 and recently re-iterated with approval in Minister for Justice Equality and Law Reform v. Buckley [2015] IESC 87. However, as O’Donnell J explains in Balmer:
“Irish constitutional law (and therefore s.37(1)(b) of the EAW Act) distinguishes between events occurring abroad and those occurring here, not merely because they do occur abroad, and therefore, are observed rather than controlled by Irish law: it is also, and more importantly, because, particularly in the field of criminal law, they are controlled by the law of a foreign sovereign state. In this case, the execution of a sentence lawfully imposed, the trial of an offence contrary to law, and the enactment of laws providing for definitions of offences, punishments and administration of sentences, are all fundamental and central attributes of sovereignty. The comity of courts is not merely a matter of politeness between lawyers, or an end in itself: it is an aspect of the relationship between sovereign states. An essential corollary of sovereignty is the equality of states, expressed in the 14th century maxim “non enim una civitas potest facere legem super alteram, quia par in parem non habet imperium” (For it is not for one city to make the law upon another, for an equal has no power over an equal) Brownlie’s Principles of Public International Law, 8th Ed (Oxford, 2012), at p. 448. Article 5 of the Constitution asserts, in words that were by no means rhetorical in 1937, that Ireland is a sovereign, independent state. By Article 1 of the Constitution, the nation affirms its sovereign right to determine its relations with other nations. The conduct of external relations of the State raises separate constitutional issues, and requires a wider constitutional focus than the question of whether a certain procedure would be permissible within the jurisdiction.
44 Article 29 of the Constitution outlines that Ireland affirms its “devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality”. This statement encapsulates a key principle applicable to the circumstances of this case. Cooperation implies some give and take. It also focuses attention on reciprocity, and the equality of sovereign states. The making of an extradition treaty, adherence to a convention on extradition, the implementation of a framework decision, and adherence to international decisions in areas of family law may all raise issues when surrender or return is sought. It is also necessary to appreciate that those issues arise under the same instrument which permits Ireland to seek the surrender of suspects for trial of offences alleged to have occurred in Ireland in respect of which Ireland has jurisdiction, or for the return of individuals to the jurisdiction of the Irish courts. It is not, therefore, a case of the Irish Constitution controlling events abroad (in which case the only question would be whether the acts alleged amount to a breach of the Constitution); it is, as already observed, rather that the Irish court is observing events abroad. Moreover, those events are observed through the lens of Article 29, requiring friendly cooperation, and Articles 1 and 5, which, in asserting sovereignty, require the respect of the sovereignty of other countries. The events, with which we are concerned here, are not private transactions between individuals. They are, by definition, the application of the criminal law within the territory of a sovereign state (in most cases to, and in respect of, its own citizens), or the execution of sentences imposed by their courts. These are key attributes of sovereignty of foreign friendly states, whose sovereignty we are bound by the Constitution to respect, in the same way as we expect respect for matters within our own jurisdiction. This is why, in my view, it is correct to speak of s.37 of the EAW Act as applying only to matters of “egregious” breach of fundamental principles of the Constitution or when something is so proximate a consequence of the court’s order and so offensive to the Constitution as to require a refusal of surrender or return. It may be that the concept of friendly cooperation may also permit or require steps to be taken which would not have been taken in an earlier age, and not merely because the provisions of the Irish Constitution have been altered, but also because the area and content of international cooperation has extended. Such cooperation is, however, not unlimited. It is, for example, by the terms of the Constitution itself subject to justice and morality. There are also examples of limitations on this principle by consent, or international agreement or otherwise. It neither necessary nor desirable to explore these circumstances here, since they were not adverted to in argument. It is enough to identify the focus of the analysis for the purpose of s.37, which, in my view, explains the application of the Brennan approach.
45 This suggests that this area cannot be subject to absolute bright line rules, and further, that progress should be careful and incremental, and in contested cases, should involve close consideration of the relevant facts.”
70. The High Court judge in the present case engaged in a close consideration of the relevant facts in evidence before her. She was not, however, entitled to go behind the facts as found by the Attunda District Court. The evidence established that Sweden does have a system of pre-trial release. However, considerations such as the inherent risk of flight and interference with witnesses in the case of a person charged with a serious offence are afforded a different weighting in that system to that which our courts might afford them. That represents a legitimate exercise of sovereignty by the Swedes. As O’Donnell J put it, at para 38 of his judgment in Balmer:
“It is not possible to justify the imposition of our choices in this regard on others, or to condemn their choices, simply on the basis that we all adhere to some general principles which are not in dispute. This is particularly so in the case of a right expressed or developed in a singular way in the constitutional jurisprudence of one country. By definition, the right is not universally recognised. Universal applicability cannot be the basis for its application to other countries.
71. It seems to me, echoing Murray C.J.’s remarks in Brennan, that the mere fact that Swedish law attaches different weight to the considerations in question, and in that regard is perhaps even radically different to Irish law, does not automatically mean that their system is fundamentally defective and that a refusal of surrender is required to protect the appellant’s rights. I consider that it is also not without significance that the law in Ireland on pre-trial detention has not remained static and that it has been changed significantly since O’Callaghan’s case, admittedly by constitutional referendum, and that bail may now be denied even in this jurisdiction on other grounds including the risk of the commission of other serious offences. It is difficult in the circumstances for the appellant to tenably contend that the Swedish system departs “so markedly from the scheme and order envisaged by the Constitution” (per O’Donnell J in Nottinghamshire County Council v. B and Others [2011] IESC 48 (unreported, Supreme Court, 15th December, 2011)) as to require refusal of surrender.
72. The appellant’s contention that the Swedish system de-facto involves a presumption against liberty is perhaps, at first glance, potentially his strongest point. However, I agree with the High Court judge that the reality is more nuanced and that in truth there is no such presumption. It may be the case that very cogent and compelling evidence requires to be produced by an accused in Sweden in order to persuade a Court that detention is unnecessary, having regard to the weighting that is afforded in that jurisdiction to what they regard as the inherent risks of flight and of interference with witnesses that may arise where there is a reasonable suspicion that a person has committed a serious offence. However, that is not the same thing as saying that the necessity for detention is presumed to be obvious. There is no presumption of necessity for detention, in the sense of an inference recognised by law which stands until the contrary is proved. Evidence of risk is still required to be adduced by the applicant for a pre-trial detention order in every case and the court is obliged to conduct a weighing of the competing interests. However, because great weight tends to be attached to the inherent risks of flight and of interference with witnesses that may be perceived to arise where there is a reasonable suspicion that a person has committed a serious offence, for all practical intents and purposes a person who seeks to resist pre-trial detention will be required adduce evidence of even greater weight for placement on the other side of the notional scales. The High Court judge was therefore right in characterising the Swedish rule as operating to place a high evidential burden on a person who is reasonably suspected of a serious offence and who desires to be allowed to remain at liberty.
73. I am satisfied in the circumstances that the High Court judge was also correct in dismissing the case based on s.37(1)(b) of the Act of 2003 as amended.
74. I would therefore answer the question referred to this Court by the High Court in the negative.
Minister for Justice and Equality v Mangan
[2017] IECA 329
THE COURT OF APPEAL
Neutral Citation Number: [2017] IECA 329
Record No. 2017/132
Birmingham J.
Mahon J.
Edwards J.
