EAW Process Initiation

Cases

MJELR -v- Hall

[2008] IEHC 155 (30 May 2008)

 

Neutral Citation Number: [2008] IEHC 155
THE HIGH COURT
Record Number: 2007 No. 175 Ext.
Between:
Minister for Justice, Equality and Law Reform
Applicant

And

Charles Hall
Respondent

Judgment of Mr Justice Michael Peart delivered on the 30th day of May 2008:

The surrender of the respondent is sought by a judicial authority in the United Kingdom so that he can serve two sentences of imprisonment imposed upon him on 6th March 2000 in respect of handling stolen goods, and so that he can face prosecution in respect of three other offences of handling stolen goods, theft, and escaping from lawful custody. These are well-known types of offence in this jurisdiction. No issue is raised in respect of correspondence in relation to any of the offences referred to in the warrant, and I am satisfied that they offences correspond to offences in this jurisdiction.

No issue is raised either on this application as to the identity of the respondent, and the Court is satisfied that the respondent before the Court is the person in respect of whom this European arrest warrant has been issued.

Minimum gravity is satisfied both in respect of the length of sentence remaining to be served, and in relation to the offences yet to be prosecuted.

Subject to addressing the points of objection raised by the respondent I am satisfied that there is no reason to refuse to order surrender under sections 21A, 22, 23 or 24 of the European Arrest Warrant Act, 2003, as amended (“the Act”), and that his surrender is not prohibited by any provision in Part III of the Act, or the Framework Decision.

The first issue raised by the respondent is one of unexplained delay on the part of the issuing state in the issue and execution of the warrant in respect of the offences yet to be prosecuted. These offences date back to 1999/2000, whereas the domestic warrants on which the European arrest warrant has been issued did not issue until June 2005. It was not until 1st October 2007 that the European arrest warrant issued. It was transmitted to the Central Authority here in November 2007, on foot of which he was arrested on the 13th November 2007.

The respondent states that while he was serving the terms of imprisonment referred to in the warrant, he received threats from a person to whom he owed a substantial sum of money, and that he was told that this person knew the whereabouts of his family. He says that he was threatened with a blood-filled syringe and informed that he should get his wife to pay over the money in question. He never made any report of these threats but applied for a transfer. However, before any decision was made, the respondent decided to leave the open prison where he was serving his sentence because he became aware that a threat had been made to his wife by two men who approached her in a food outlet and attempted to kidnap their son, and threatened that if she did not pay over the amount owing by the respondent they would return for their son. At that point, according to the respondent’s affidavit, his wife went to reside with her mother, and was too scared to leave that house in order to visit the respondent in prison. She conveyed this information to the respondent by telephone. The respondent states that on hearing this information he panicked and left the open prison so that he and his family could seek safety in this country.

He states that he and his family have lived openly here since the year 2000 and that in 2003 he started a business servicing trucks and heavy machinery, and this has enabled him to modestly provide for his family.

He states that the West Mercia Police have been aware of his whereabouts in this country since the year 2000. He submits that this delay is unexplained and that there is a real prejudice to him now if surrendered to face trial on the outstanding charges because he can no longer recall the name of the prison inmate in whom he confided at the time these alleged threats were made in 2000, and who assisted him in his escape from that prison. Neither can he recall the name of the prison officer who was aware of the threat. He states also that as a result of this passage of time he cannot accurately reconstruct the chain of events and has forgotten names and places, and further that a car in question is no longer available for forensic examination. Neither can he remember the names of relevant witnesses.

Linked to these submissions is the fact that during the period of delay alleged, the respondent’s personal and family circumstances have changed substantially, that he has set up a new home here, and has never attempted to conceal his presence here or his identity. He states that he and his wife have fostered a young child while here and expect to foster a second child in the near future and that an order made for his surrender will have a severe impact of these family members, including his elderly parents who live with him. I have read affidavits filed by family members which confirm these matters. However, no matter how difficult life may become for the respondent’s family upon his surrender, it is not a matter to which this Court can have regard when considering whether or not an order should be made under s. 16 of the Act. This cannot be a ground for refusal under the Framework Decision or the Act, even though there is provision for an application in s. 18 of the Act for postponement of surrender on “humanitarian grounds”. That is not a matter for consideration at this particular stage.

It is quite clear by now that an objection based on delay is not one which this Court can regard as a ground which prohibits surrender to the issuing state, and that any fears that the respondent has that he cannot now obtain a fair trial are matters to be ventilated in the courts of the issuing state, and not here. This follows clearly from the judgment of Fennelly J. in Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 ILRM 267. It would be inappropriate for this Court therefore to examine and express any view on whether the matters referred to by the respondent could amount to a sufficient prejudice to prohibit his trial, since if at all these will be the subject of a determination before a court in the issuing jurisdiction.

A second objection to surrender has been put forward. It is to the effect that his arrest under the European arrest warrant was improperly facilitated by members of An Garda Siochana by having him available at Tallaght Garda Station on the date of arrest, namely 13th November 2007, he having been arrested on a charge of making a threat to kill, which was subsequently dropped for lack of any evidence. He states that having been arrested on that charge he was not questioned in relation to it, but was detained overnight and given bail on the following day by the High Court. He goes on to state that when that matter came before Tallaght District Court on the 3rd December 2007 the prosecution offered no evidence of arrest, charge and caution. Behind his submission is one to the effect that the officer who arrested him on the 13th November 2007 at Tallaght Garda Station did so having made arrangements with his colleagues in Tallaght Garda Station to arrest the respondent on a false charge simply to facilitate him being available for arrest on foot of this European arrest warrant. This of course is completely denied by Sgt Anthony Linehan who arrested him on foot of the present warrant. In his affidavit he states that when he received this endorsed warrant for execution he made enquiries and discovered that the respondent was also wanted by Gardai at Tallaght. He spoke to a member at that Garda Station who told him that she had received a complaint about certain matters, and that the DPP had directed that the respondent be charged with certain offences, and further that she intended seeking out the respondent on the 13th November 2007 in order to arrest him and charge him with those offences. Sgt Linehan then made his way to that Garda Station on the 13th November 2007 and arrested the respondent on foot of the present warrant.

In my view there is absolutely no room for the suggestion that Sgt Linehan and the Gardai at Tallaght Garda Station conspired to produce a situation where the respondent would be conveniently available for arrest there on the 13th November 2007, by concocting a charge against him so that they could arrest him and make him available to Sgt Linehan. The fact that the charge was later dropped or not proceeded with is not of itself evidence of anything of the kind suggested by the respondent. In any event, it is perfectly clear that there was no mystery about the respondent’s whereabouts. Sgt Linehan could easily have made his arrest by finding the respondent at his home address. It is a completely unwarranted and unsubstantiated allegation of an unlawful conspiracy on the part of members of An Garda Siochana, and I reject it completely.

The Court is obliged to make the order sought under s. 16(1) of the Act, and will so order.

 

MJELR v Johnston

[2008] IESC 11 (12 March 2008)

Judgment by: Macken J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Macken J.
Appeal dismissed – affirm High Court Order
Kearns J., Finnegan J.

 

 

THE SUPREME COURT
105/07

Kearns J.
Macken J.
Finnegan J.

IN THE MATTER OF THE EUROPEAN ARREST WARREST 2003

 

Between:

The Minister for Justice Equality and Law Reform
Applicant/Respondent
David Johnston
Respondent/Appellant

Judgment delivered on the 12th day of March by Macken, J.
This is an appeal by the respondent/appellant against the judgment and order of the High Court (Peart, J.) made on the 27th March 2007 pursuant to which he ordered him to be surrendered to the United Kingdom on foot of a European Arrest Warrant dated the 25th July 2006, the learned trial judge having been satisfied that there were no grounds on which he should refuse to surrender the respondent/appellant.