IN THE MATTER OF THE EUROPEAN ARREST WARRANTS ACT
2003 AND 2012
BETWEEN/
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
– AND-
PATRICK JOSEPH MANGAN
APPELLANT
JUDGMENT of Mr. Justice Mahon delivered on the 11th day of December 2017
1. A European Arrest Warrant issued on the 5th April 2013 by the Kingdom of Spain (“Spain”) seeking the surrender of the appellant to that country from this jurisdiction. The EAW was endorsed by the High Court on the 1st February 2016 pursuant to the provisions of s. 13 of the EAW Act 2003, as amended. The Minister for Foreign Affairs has designated Spain as a member State for the purposes of the Act of 2003 in the European Arrest Warrant Act 2003 (Designated Members States) Order (S.I. 4 of 2004).
2. On the 16th March 2017, pursuant to s. 16(1) of the European Arrest Warrant Act 2003, as amended, the High Court (Donnelly J.) made the Surrender Order subject to a stay on the Order pending the conclusion of this appeal.
3. The relevant background facts are set out in considerable detail in the course of the judgment of Donnelly J. delivered on the 13th March 2017 and will be repeated to only a limited extent in this judgment. The subject matter of the EAW is ‘illicit trafficking in narcotic drugs and psychotropic substances’. The issuing judicial authority has clarified that they are relying on the designation of the offence as one to which Article 2, para. 2 of the 2002 Framework Decision applies. The facts relevant to the alleged commission of the criminal offence in Spain would, if committed in this jurisdiction, amount to the criminal offence of possession of a controlled substance with intent to sell or otherwise supply it to another contrary to s. 15 of the Misuse of Drugs Act 1997, as amended. Furthermore, it would also amount to conspiracy to possess controlled drugs with the requisite intent. On that basis, the High Court found that the surrender of the appellant was not prohibited on the basis of s. 38 of the Act of 2003.
4. The identification of the appellant as a suspect in a drugs operation arose in the course of the interception/tapping of the Spanish telephone of Anthony Joseph O’Neill and, thereby, telephone conversations between Mr. O’Neill in Spain, while using his Spanish telephone, and the appellant in Ireland, using his Irish telephone were intercepted and recorded. At the time, the relevant judicial Spanish authority had authorised the interception of Mr. O’Neill’s Spanish telephone.
5. In a communication from the issuing judicial authority in Spain on the 26th September 2016 addressed to The Central Authority in this jurisdiction the following details were provided:-
“During the process of investigation that took place on different organisations involved in drug trafficking, it was found out through the telephone intervention works that took place by Judicial Order that a group of people related to a lieutenant of the Spanish Military Police (Guardia Civil) were trying to perform a drug trafficking operation (hashish). The criminal organisation got the drug that came from Morocco and, for a price, it was delivered to another organisation in Spain comprised of British and Irish people. Being their chief, Patrick Joseph Mangan, the person that paid for the drug. The representative of the group in Costa de Sol was identified as Anthony Joseph O’Neill who received orders from Patrick Joseph Mangan as well as the money to buy the drug. That is the reason why, only after the policy (sic) investigation of the criminal group and after listening to the conversations held between him and John Anthony Joseph O’Neill, conversation in which John Anthony Joseph O’Neill received orders and the money from Patrick Joseph Mangan, it has been possible to find out the connection of Patrick Joseph Mangan with the facts under investigation. When they both spoke by telephone and spoke about ‘Big Fella’ they might be referring to Mauricio Alejandro Teutsch Ovalle, another defendant in the proceedings that belongs to another organised group in charge of getting the drug from Morocco. Since that person also had his telephoned intervened it has been possible to find out about the conversations he used to have with John Anthony Joseph O’Neill and therefore the connection of Patrick Joseph Mangan with the facts under investigation.
In order to clarify the kind of participation that Patrick Joseph Mangan alias ‘The General’ and alias ‘The Old’ has in the facts, a file is attached with the original conversations that have been monitored by a Judicial Order. In those conversations the telephone number 6341 67588 is used by O’Neill and the telephone number 353 85 840 2653 is used by Patrick Mangan.”
6. The information obtained by the Spanish authorities upon which they seek the surrender of the appellant was obtained from information gleaned from listening to a telephone call made to or from the Spanish phone of Mr. O’Neill of which the Spanish authorities were lawfully authorised to intercept. The contention that the information was obtained from tapping Mr. O’Neill’s Spanish phone has not been challenged.
7. Following the conclusion of the High Court hearing, and on the making of the Order to surrender the appellant to Spain, the appellant expressed his desire to appeal the decision of the High Court and sought a Certificate pursuant to s. 16(11) of the EAW Act 2003, as amended. That application was considered by the High Court, and on the 22nd March 2017 Donnelly J. expressed herself satisfied that the decision of the High Court involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be brought to this Court. The point of law of exceptional public importance was summarised in two questions, namely:-
(i) Is a citizen’s constitutional right to privacy engaged if, without his knowledge or consent, his telephone conversations with a third party not present in this jurisdiction or listened to, recorded and / or transcribed by the servants or agents of another State when the citizen was present within this State and at the time that his conversations were recorded the phone tap was directed at the phone of the third party by judicial order of the other State and where there is no evidence that the interception of the conversations occurred within this jurisdiction?
and
(ii) If his constitution right to privacy is engaged, is the surrender of the citizen prohibited by s. 37(1)(b) of the European Arrest Warrant Act 2003, as amended, in circumstances, where, if surrendered it is intended at his trial in the issuing State to rely on such telephone conversations as evidence against him?
8. Crucial to this appeal is the finding of fact of the High Court that the gathering of the information by the Spanish authorities was from its tap on Mr. O’Neill’s phone and, importantly, not on the appellant’s Irish telephone. The learned High Court judge stated:-
“The finding that it was not Mr. Mangan’s phone that was the subject of the telephone tapping authorisation in Spain leads inexorably to the conclusion that the interception occurred in Spain, or at the very least, did not occur in Ireland (as the Spanish authorities could have obtained lawful authority to tap the telephone of Mr. O’Neil in another country). This is because the Spanish Authorities must be presumed to have acted lawfully and must be presumed not to have violated both the respondent’s [the appellant in this appeal] personal rights and the integrity of the State.”
9. In Balmer v. Minister for Justice and Equality [2016] IESC 25, O’Donnell J. said:-
“44. Article 29 of the Constitution outlines that Ireland affirms its “devoted to the ideal of peace and friendly cooperation amongst nations founded on international justice and morality”. This statement encapsulates a key principle applicable to the circumstances of this case. Cooperation implies some give and take. It also focuses attention on reciprocity, and the equality of sovereign states. The making of an extradition treaty, adherence to a convention on extradition, the implementation of a Framework Decision, and adherence to international decisions in areas of family law may all raise issues when surrender or return is sought. It is also necessary to appreciate that those issues arise under the same instrument which permits Ireland to seek the surrender of suspects for trial of offences alleged to have occurred in Ireland in respect of which Ireland has jurisdiction, or for the return of individuals to the jurisdiction of the Irish courts. It is not, therefore, a case of the Irish Constitution controlling events abroad (in which case the only question would be whether the acts alleged amount to a breach of the Constitution); it is, as already observed rather that the Irish court is observing events abroad. Moreover, those events are observed through the lens of Article 29 requiring friendly cooperation and Articles 1 and 5 which, in asserting sovereignty, require the respect of the sovereignty of other countries. The events, with which we are concerned here, are not private transactions between individuals. They are, by definition, the application of the criminal law within the territory of a sovereign state (in most cases two, and in respect of, its own citizens), or the execution of sentences imposed by other courts. These are key attributes of sovereignty of foreign friendly states, whose sovereignty we are bound by the Constitution to respect, in the same way as we expect respect for matters within our own jurisdiction. That is why, in my view, it is correct to speak of s. 37 of the [2003] Act as applying only to matters of egregious breach of fundamental principles of the Constitution or when something is so proximate a consequence of the court’s order and so offensive to the Constitution as to require a refusal of surrender or return. It may be that the concept of friendly cooperation may also permit or require steps to be taken which would not have been taken in an earlier age, and not merely the provisions of the Irish Constitution have been altered, but also because the area and content of international cooperation has extended. Such cooperation is however, not unlimited. It is for example, by the terms of the Constitution itself subject to justice and morality. There are also examples of limitations on this principle by consent, or international agreement or otherwise. It is neither necessary nor desirable to explore these circumstances here, since they were not adverted to in argument. It is enough to identify the focus of the analysis for the purpose of s. 37, which, in my view, explains the application of the Brennan approach”
10. At the heart of this appeal is the contention by the appellant that the appellant’s Irish telephone was intercepted unlawfully by the Spanish authorities. It is however accepted by the appellant that the relevant conversation(s) listened to by the Spanish authorities were those communicating with Mr. O’Neill’s phone either by way of incoming or outgoing calls to or from that phone. It is not suggested that any interception of the appellant’s phone otherwise occurred. It is noteworthy that the lawfulness of the Spanish order has never been challenged in the Spanish Courts, the appropriate venue in which any such challenge should be made and determined. There is a presumption in s. 4A of the Act of 2003 that an issuing State will comply with the requirements of the 2002 Framework Decision which in turn respects fundamental rights and it is to be assumed that a Court in Spain would afford the appellant his appropriate rights in that jurisdiction, including his right to respect for his private and family life.
11. The case of MJE v. Damien McLoughlin (Unreported High Court 20th October 2017) concerned a claim that the respondent, if surrendered, on foot of an EAW, would be subject to inhuman and degrading treatment in a prison in Northern Ireland. In the course of her judgment, Donnelly J. observed:-
“It is also appropriate to note that the CJEU referred to the principle of mutual recognition on which the EAW system is based as being founded upon the mutual confidence between member States and their national legal systems are capable of providing the equivalent and effective protection of fundamental rights recognised at E.U. level. The CJEU recognise that limitations of the principles of mutual recognition and mutual trust can be made in exceptional circumstances. In consequence thereof the CJEU set out the principles referred to above. Under the Act of 2003 there is a presumption that an issuing State will comply with its obligations under the Framework Decision which of course includes respect for fundamental rights.”
12. The High Court made the following finding of fact:
“From the information before the court, I am satisfied that the respondent only came to the attention of the Spanish authorities through the telephone conversations that were already being tapped. What the Spanish authorities rely upon are the interceptions of the phone of John Anthony Joseph O’Neill. Indeed, it is striking that the respondent maintains vigorously that his prosecution is a direct affect of the taped telephone conversations, however the Court is satisfied that on the evidence before it the taping was of Mr. O’Neill’s telephone. The Court is satisfied that all of the evidence in the EAW and additional information, points overwhelming in a single direction i.e. that the alleged involvement of the respondent in this drug trafficking is based upon the telephone tapping of Mr. John Anthony Joseph O’Neill and the recording of conversations between John Anthony Joseph O’Neill and Patrick Joseph Mangan. Indeed it is noteworthy that the respondent in this case has not sought to put before the court any evidence that might show that during the course of his detention in Spain on this alleged offence for a period of about two years, it was ever alleged that his phone had been tapped. Thus, while the respondent had every opportunity to contest what has been stated by the issuing judicial authority, he has not made any attempt to do so.”
13. The issue raised in the answer to the first question certified by the learned High Court judge is whether the right of privacy that the appellant enjoys under the Irish Constitution, both as a citizen of this jurisdiction and more particularly, when communicating by telephone from this jurisdiction is without limitation. The learned High Court judge expressed the view that the suggestion that a person’s mere presence in this jurisdiction creates an entitlement to privacy no matter where on the globe he may communicate with and that such communication may only be interfered with by an authorisation lawfully obtained in accordance with Irish law, is not a tenable proposition.
14. The case of Kennedy and Ors v. Ireland and The Attorney General [1987] I.R. 587 was concerned with a claim for damages for the unlawful tapping of the telephones of two political journalists between May and November 1982. In the course of his judgment Hamilton P. (as he then was) said:-
“Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flowed from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality.”
15. He also stated (at page 593):-
“The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the words “deliberately, consciously and unjustifiably” because an individual must accept the risk of accidental interference with his communications and the fact that in certain circumstances the exigencies of the common good may require and justify such intrusion and interference..”
16. Section 98 of the Postal Telecommunications Services Act 1983 provides that:-
“(1) A person who:-
(a) intercepts or attempts to intercept, or
(b) authorises, suffers or permits another person to intercept, or
(c) does anything that will enable him or another person to intercept, telecommunications messages being transmitted …shall be guilty of an offence.”
17. Sub section (2) provides that no offence is committed in a number of specific instances, including in circumstances where the interception is lawfully authorised.
18. The Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1983 provides for the authorisation of interceptions for the purpose of criminal investigation or in the interests of the security of the State in very restricted circumstances.
19. Lawfully permitted interception of telephones undertaken in compliance with statutory provision in this country enables garda officers to eavesdrop on communications on a particular telephone. Such communications of necessity include those emanating from that phone directed towards another telephone and those coming from another telephone into that particular phone. For such an authorisation to mean anything else would be a nonsense and would be unworkable and pointless. The very nature of a telephone is that it acts as a device to facilitate communication between two parties who are physically separated by distance from each other. This process clearly involves at least two telephones and in practice often involves parties communicating with each other from different jurisdictions.
20. A lawfully permitted phone tap in this country permits the listening into of a conversation between the phone which is the subject of the authorisation and another telephone which is not the subject of such authorisation. Any suggestion that only conversations between telephones which are both the subject of interception orders can be listened to is as meaningless as it is impractical. This observation applies equally to telephone conversations between the lawfully intercepted telephone and another Irish telephone or a foreign phone and whether they are being used in or outside Ireland.
21. Balmer is authority for the contention that Ireland does not export its Constitution. It follows therefore that the Irish constitutional right to privacy does not apply to Spain and therefore the provisions of the Constitution are not engaged in relation to activity undertaken in that State including the lawful interception within that State of communications to or from telephones in that State.
22. In the particular circumstances of this case the appellant’s constitutional right to privacy, under the Irish Constitution, is not engaged. The answer to question 1 is therefore No.
23. Having regard to the negative response to the first question it follows that the second question does not require to be answered.
24. In the circumstances the Court will dismiss the appeal and will uphold the decision of the High Court for the surrender of the appellant to Spain. The Court is satisfied that his surrender does not breach either the appellant’s constitutional or ECnHR rights.