The grounds of appeal, numbering ten in all, can readily be divided into two main groups, and these two have been addressed in detail in the written submissions filed on behalf of each party. The first group concerns the underlying domestic warrant issued in April 2001 in Scotland, and the second concerns an allegation of delay in seeking his surrender and in particular the medical (including psychiatric) condition of the respondent/appellant during that delay period. The legal bases upon which these grounds are put forward are more fully considered below.

It is appropriate to deal with the second ground first, that is to say, that of delay. This is based essentially on two arguments. The first, of a general nature, is that the respondent/appellant came to Ireland some years ago, established himself here and has set up a business and moved on with his life. It is further argued that he has suffered from a medical/psychiatric condition which has been exacerbated by the present proceedings and is allied to a fear on his part that he will, if he is returned to the United Kingdom, be attacked and tortured, as he was prior to coming to Ireland. In these circumstances it is claimed that it would be in breach of his constitutional rights arising from the very act of surrender, to grant the order sought.

Insofar as the question of delay is concerned the learned High Court judge found as follows:

“He (the respondent/appellant) goes on to say that it was at all times known that he was in Ireland. He believes that his surrender after such a length of time and in the light of his medical condition and his fears would be contrary to the principles of fundamental fairness and contrary to justice. He goes on then to say that he set up his home and business in Galway, that his life has moved on. I have considered the issue raised as to delay. It is a fact that the offences which have given rise to this application occurred in 2001, about 7 years ago … .
As to the point of general delay since the date of commission of these offences, the respondent has not set forth in his grounding affidavit any prejudice which he says exists as to his capacity to defend himself against the charges.

The medical ground really is the only aspect of delay which can be relied upon to any extent. I am satisfied from the medical evidence that his medical condition is not of sufficient gravity to merit this court in adopting the course that it took in the SR case, where much graver circumstances existed as to the risk to the life to that respondent. So I reject the point of objection raised in relation to delay both in its general plea and by reference to the medical condition.”

The learned High Court judge had before him the applicant’s affidavit which expressed considerable worry for his safety on the basis that he had been attacked in the past, “beaten and tortured” in Scotland and forced out of the country, and that he would have been killed if he had stayed. These events, assuming that they occurred and there is no reason to believe otherwise, are events which were carried out by former associates of the respondent/appellant. Although in the High Court he expressed the view that he could not be protected, that is to say, could not be protected by the Scottish police, there was no evidence adduced by the respondent/appellant that the appropriate prison authorities or the police forces in Scotland or elsewhere in the United Kingdom, if he was travelling through the United Kingdom to Scotland upon surrender, could not adequately and properly protect him. This court emphasises and accepts that the United Kingdom, as a signatory to the European Convention on Human Rights and Fundamental Freedoms, and otherwise in law, is obliged by all reasonable means to protect his safety, and the mere assertion that he could not be protected cannot be taken as evidence of that fact (see, L.C.B. v United Kingdom [1998] 27 E.H.R 212). There is no evidence that the learned trial judge misdirected himself in drawing the inferences which he did from the materials before him. In the circumstances the learned trial judge’s determination on this ground of fear, forming part of the delay ground, was not in any way incorrect.
Secondly, in relation to the question of general delay, a further relevant factor exists. When the alleged offences, which were for the possession, and the possession for sale, of various types of drugs including diamorphine (heroin), cannabis, ecstasy and another drug, took place in 2000, the respondent/appellant was admitted to bail. He did not meet his bail terms and failed to appear on the 9th April 2001 at the High Court in Glasgow and a warrant for his arrest was granted. Upon being granted bail, he had, on his own admission, fled to Ireland to avoid the charges and the unwanted attention of the persons who were intent on doing him harm. While he asserts that it was known he was in Ireland, there is no evidence to support this assertion other than that in the year 2005 he was stopped in Holyhead by the United Kingdom police (investigating possible terrorist activities) and gave an address in Galway. It has long been established in the case law that delay which has been caused by the actions of a person invoking delay as a ground for resisting an order cannot, in ordinary circumstances, be a valid ground to sustain the claim. In the case of the Minister for Justice Equality and Law Reform v Stapleton, unreported, the Supreme Court 26th July 2007, Fennelly J. said the following:

“The authorities already cited support the rather obvious proposition that a person will not be heard to claim that delay in the prosecution of extradition proceedings is unfair or oppressive where he has himself been the author of the delay.”
I am satisfied that at least from 2000 or 2001 until June 2005 when the respondent/appellant was stopped in Holyhead, as mentioned above, the period of delay in question cannot be invoked by him for the purposes of resisting his surrender to the United Kingdom authorities on grounds of the alleged delay in seeking an order in that regard.
Even if the learned High Court judge could be said to have failed to have particular regard for the period of delay between when the respondent/appellant was stopped in Holyhead in 2005 and the time when the European Arrest Warrant issued in July 2006, and that period could be viewed as excessive, which I do not accept, the respondent/appellant cannot succeed on this ground, having regard to the decision of this court in the case of Minister for Justice Equality and Law Reform v Gardner, unreported, Supreme Court 30th July 2007, and in particular the following statement in the judgment of Finnegan J. :

“Firstly the respondent is the principal culprit in relation to the delay upon which he relies, he having failed to attend court for the purposes of criminal proceedings against him, he is disabled from relying on that delay. Secondly and more importantly, the issue of delay is one to be dealt with in the court of trial, unless the respondent can establish by clear and cogent evidence a clear and fundamental defect in the system of justice of the requesting State such that the refusal of the application for surrender is necessary to protect his constitutional rights. In this case the appellant has not sought to establish any such defect in the system of justice in the United Kingdom of Great Britain and Northern Ireland.”
Having regard to the foregoing jurisprudence, I find that the learned trial judge did not misdirect himself in law in respect of any aspect of the grounds based on general delay. Nothing has been adduced in evidence by the respondent/appellant in respect of the judicial system applicable either in the United Kingdom, or more particularly in Scotland, which would constitute a clear and fundamental defect in the system of justice of the type referred to in the case of Gardner, supra.
Turning now to the final aspect of the claim based on delay, that relating to the medical and/or psychiatric condition from which the respondent/appellant suffers, I am of the view that the he has made out no case on this ground either. There is no doubt, having regard to the evidence filed, that he suffers from a psychiatric condition, which is of some considerable concern to his medical team, as is evident from the psychiatric reports furnished on his behalf, and exhibited in his own affidavit. The first of these is dated November 2006, the second December 2006 and the third at the end of January 2007. It seems clear from the first of these reports that the respondent, although in the country since 2000 or 2001, does not appear to have been admitted into any psychiatric unit nor does he appear to have been the subject of any psychiatric assessment or treatment in the State in the period prior to his admission to University College Hospital in early October 2006 and his first assessment there in early November 2006, he having been arrested on foot of the European Arrest Warrant on the 31st August 2006. He was however treated previously in the United Kingdom for his psychiatric condition and/or symptoms.

It must be accepted by this court, as it was accepted by the learned High Court judge, that his medical condition is serious. Several matters are, however, of importance. Firstly, in the most recent psychiatric report dated the 29th January 2007 the consultant forensic psychiatrist opined that the respondent/ appellant “clearly understood the nature of the charges against him, was familiar with court proceedings, understood the various plea options available to him and their implications, was fit to instruct counsel, was fit to follow proceedings, and was fit to be tried”. Secondly, more than one of the reports raised the possibility that some or other of his symptoms may or appear to have been feigned. Thirdly, it was recommended that the respondent/appellant was to be treated as a vulnerable prisoner given his reported history of significant harm to himself, and a recommendation was made in the most recent report that in the event the respondent/appellant was surrendered, his psychiatric position as well as the risks to himself (such as suicide) should be communicated to the appropriate authorities in Scotland.

The learned trial judge had before him ample material upon which to reach the view that he could properly distinguish between the gravity of the medical position of the present respondent/appellant and the rather grave circumstances which existed as to the imminent risk to life of the respondent in the case of Minister for Justice Equality and Law Reform v S.R., (unreported), High Court, 15th November 2005, that risk arising by virtue of the surrender itself, the High Court judge refusing, in those circumstances, to surrender Mr. R. At the time of the judgment in the present case, the decision of this Court in the appeal in the latter case had not been heard or determined.

It is telling to note the decision of this Court in its judgment on that appeal on the issue of the surrender of a person suffering from serious illness. In the latter case, the judgment of Finnegan, J. found that this Court must “balance the risk to the health of the Respondent directly related to his surrender on the one hand and the obligations of the State under the Framework Decision”. The judgment also referred to a decision on a similar issue in Carne v Assistant Garda Commissioner Patrick O’Toole, unreported 21st April 2005, a case determined under the earlier legislation relation to extradition, in which this Court held that the Respondent’s medical condition, which included an earlier stroke, high blood pressure, extensive vascular disease as well as coronary disease, and symptoms which would require nineteen days in hospital and a further period of six months for full recovery, was nevertheless not such as to constitute an exceptional circumstance for the purposes of section 50(2)(bbb) of the Extradition Act 1965.

In the judgment of Finnegan, J. in the S. R case, he stated:

“The evidence as to the Respondent’s health is not such as would prevent a person in similar circumstances to the Respondent being put on trial in this jurisdiction. In the present case there is no suggestion that the Respondent’s ability to recollect events is affected. Nor is it suggested that he would be incapable of adequately instructing his solicitor and counsel or of actively participating in his trial. The sole issue for the court is whether … the fact that psychological or physical stresses attending his surrender may precipitate acute coronary disease and should if at all possible be avoided outweighs the interest of the requesting authorities in having the alleged offences prosecuted.”
Having considered the medical evidence presented, he continued:
… having regard to the onus on this issue which rests on the respondent, I am satisfied that in the United Kingdom, and whether on bail or in custody, the Respondent will receive appropriate health care. While Dr. Kearney is of opinion that stress may precipitate acute coronary disease and should be avoided I am satisfied that something much more definite by way of threat to life would be required in this jurisdiction before the courts would involve article 40.3.2. of the Constitution and prohibit a trial. The possibility that stress may precipitate acute coronary disease, I am satisfied, is insufficient. The evidence before the court and in particular the medical report of Dr. Peter Kearney, the Respondent’s treating consultant, does not justify the learned trial judge’s conclusion that the Respondent is at a real risk of dying if placed in any situation of severe stress. The report, as I understand it, is to the effect that a further acute coronary event might well prove catastrophic in further limiting heart muscle pump function. The report read in conjunction with the other medical reports relied upon does not justify the learned trial judge’s conclusion that the Respondent is at a real risk of dying if placed in any situation of severe stress.
I would allow the appeal on this ground.”

I do not consider it either desirable or appropriate that a detailed comparison should be made between the medical condition of one person being sought to be surrendered, as against that of another person being sought to be surrendered, as it is sought by the respondent/appellant, by implication, to do in the present case. But if it were necessary to do so, I would consider his medical, including psychiatric, condition, to be less serious than that of the appellant in the case of S. R., supra. I do not, however, base my judgment on such a consideration. Rather, I am satisfied that the learned trial judge did not misdirect himself in his assessment of the nature of the respondent/appellant’s own medical, including psychiatric, condition even though his counsel argued that in the present case, the danger to him arises from the very fact of surrender, as was argued also in the case of S. R.. Nothing submitted in the course of this appeal supports the contention that the learned trial judge came to a wrong conclusion on the materials before him. In this Court, on the evidence presented, I am satisfied that there are no medical evidence upon which a different view should be adopted on this appeal. The respondent/appellant is at present under the care of medical authorities in this jurisdiction and equally, until he is surrendered, he will continue to be protected and treated for his medical condition.
I do not take into account either, in reaching my view in relation to the psychiatric condition of the applicant and the High Court judge’s finding, the fact that some or other of the psychiatric reports raised an issue in respect of the possibility of feigned symptoms, but have considered the evidence relating to his condition in a light most favourable to him. It has to be borne in mind, as has been stated by this court in previous cases, including the S. R. case, supra. ,that the United Kingdom and the authorities in all its constituent parts are obliged to protect the respondent/appellant, having regard to his medical, including psychiatric, condition. There was nothing before the High Court, and there is nothing before this Court, which would suggest that he would not be fully assessed and treated for his particular medical, including psychiatric, difficulties, there, upon surrender, or that his mere surrender would have the effects contended for by counsel on his behalf.