Minister for Justice and Equality v Rajki
[2012] IEHC 270
JUDGMENT of Mr. Justice Edwards delivered on the 21st day of June, 2012
Introduction
The respondent is the subject of a European arrest warrant issued by the Republic of Hungary on the 11th November, 2010, in order that he might be prosecuted for the single offence particularised in the warrant. The offence in question is the subject of a ticked box in Part E I of the warrant, namely the box relating to “swindling”. The warrant was endorsed for execution by the High Court in this jurisdiction on the 11th May, 2011. The respondent was arrested in Cork on the 21st June, 2011, by Garda Micheál O’Regan and on the following day was brought before the High Court in the normal way pursuant to s.13 of the European Arrest Warrant Act 2003 (hereinafter referred to as “the Act of 2003”). At the s.13 hearing the Court fixed a date for the purposes of s.16 of the Act of 2003, and the respondent was admitted to bail pending the s. 16 hearing taking place. The matter was then adjourned from time to time until coming before the Court on the 1st May, 2012, for the hearing of the s.16 application.
The respondent does not consent to his surrender to the Republic of Hungary. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s.l6 of the Act of 2003, as amended, directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s.16 of the Act of 2003.
The respondent, as is his entitlement, does not concede that any of the requirements of s.16 aforesaid are satisfied. Rather, the Court is put on inquiry as to whether all of the requirements of s.16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court’s jurisdiction to make an order directing that the respondent be surrendered is dependant upon a judicial finding that they have been so satisfied. In addition the Court is required to consider in the particular circumstances of this case two specific objections to the respondent’s surrender, namely:
(i) an objection that at the time at which the warrant was issued no decision had been made to charge the respondent with, and to try him for, the offence in question in the issuing state, and that accordingly the Court is obliged under s.21A of the Act of 2003 to refuse to surrender him; and
(ii) an objection that the surrender of the respondent is prohibited by s.37 of the Act of 2003 in that to surrender the respondent would expose him to a real risk of being subjected to inhuman and degrading treatment, alternatively to a breach of his right to bodily integrity, contrary to the respondent’s constitutional rights and rights under the European Convention on Human Rights and Fundamental Freedoms (hereinafter “the Convention”) including article 3 thereof. In addition, he contends that his right to respect for his family life under article 8 of the Convention would be breached.
Uncontroversial s.16 Issues
The Court has received an affidavit of Garda Michaél O’Regan, sworn on the 29th February, 2012, and has also received and scrutinised a copy of the European arrest warrant in this case. Moreover the Court has also inspected the original European arrest warrant which is on the Court’s file and which bears this Court’s endorsement. The Court is satisfied following its consideration of this evidence and documentation that:
(a) the European arrest warrant was endorsed for execution in this State in accordance with s.13 of the Act of 2003;
(b) the warrant was duly executed;
(c) the person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;
(d) the warrant is a prosecution type warrant relating to a single offence; (e) the warrant is in the correct form;
(f) no question arises of the respondent having been tried in absentia (as the case is a prosecution case), and accordingly it is not a case in which the court would require an undertaking under s.45 of the Act of 2003;
(g) correspondence is not required to be demonstrated between the offence particularised in the warrant and an offence in Irish law in circumstances where paragraph 2 of article 2 of the Framework Decision (Council Framework Decision (2002/584/JHA) of 13th June, 2002, on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1, 18.7.2002) has been validly invoked, as it has here;
(h) as the offence in question carries a potential maximum penalty of 3 years deprivation of liberty under Hungarian law the requirements of s. 38(1)(b) of the Act of 2003 with respect to minimum gravity are met.
In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) (No.3) Order 2004, (S.I. 206 of 2004) (hereinafter referred to as “the 2004 Designation Order”), and duly notes that by a combination of s. 3(1) of the Act of 2003, and article 2 of, and the Schedule to, the 2004 Designation Order, “Hungary” (or more correctly the Republic of Hungary) is designated for the purposes of the Act of 2003 as being a state that has under its national law given effect to the Framework Decision.
The s. 21A Objection.
S.21A of the Act of 2003 was inserted by s.79 of the Criminal Justice (Terrorist Offences) Act 2005. It provides:
“21A.- (1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, 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.
(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for that offence in the issuing state, unless the contrary is proved.”
The respondent’s case in regard to this aspect of the matter is premised upon the fact that in Part B of the warrant, wherein details of the decision on which the warrant is based are supposed to be set out, there is in fact no reference to any domestic proceedings or domestic arrest warrant. Further, the respondent has expressed the belief on affidavit that “the real purpose for seeking my surrender is to interrogate me about any knowledge I may have on gangland activities in Hungary and not for the purposes of charge and trial for the alleged offence set out in the … European arrest warrant. ”
It is stated in Part B under the heading “Decision on which the warrant is based”:
“Arrest warrant or judicial decision having the same effect: European arrest warrant of Szegedi Városi Bíróság (the City Court of Szeged) under number 6.Bny.934/2010/2., the force of which extends to the territory of the Republic of Hungary as well, thus it also constitutes a national arrest warrant.
Type: arrest warrant”
Counsel for the applicant has indicated that he has at all times been prepared to rely upon the s.21A(2) presumption, but that on an ex abundante cautela basis clarification as to the position was sought from the issuing judicial authority. In additional information furnished by the issuing judicial authority on the 19th October, 2011, it is stated:
“The requested person alleged that ‘ there appeared to be no Hungarian domestic criminal proceedings in being, other than the European arrest warrant itself, since there is no decision on which the European arrest warrant is based’.
Contrary to the above allegation, there is a pending criminal prosecution for the offence described in the European arrest warrant against Sándor Rajki in Hungary. Please be informed that according to section 25 subsection (7) of Act CXXX of 2003 on Cooperation Criminal Matters with the Member States of the European Union, a ‘European arrest warrant (issued by a Hungarian court) shall be considered also as a national arrest warrant’. As a result of this, there is no need to issue a separate national arrest warrant in Hungary. Consequently, there is no other decision of the court on which the European arrest warrant is based, since the European arrest warrant itself is a decision of an independent and impartial Court.
Box b) Section I of the European arrest warrant form is relevant only in cases where the issuing authority is other than a judge or a court (but a prosecutor etc.), since a judicial decision is indispensable for the deprivation of liberty. Nonetheless, if the European arrest warrant is issued by a Court or Judge, the European arrest warrant is a judicial decision itself.”
(All emphasis as in original)
Counsel for the respondent has very fairly conceded that the respondent has been unable to adduce any evidence in concrete support of his asserted belief, but asks the Court to treat any reliance by the applicant on the s.21A(2) presumption with a healthy scepticism in the light of what occurred in the case of Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16 (Unreported, Supreme Court, 1st March, 2012), and to treat the presumption as being easily rebutted at least to the extent of the Court being put upon enquiry as to the actual, as opposed to any presumed position. Counsel for the respondent asks the Court to regard the presumption as being rebutted in this case and to refuse surrender. He further asks, in the alternative, that the Court would exercise its jurisdiction under s.20(1) of the Act of 2003 and seek additional information from the issuing judicial authority on the question of the purpose for which the respondent’s rendition is sought.