The grounds of appeal based on delay, including delay with regard to the medical condition of the respondent/appellant, are in my view unsustainable and I reject them in their entirety.

I now turn to the second ground of appeal which concerns the legitimate expectation claimed by the respondent/appellant, that he would not be the subject of any prosecution arising from the warrant for his arrest issued in 2001. To understand the case made by him in that regard it is necessary to set out the background which gives rise to this ground, before considering the manner in which the learned High Court judge dealt with it. The European Arrest Warrant issued on the 25th July 2006 by the Glasgow Sheriff’s Court and was based on a domestic warrant issued for the arrest of the appellant and dated the 18th April 2001, arsing from his failure to appear at the High Court of Glasgow to answer an indictment in respect of certain charges, he having been granted bail. The European Arrest Warrant itself sets out in some considerable detail not only the charges but all of the facts and matters giving rise to the charges. Basically the charges concern the sale and supply of controlled drugs. On his own evidence, the respondent, having been granted bail, fled to Ireland. It is not known and the respondent/appellant does not say, how frequently, if at all, he visited the United Kingdom and/or Scotland since he came to Ireland, but on one occasion, on the 16th June 2005, he travelled to the United Kingdom by car, passing through Holyhead. In his affidavit sworn on the 27th February 2007 John O’Leary, solicitor to the respondent/appellant, avers as to the inquiries which he made in relation to the interaction between his client and the appropriate authorities in Holyhead on that occasion.

The respondent/appellant averred in his own affidavit sworn on the 3rd day of February 2007 that he had been stopped in Holyhead on that occasion “when travelling from Ireland”. He continues:

“5. It was noted that I was listed as a person against whom a warrant had issued. The Special Branch officer who stopped me made a call to Scotland to ascertain if I was still wanted. I was informed that I was not and proceeded on my way.
“6. In the circumstances I was led to believe that the prosecution against me was not to continue. As a result I had a legitimate expectation that he (sic) was no longer wanted. I believe it would be unfair and contrary to justice to proceed against me now.” (emphasis added)

Mr O’Leary received two letters from the authorities in Scotland one dated the 16th February 2007 from the United Kingdom Revenue and Customs Service (the anti-smuggling team) who were of no assistance in the matter, but who drew attention to the fact that the respondent/appellant had been stopped by Special Branch at Holyhead. By letter dated the 20th February 2007 a detective sergeant of the North Wales police wrote confirming that on the 16th June 2005 the respondent/appellant who was “inbound into the UK from Dublin” was stopped and questioned at Holyhead port by officers executing powers under the Terrorism Act 2000. He went on to state as follows:
“From our records I am able to say that background checks were conducted on Mr Johnston, during which information came to light that a warrant was outstanding, originating in Scotland. Our records do not identify the relevant police force in Scotland. I am able to tell you that contact was made with Inspector James Haddow from the Scottish force who advised the examining officers that Mr Johnston was no longer wanted at that time. As a result Mr Johnston was allowed to continue his journey.”
Attached to that letter was a photocopy of a record maintained by the North Wales police referring to the respondent and recording that the search was carried out with the object of “prevention of terrorism”, and mentions also an offence which is described as “unspecified”. This form is dated the 16th February 2007.
On the basis of the foregoing information and averments the respondent/appellant contends that he was “led to believe” that the prosecution against him was not to continue. As a result he avers that he had a “legitimate expectation, that he was no longer wanted”, and “I believe it would be unfair and contrary to justice to proceed against me now”. That is the basis of the legitimate expectation together with the averments of Mr O’Leary as to the steps he took and the responses received from the North Wales police.