The Court considers that the applicant is entitled to rely on the s.21A (2) presumption. Moreover, there is no cogent evidence tending to rebut that presumption. On the contrary, all of the available information is in any event consistent with that which is presumed. The Court considers that the position is clear, especially in the light of the additional information of the 19th October, 2011. The European arrest warrant also constitutes a national or domestic arrest warrant, and therefore there was no necessity for the issuance of a separate domestic arrest warrant. There are no good grounds that would justify the Court in seeking yet further information from the issuing judicial authority and I am not disposed to make a request under s.20(1) of the Act of 2003.
In the circumstances the Court is not disposed to uphold the objection based on s.21A of the Act of 2003.
The s. 37 Objection
Evidence adduced by the respondent
The respondent has deposed to the following matters (inter alia) in his affidavit sworn on the 10th October, 2011:
“7. Prior to coming to Ireland on or about 6 October 2007, I spent a period of three years in prison in Szeged in Hungary from 2004 to 2007. I was released in July 2007.
8. The offences (hereinafter referred to as the ‘drug offences’) for which I was imprisoned included cultivation of cannabis, trading in cannabis and possession of heroin for personal use. At the time of the offences I had been a heroin addict for 5 or 6 years.”
“13. I recall that when I was in prison in Hungary in the years 2004 – 2007, inclusive, there were six people housed in a cell designed for a much smaller number of inmates. The dimensions of the cell in which I was placed, were approximately 6 metres x 4 metres. It contained 2 bunk beds with three levels on each bed. Between 7 am and 7 pm cells sales open which enabled inmates to walk about from cell to cell, but there was only one hour provided for exercise outdoors each day.
14. There was one toilet per cell and it was hidden by a curtain which only afforded very limited privacy. There was no ventilation in the cell other than one small window approximately 1 metre by 1 metre which in size which would only open out approximately 10 centimetres. Meals were eaten in the cell and there was also a television in the cell.
15. During my time in prison, correspondence in and out of the prison was delayed by a number of weeks, which made communication difficult. Further family visits only took place once per month; each visit was only of 1 hours duration. In addition, the maximum number of visitors at any one time was two adults and two children.
16. I say and believe that the US Department of State 2010 country reports on Human Rights Practices for Hungary (hereinafter referred to as the ‘2010 Country Report for Hungary’) indicates that prison and detention centres in Hungary fell short of international standards in some areas.
17. It further states that Human Rights Non-Governmental Organisations and Prison Monitors had repeatedly expressed concern about prison overcrowding in 2010. The said report also referred to a report of the CPT which observed severe overcrowding at the Borsod-Abauj-Zemplen prison in Hungary in almost all cells, with up to four prisoners in cells of eight square metres (86 square feet), 10 to 14 prisoners in cells of 25 square metres (269 square feet), and at 14 prisoners in cells of 32 square metres (344 square feet).
18. I say and believe that the Hungarian Helsinki committee, as referred to in the above-mentioned 2010 Country Report on Hungary, also noted that prison overcrowding increased during 2010 and there were reports of shortages of bed linens, towels and clothing with inadequate medical care. Sanitation and toilet facilities were also caught in some instances and in some prisons it was found that toilets were not separate from living spaces. Many police holding cells did not have toilets and running water and lighting and ventilation were often inadequate. [US Department of State 2010 Country Report on Hungary exhibited]
19. I say and believe that the official website of the Hungarian Prison Service acknowledges that the Hungarian Penal Institutions are characterised by overcrowding. It further states that at the end of December 2010 the average national rate of overcrowding totalled 134% and further that in some regions of the country where the crime rate is higher or accommodation capacity is smaller, prison overcrowding can be higher than the national level, reaching in some instances overcrowding at the level of 180% to 220%. [Print out from a website referred to exhibited]
20. I further say and believe that the European Court of Human Rights in two decisions published on 7 June 2011, namely ‘Csullog v Hungary’ and ‘Szel v Hungary’, found that prison conditions in Hungary violated the right guaranteed by Article 3 of the European Convention on Human Rights that no person shall be subjected to torture or to inhuman or degrading treatment or punishment.
21. I say and believe therefore that ifi am surrendered to the Republic of Hungary, there is a real risk that I will suffer inhuman and degrading treatment due to the prevailing prison conditions which I believe will be the same as I experienced in the year 2004-2007 at stated; I believe these prison conditions as described still prevail today.”
“24. I say that I entered into a relationship with my partner Timea Lukacs in Hungary in the summer of 2007 following my release from prison. My said partner, who was divorced in 2006, was at the time already a mother to 3 children, named Roland, Daniel and Oliver who are now 15 years, 12 years and 5 years respectively.
25. I was released from prison in July 2007 and for the following number of months thereafter, came under constant pressure to main contact with [a particular] gang and become involved in their activities.
26. I say that in order to avoid a pressure I came to Ireland on or about 6 October 2007 and stayed for six months during which time I completed a safe Pass course and worked with BMD Marketing Company of 53 McCurtain Street, Cork.
27. I then travelled to England in or about April2008 where I remained until December 2010. During that time I travelled back to Hungary on approximately 5 or 6 occasions, during which time my relationship with Timea Lukacs continued to develop and strengthen, at which stage we discussed our future plans. In that regard, we travelled to Ireland in the summer of 2010 for approximately one month and also to London for about two months in order to help us to decide where we would begin our new life together.
28. I say that we decided that we would base our life in Ireland and as a result I travelled here on about 31 December 2010. I was then joined by my partner and her three children on or about 5 February 2011. At the time my partner was pregnant with our first child together and she subsequently gave birth to our child, who we named Victoria on 24 February 2011.
29. Ms Lukasc and her three children, who I regard as my stepchildren, reside with the 20 Oliver Plunkett Street, Bandon, in the County of Cork along with Victoria our daughter. I say that she has no English and is totally dependent on me both for the purposes of daily communication and as a provider for her and her children. I say that I applied for, but I’m not getting receipt of, disability benefit and therefore providing for my family by using savings. I say the Oliver, our youngest boy (aged five years) started school in September, 2011. Daniel (aged 12 years) attend school in Ireland and Roland (aged 15 years) plans to commence school in this country.
30. I say that my surrender to Hungary will constitute a serious violation of my family rights as guaranteed by Article 44 of the Constitution and Article 8 of the European Convention on Human Rights.”
Although the Court has not considered it necessary for the purposes of this judgment to quote the entirety of the respondent’s said affidavit, and therefore has quoted only selectively from it, the Court has nonetheless had regard to the entirety of it.
Additional information adduced by the applicant
The respondent’s said affidavit was furnished to the issuing judicial authority by the applicant to enable that party to respond to it, and the response is contained first within the letter dated the 19th October, 2011, to which the Court has previously referred, and further within a subsequent letter dated the 28th November, 2011, which has now been placed before this Court as additional information.
The additional information on this issue contained in the letter of the 19th October, 2011, states:
“Breach of fundamental rights: In connection with the allegations concerning with a breach of fundamental rights (inhuman and degrading treatment), please be informed that the Republic of Hungary participates in most of the universal and regional European international conventions protecting human rights (for instance the European Convention of Human Rights signed in Rome on 4 November 1950 under the Council of Europe). Furthermore, since 1 May 2004 the Republic of Hungary is a member of the European Union, which means that its legal system and the operation of its judicial and administrative organs fully complies with the very strict requirements of the European Union concerning human rights. As a result of this, there is no such ground for non-execution in the Council Framework Decision of June 13, 2002 on the European arrest warrant and the surrender procedures between Member States, since the proper protection of fundamental rights cannot be questioned among EU Member States.
According to the common principle of evidence, the burden of proof always lies with the charger. As a consequence the Burden of proof lies with Sándor RAJKI to prove its very serious charges against Hungary. For example, according to him, a Hungarian police officer approaches truth during the interrogation that he did not file a complaint. We cannot understand the reason of it, since without complaint it is impossible to prove the charges and to proceed against the assault. Moreover, Sándor RAJKI alleged that he had spent a period of three years in prison in Szeged from 2004 to 2007, from which she had been in custody for approximately 2 years and 6 months before the trial. According to the authentic record of the General Directorate of Penal Institutions of Hungary, per person concerned was in preliminary attention from 11 October 2004 to 8 March 2006 (which is less than 1 year and 5 months), subsequently he served his final sentence to 6 July 2007. As a consequence, his allegations can be questioned. For your additional information, please find enclosed the criminal record of the requested person in Hungarian language
Family Life: the family life is absolutely irrelevant in surrender proceedings. There are strict grounds for refusal in the. Council Framework Decision of 13 June, 2002 on the European Arrest Warrant and the surrender procedures between Member States. None of them relate to family life. If none of the grounds for nonexecution applies, the European arrest warrant has to be executed.”
(emphasis as in original)
Further, the additional information contained in the letter of the 28th November, 2011, states:
“Sándor Rajki was detained several times between 1998 to 2010, serving either pre trial detention or imprisonment. He was then detained in the Bekes County Regional Penitentiary Institution or the Szeged Strict and Medium Regime Prison which institutions are located close to his domicile.
Some of his allegations result from legal regulations (e.g. the number of visits, opening cell doors between 7 am and 7 pm) and not from the overcrowding of penitentiary institutions.
Concerning the overcrowded prison conditions we would like to emphasise that Sándor Rajki exaggerates and generalises the negative aspects. It is not true that the hygienic standards of the penitentiary institutions are low and that the level of medical services is unsatisfactory. Therefore the detainees fear that in Hungary he would be detained in cruel and degrading prison conditions is basically erroneous conclusion.
As we informed you, the Republic of Hungary participates in most of the universal and regional European international conventions protecting human rights (for instance the European Convention of Human Rights signed in Rome on 4 November 1950). Furthermore, since 1 May 2004, the Republic of Hungary is a member of the European Union, which means that the legal system and the operation of its judicial and administrative organs fully comply with the very strict requirements of the European Union standards concerning human rights. Accordingly there is no such ground for non-execution in the Council framework decision of June 13, 2002 on the European arrest warrant and the surrender procedures between Member States, since the proper protection of fundamental rights cannot be questioned among EU Member States.”
(emphasis as in original)
Submissions on behalf of the respondent
Counsel for the respondent submitted that he was basing his case upon four pillars: first the respondent’s personal experience of Hungarian prisons between 2004 and 2007; secondly, country of origin information and in particular criticisms of Hungarian prison conditions contained with the U.S, Department of State 2010 Human Rights Report on Hungary (April 8, 2011); thirdly, information published on the website of the Hungarian Prison Service itself, and fourthly, recent decisions of the European Court of Human Rights concerning prison conditions in Hungary, and in particular the decisions of that Court in Szél v Hungary [2011] ECHR 898, and most recently in Kovács v Hungary [2012] ECHR 58.
In so far as the U.S. Department of State 2010 Human Rights Report on Hungary (April 8, 2011) was concerned counsel specifically drew the Court’s attention to the following passages contained therein under the heading “Prison and Detention Centre Conditions” at pp.4-5 and 6:
“Prison and detention center conditions fell short of international standards in some areas. The government permitted visits by independent human rights observers.
Human rights nongovernmental organizations (NGOs) and prison monitors repeatedly expressed concern about prison overcrowding. For example, in its June 8 report, the CPT reported observing severe overcrowding at the Borsod-Abauj Zemplen Prison in almost all cells, with up to four prisoners in cells of eight square meters (86 square feet), 10 to 14 prisoners in cells of 25 square meters (269 square feet), and up to 14 prisoners in cells of 32 square meters (344 square feet).
According to the Hungarian Helsinki Committee (HHC), prison overcrowding increased during the year. Shortages of bed linens, towels, and clothing, and inadequate medical care remained problems. Sanitation and toilet facilities were also poor in some instances. In some prisons, toilets were not separate from living spaces.
Many police holding cells did not have toilets and running water; lighting and ventilation were often inadequate.
In its June 8 report, the CPT indicated that it received several credible accounts, supported by medical evidence, of staff mistreating prisoners (by punches and kicks) at the Miskolc Prison and allegations of mistreatment (by slaps, punches, and kicks) of prisoners at the Tiszalok Prison. At the Tiszalok Prison the CPT heard one allegation involving the unacceptable use of handcuffs (fixed behind a prisoner’s back and raised to inflict pain) that could be considered assault.
On November 18, a military court found a guard at the Budapest Maximum and Medium Security Prison guilty of mistreating an inmate in June 2009. The court sentenced the defendant to one year in prison but agreed to three years’ probation in lieu of the prison sentence. Both prosecution and defense appealed the verdict. According to the HHC, the same inmate alleged that following the verdict, a prison guard in the Metropolitan Penitentiary Institution mistreated him while referring to the conviction of his colleague. The appeals of the original case and an investigation into the allegations of mistreatment by a second guard were pending at year’s end.
On May 7, the Metropolitan Court of Appeals upheld the conviction of two prison guards of physical abuse in an official capacity when they attacked an inmate in the Miskolc Prison in 2008. The court sentenced one guard to eight months’ imprisonment, suspended him for two years, and demoted him in rank for one year. It fined the second guard 87,500 forint ($414).
Both the HHC and the CPT noted that detainees who alleged physical mistreatment were usually examined only by internal medical staff. Further, on May 27, the national police chief ordered that medical examinations could be conducted in the absence of law enforcement staff only at the request of the detainee or the doctor, and only if permitted by the senior guard supervisor.
According to the June 8 CPT report, conditions at police holding facilities were generally adequate; however, the committee noted that one prisoner in detention at the time of the visit was subjected to degrading treatment. He was in the Budapest police central holding facility in a high security “cell” that consisted of a barred area within a single cell. Both the detainee and his sanitary facilities were subjected to powerful round-the-clock spotlights and video surveillance. In May 2009 authorities reportedly installed infrared cameras so the spotlights could be turned off at night. However, the CPT noted that the unscreened sanitary facilities remained in the field of vision of video surveillance cameras and in full view of supervising staff.”
“According to the Hungarian Prison Service, the prison population increased to 132 percent of capacity as of December 31, compared with 129 percent in 2009. On December 31, 16,366 inmates were in prisons and detention centers. On July 19, the government reopened the prison in Solt to reduce overcrowding, increasing the capacity of the system by 288.”
In so far as the website of the Hungarian Prison Service is concerned this is to be found at www.bvop.hu and counsel referred the Court specifically to the following passage which appeared upon the home page as of the 12th July, 2011, a printout of which was exhibited to an affidavit sworn by the respondent’s solicitor, Jane O’Sullivan, on the 30th April, 2012 (this is the material to which the respondent refers at paragraph 19 of his affidavit):
“In compliance with the effective legal regulations the overall capacity of the 31 penal institutes is 12335 persons therefore penal institutions are characterized by overcrowding. At the end of December 2010 the average national rate of overcrowding totalled in 134%. In some regions of the country (where the crime rate is higher or accommodation capacity is smaller) prison overcrowding can be higher than the average national level (180-220%).”
For comparison purposes the affidavit of Ms. O’Sullivan further exhibits a printout from the home page of the same website reflecting the position as of the 30th of April, 2012. This states:
“In compliance with the effective legal regulations the overall capacity of our establishments is lower than the accommodated number of the prisoners; therefore penal institutions are characterized by overcrowding. At present the average overcrowding rate is 139% percent.”
The court has checked the up to date position and as of the date of judgment the same information continues to be displayed on the said home page.
Counsel also referred the Court to the following passages from the judgment of the E.C.H.R. in Szél v Hungary [2011] ECHR 898 a case which he contends is both recent and “on all fours with the present case” (by which the Court infers that be means that the circumstances found in that case to constitute a breach of Article 3 of the Convention mirror the concerns expressed by the respondent in the present case).
Mr. Szél was sentenced to fifteen years imprisonment on the 20th April, 2006. Since then …
“7. . … he has been detained at Budapest Prison. At this prison, he has spent altogether over 21 months in various cells of 8.3 m2 ground surface (accommodating three inmates, i.e. 2.76 m2 per person), 21 months in various cells of6.3 m2 ground surface (accommodating two inmates, i.e. 3.15 m2 per person), over 9 months in a 6.3 m2 cell with single occupancy, and 9 months in a cell of 25 m2 ground surface (accommodating eight inmates, i.e. 3.125 m2 per person). In the material period, the average rate of occupancy of Budapest Prison was 150%; the national rate was 132% in October 2007 and 122% in July 2008.”
Merits
14. The Government submitted that the conditions of the applicant’s detention at Budapest Prison, quite independently of the ground surface available, did not amount to inhuman or degrading treatment, given that the cells were clean, well-maintained and with sufficient light and ventilation, and moreover because the applicant spent only part of his days in them, as he had been assigned outside work. The applicant contested these views, emphasising that, apart from overcrowding, in each of the cells where he had been accommodated, the toilets were separated only by a curtain, which did not provide the requisite privacy.
15. As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, §119, ECHR 2000-IV).
16. The Court further recalls that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67-68,74, ECHR 2001-III).
17. The Court has consistently stressed that a breach of Article 3 of the Convention would generally involve suffering and humiliation beyond that which is inevitably connected with a given form of legitimate treatment or punishment. Measures depriving a person of his or her liberty may often involve such elements. Thus, under this provision, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, the prisoner’s health and well-being are adequately secured (see Kudla v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).
18. The Court notes that at Budapest Prison, the applicant was accommodated for altogether over 21 months in cells with 2.76 m2 ground surface per person, for 21 months in cells with 3.15 m2 per person, as well as for nine months in a cell with 3.125 m2 per person, in each case with a toilet without sufficient privacy. It observes by contrast that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) considers 4 m2 living space per inmate an acceptable minimum standard in multi-occupancy cells (see, for example, in respect of other Hungarian prisons, paragraphs 65 and 80 of the Report to the Hungarian Government on the visit to Hungary carried out by the CPT from 24 March to 2 April 2009). The Court therefore finds that the applicant’s detention under cramped conditions at Budapest Prison failed to respect basic human dignity and must therefore have been prejudicial to his physical and mental state (see, mutatis mutandis, Savenkovas v. Lithuania, no. 871/02, §§ 81-82, 18 November 2008). Accordingly, it concludes that the overcrowded and unsanitary conditions of this detention amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.
19. Finally, mindful of the fact that the seriousness of the problem of overcrowding and of the resultant inadequate living and sanitary conditions in Hungarian detention facilities has been acknowledged by the domestic authorities (see paragraphs 8 and 18 above), the Court considers that an effective remedy responding to this issue could be offered by taking the necessary administrative and practical measures. In the Court’s view, the authorities should react rapidly in order to secure appropriate conditions of detention for detainees.”
Counsel for the respondent submits that although the ECHR urged in Szél on the 7th June, 2011 that “the authorities should react rapidly in order to secure appropriate conditions of detention for detainees,” the available evidence suggests that the opposite has in fact occurred. In that regard he relies on the July, 2011 extract from the home page of the Hungarian Prison Service’s website referred to earlier, and seeks to compare it with the more up to date information in the printout from the website dated the 30th April, 2012.
Counsel submits that the increase in the national average rate of overcrowding from 134% in July, 2011 to 139% in April, 2012 (and indeed up to the present day) indicates some deterioration in the overall position and certainly not the rapid reaction demanded by the E.C.H.R. He concedes that the national average figure is of no help to a person seeking to assess the prospects of any particular prisoner receiving living space of less than 4m2, but contends it raises a sufficient level of concern to rebut any presumption that the rights of the respondent will necessarily be respected and says that it is enough to cause the Court to seek to enquire into the matter.
He also relies upon the Kovcás case in further support of his contention that there has been little or no improvement in the position with respect to overcrowding in Hungarian prisons. In that case the applicant was arrested on the 8th January, 2008. From the 11th January, 2008 on he was detained on remand at Szeged Prison on charges of trafficking in goods subject to excise tax. On the 9th October, 2009 the Csongrád County Regional Court found him guilty as charged. Pursuant to the final judgment of the 9th June, 2010, of the Szeged Court of Appeal, he served a prison sentence of three years and six months in a strict regime at Szeged Prison. His pre trial detention was credited against his imprisonment.
The E.C.H.R. noted that Szeged Prison is comprised of two separate parts: Unit I, a strict-and medium-regime facility for sentenced prisoners, and Unit II, a facility for remand prisoners. The applicant’s pre-trial detention, which is the subject matter of his complaints, took place in various cells of Unit II, and the remainder of his detention, as from the 10th June, 2010, in Unit I. (It is a matter of some significance that this is one of the prisons in which the respondent has been detained in the past and in respect of which he makes specific complaints).
The applicant in Kovcás submitted that he had shared cells with an average of 16 sq metres’ ground surface with five to seven persons, not counting furniture, and could stay outside the cell only about an hour daily. He also stated that he could receive visitors for only one hour every month (an exception being his brother, who was granted three extra visits, lasting two hours on each occasion); however, he had not been at all allowed to touch his family members during these visits. He alleged that his rights under articles 3 and 8 respectively, of the Convention, had been breached.
In respect of the alleged violation of article 3 the ECHR stated in its judgment of the 17th January, 2012 at pgrfs. 26 and 27:
“26. The Court notes that in Unit II of Szeged Prison, the applicant was accommodated for 67 days in cells with under 4.00 sq metres’ ground surface per person (see paragraph 22 above), furnishings included. It observes by contrast that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) considers 4.00 sq metres’ living space per inmate an acceptable minimum standard in multi-occupancy cells (see, for example, paragraphs 65 and 80 of the Report to the Hungarian Government on the visit to Hungary carried out by the CPT from 24 March to 2 April 2009). The Court therefore finds that the applicant’s detention under cramped conditions at Szeged Prison in conjunction with the fact that he had to spend almost the entirety of the days inside those cells, (a non-refuted allegation- see paragraph 8 above) failed to respect basic human dignity and must therefore have been prejudicial to his physical and mental state (see, mutatis mutandis, Savenkovas v. Lithuania, no. 871/02, §§ 81-82, 18 November 2008). Accordingly, it concludes that the overcrowded conditions of this detention amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.
27. Finally, mindful of the fact that the seriousness of the problem of overcrowding and of the resultant inadequate living and sanitary conditions in Hungarian detention facilities has been acknowledged by the domestic authorities (see Szél v. Hungary, no. 30221/06, § 8, 7 June 2011), the Court considers that an effective remedy responding to this issue could be offered by taking the necessary administrative and practical measures. In the Court’s view, the authorities should react rapidly in order to secure appropriate conditions of detention for detainees.”
Moving then to the response of the Hungarian state to his client’s affidavit, counsel for the respondent has submitted that they have failed to engage in any meaningful way with the concerns raised by him.
Submissions on behalf of the applicant
In response to counsel for the respondent’s submissions, counsel for the applicant has submitted that his client is entitled to rely upon the presumption in s.4A of the Act of 2003 (as inserted by s.69 of the Criminal Justice (Terrorist Offences) Act 2005). S.4A provides that, “It shall be presumed that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown.” Moreover, recital 12 of the Framework Decision states (inter alia) that:
“This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union (1), in particular Chapter VI thereof.”
while recital 13 to the same instrument expressly asserts that:
“No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”
Counsel for the appellant submits that the Court must act on the presumption unless it considers that the respondent has put forward evidence of sufficient cogency to rebut the presumption so as to put the Court upon its enquiry. Having drawn the Court’s attention to various passages in the Court’s own judgment in Minister for Justice, Equality and Law Reform v. Mazurek [2011] I.E.H.C. 204 (Unreported, High Court, Edwards J., 13th May, 2011) he contends that no evidence of sufficient cogency had been adduced such as would justify the Court in regarding the presumption as having been rebutted.
The Court’s Decision
This Court in its judgment in Mazurek, and more recently in its judgment in Attorney General v. 0’Gara [2012] IEHC 179 (Unreported, High Court, Edwards J., 1st May, 2012), reviewed the jurisprudence of the Supreme Court concerning resistance to surrender based upon apprehended subjection to inhuman and degrading treatment, alternatively breach of the right to bodily integrity, contrary to a person’s constitutional and convention rights, and in particular a person’s rights under Article 3 of the Convention. I said in the Mazurek case that the following principles can be distilled from the authorities:
– “The normal presumption is” (per Fennelly J in Minister for Justice, Equality and Law Reform v Rettinger [2010] IESC 45) “the courts of the executing member state, when deciding whether to make an order for surrender must proceed on the assumption that the courts of the issuing member state will, as is required by Article 6.1 of the Treaty on European Union, “respect … human rights and fundamental freedoms”.” (per Fennelly J in Minister for Justice, Equality and Law Reform v Stapleton [2008] 1 IR 669);
– However, “by virtue of the absolute nature of the obligation imposed by Article 3 of the European Convention on Human Rights and Fundamental Freedoms, which provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”, the objectives of the system of surrender pursuant to the Council Framework Decision on the European Arrest Warrant cannot be invoked to defeat an established real risk of ill treatment contrary to Article 3.” (per Fennelly J in Rettinger);
– The two foregoing principles are readily reconcilable and they do not imply that “there is any underlying conflict between the Convention and the Framework Decision.” (per Fennelly J in Rettinger);
– The subject matter of the court’s enquiry “is the level of danger to which the person is exposed.” (per Fennelly J in Rettinger);
– “it is not necessary to prove that the person will probably suffer inhuman or degrading treatment. It is enough to establish that there is a ‘real risk”‘ (per Fennelly J in Rettinger) “in a rigorous examination.” (per Denham J in Rettinger). However, the mere possibility of ill treatment is not sufficient to establish an applicant’s case. (per Denham J in Rettinger);
– A court should consider all the material before it, and if necessary material obtained of its own motion. (per Denham J in Rettinger);
– Although a respondent bears no legal burden of proof as such a respondent nonetheless bears an evidential burden of adducing cogent “evidence capable of proving that there are substantial grounds for believing that if he (or she) were returned to the requesting country he, or she, would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the ECHR.” (per Denham J in Rettinger);
– It is open to a requesting State to dispel any doubts by evidence. This does not mean that the burden has shifted. Thus, if there is information from an applicant as to conditions in the prisons of a requesting State with no replying information, a court may have sufficient evidence to find that there are substantial grounds for believing that if the applicant were returned to the requesting state he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the ECHR. On the other hand, the requesting State may present evidence which would, or would not, dispel the view of the court. (per Denham J in Rettinger);
– The court should examine the foreseeable consequences of sending a person to the requesting State. (per Denham J in Rettinger). In other words the Court must be forward looking in its approach;
– The court may attach importance to reports of independent international human rights organisations, such as Amnesty International, and to governmental sources, such as the U.S. State Department.’
Applying these principles it seems to me that at its high water mark the respondent’s case only establishes a mere possibility of ill-treatment if he is surrendered but his evidence is not of sufficient cogency to establish a real risk of breach of article 3. S.37 of the Act of 2003 requires the Court to be forward looking. There is clear evidence as to overcrowding in the past in some Hungarian prisons (including one in the region of the respondents domicile, and in which the respondent has previously been detained and claims to have been ill-treated) at a level amounting to a violation of article 3. However, there is no evidence as to what is the present day situation with regard to overcrowding in Hungarian prisons apart from the statement that appears today on the home page of the Hungarian Prison Service website that acknowledges that some overcrowding continues to occur and that “the average overcrowding rate is 139% percent.” There is a complete evidential deficit with regard to prisons in the respondent’s specific region of domicile. In that regard counsel for the respondent has very fairly conceded that it is impossible to extrapolate from the general to the specific in as much as the national average figure is of no help to a judge seeking to assess the prospects of any particular prisoner receiving living space of less than 4m2.
The Court again adopts with approval the following remarks of Latham L.J. in Miklis v. Deputy Prosecutor General of Lithuania [2006] 4 All E R 808 (to which I also referred in my judgment in 0’Gara) where he stated at p. 813:
“It is, however, important that reports which identify breaches of human rights, or other reprehensible activities on the part of governments or public authorities are kept in context. The fact that human rights violations take place is not of itself evidence that a particular individual would be at risk of being subjected to those human rights violations in the country in question. That depends upon the extent to which the violations are systemic, their frequency and the extent to which the particular individual in question could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse.”
The evidence in regard to an apprehended breach of article 8 of the Convention is even more tenuous than it is in the case of the claim based upon an apprehended breach article 3, and it also fails to reach the degree of cogency necessary to rebut the s.4A presumption.
In my judgment the evidence adduced by the respondent lacks the degree of cogency necessary to displace the presumption that the issuing state will respect the respondent’s fundamental rights including his rights under articles 3 and 8 of the Convention, respectively, and his rights under the Constitution. The Court is not therefore disposed to uphold the s.37 objections in this case.
Conclusion
The Court is disposed in all the circumstances to surrender the respondent and will make an Order under s.16 of the Act of 2003 to that end.