The legal argument upon which the applicant proceeds is based to a significant extent on the decision of this court in the case of Eviston v The Director of Public Prosecutions [2002] 3 IR 260. Counsel on behalf of respondent/appellant contends, for the reasons which will be discussed further below, that the learned High Court judge was wrong in law in distinguishing between the facts and matters giving rise to the legitimate expectation claim in the present case and that which was determined in favour of the plaintiff in the Eviston case, supra. Counsel on behalf of the applicant/respondent contends that the learned High Court judge correctly distinguished the cases, and that in any event the respondent/appellant could have no valid or legitimate expectation that the warrant issued against him constituted a decision made not to prosecute him at any future date.

In the High Court the learned trial judge dealt with the matter in the following terms:

“The remaining ground is that of the legitimate expectation that he would not be proceeded against. I have already referred to his grounding affidavit and in particular to paragraph 5 in that regard. Mr Kelly on his behalf referred the court to the case of Eviston, which is a well-known case but that in my view can be distinguished from the present case on the basis that in the Eviston case it was in fact the Director of Public Prosecutions who communicated directly with the accused person that a decision had been made not to prosecute. In the present case the information conveyed was by police officers manning the post at Holyhead. In my view that conversation cannot be read or interpreted as a confirmation of anything other than that at that time he was not required to be taken into custody. It cannot in my view be read as precluding the authorities from deciding to proceed at any later date.
I am satisfied that the requesting judicial authority has made decision to prosecute the respondent: that is a decision that they are entitled to make and it is set forth in the European Arrest Warrant that such a decision has been made. … This court must, in spite of any impression which the respondent took from the conversation on the 16th June 2005 respect the right of the prosecuting authority in Scotland to proceed against the respondent, and that is in accordance with the high level of trust and confidence which must exist between member states who are parties to the Framework Decision.”

It is in my view important to understand precisely what is contended for on the part of the respondent/appellant. It is that by virtue of the exchanges or conversations arising between him and a member of the United Kingdom police charged with investigating possible terrorism, and as a result of a conversation which the latter had with a named police officer in Scotland, the respondent/appellant would not be prosecuted for the offences in respect of which he had been charged. That is what the respondent/appellant clearly avers at paragraph 6 of his affidavit quoted above. He does not claim merely that the warrant for his arrest, his having failed to answer his bail in Scotland, was no longer valid or could no longer be operated upon. Rather his contention is that he was not to be prosecuted on the charges, because the warrant in question was, pursuant to the above conversations referred to, not to be pursued.
The law relating to legitimate expectation has long been the subject of judgments in this jurisdiction, in the United Kingdom and undoubtedly in Scotland and in many other jurisdictions. It is true also that it has been an evolving area of the law and it may well be that the principles applicable to the doctrine of legitimate expectation have not yet been fully expounded. What is however clearly established in the case law in this jurisdiction, in Northern Ireland and elsewhere is the following primary principle. The expectation which a person is entitled to hold is one which must in all the circumstances of the case be reasonable or legitimate for him to hold. It has been stated in Daly v Minister for the Marine , (Unrept’d, Supreme Court, 4th October 2001), as follows:

“The learned trial judge decided the case essentially on the facts. The applicant did not, he held, have an expectation which was reasonable or legitimate for him to have. The very name of the doctrine demonstrates, in my view, that his approach is correct. If authority were needed for this self-evident proposition it is to be found in express terms in the judgment of this court in Wiley v The Revenue Commissioners (No. 2) [1994] 2 IR 160. Blayney J. in the High Court and both Finlay C.J. and McCarthy J. accepted that the plaintiff, … expected, as a fact, that he would be granted a refund of excess tax … . He had received a refund on previous occasions but the Minister altered the terms of the scheme so as to require medical evidence that the applicant possess the disability described in the scheme. He did not however in the view of the court have an expectation which was legitimate.
The Minister relied upon the following passage from the judgment of Barr J. in Canon v Minister for the Marine [1991] 1 IR 82, which seems to me to distil the essence of the doctrine, which is fairness:

… the concept of legitimate expectation, being derived from an equitable doctrine, must be reviewed in the light of equitable principles. The test is whether in all the circumstances it would be unfair or unjust to allow a party to resile from a position created or adopted by him which at that time gave rise to a legitimate expectation in the mind of another that that situation would continue and might be acted upon by him to his advantage.” (emphasis added)

For the purposes of this judgment I do not consider it necessary, strictly speaking, to go beyond the above definition because it seems to me that the respondent/appellant has presented no evidence whatsoever upon which such a conversation taking place in the circumstances in which it did, could constitute a reasonable or legitimate expectation either that the warrant was thereafter wholly inoperable or could have as its consequence that the “prosecution would not be proceeded with” as contended for, save for his reliance on the Eviston decision, which I consider to be of little assistance to him.
What was absolutely certain in the Eviston case was that there had been a decision made by the appropriate decision maker, namely, the Director of Public Prosecutions, that he would not prosecute the applicant, Ms Eviston, in respect of a certain traffic offence. Evidence was given in this regard on his behalf. The Director of Public Prosecution reviewed the file and, in effect, changed his mind coming to the view that Ms Eviston should be prosecuted after all. She had been notified of the first decision by the Director of Public Prosecutions not to prosecute her, and had subsequently been notified, without intervening warning or changes in any factual matter, that the Director had changed his mind. The decision in the Eviston case is based on legitimate expectation in the sense that this doctrine required the Director of Public Prosecution to operate fair procedures. While he was found to be permitted in law to change his mind and come to a different decision to that previously made, the court found that fair procedures dictated that when he first notified Ms Eviston that she would not be prosecuted he ought to have, in law, so as to ensure fair procedures, informed her at the same time of the possibility that his decision could be reversed at any time in the future. Not having done so, he had created a legitimate expectation in Ms Eviston that she would not be prosecuted. Counsel for the respondent/ appellant relies on the Eviston case and says that the law concerning legitimate expectation, even insofar as fair procedures are concerned, apply by analogy to the exchanges which took place at Holyhead with the respondent/appellant in June 2005.

While it is true that the learned High Court judge, erroneously at first sight, appeared to base his decision on the fact that the applicant in the Eviston case was notified directly by the Director of Public Prosecutions of the decision he had made, and the respondent/appellant in the present case was notified of the decision by police officers in Holyhead, I am not convinced that this is a correct reading of the true import of the judgment. The learned High Court judge, it seems to me, took the view that a decision had been made by the appropriate authority, namely the Director of Public Prosecutions, who communicated that information directly to the accused (although in fact it was communicated indirectly). On the other hand the information conveyed in the present case was by police officers manning the post at Holyhead, and the learned trial judge said “that conversation cannot be read or interpreted as confirmation of anything other than that at that time he was not required to be taken into custody. It cannot in my view be read as precluding the authorities from deciding to proceed at any later date”.

I am of the view that a correct reading of the learned High Court judge’s judgment is that in the Eviston case the evidence before the court, and admitted, was the evidence of the decision maker. In the present case the warrant for the arrest of a person is a judicial document authorised and issued in this case also by a judicial authority (the High Court of Glasgow). There was before the learned High Court judge no evidence whatsoever that any decision had been made by the appropriate decision maker, that the prosecution would not or could not proceed. Still less could it be concluded from the evidence adduced to the High Court that the exchanges, in Scottish law or under the law of the United Kingdom (if otherwise applicable), had as their legal consequence that the warrant could not be pursued, if not executed in Holyhead at that time. The legal consequences or the effect of the exchanges is a matter which could not be investigated by this court, since it is a matter within the jurisdiction of the Scottish courts, and moreover the learned High Court judge had no evidence whatsoever, as to Scottish law on the matter.

I conclude that the learned High Court judge correctly came to the view that the conversations and exchanges which took place in Holyhead “cannot be read as precluding the authorities from deciding to proceed at any later date” in respect of the warrant and did not in any way err in concluding that the principles set forth in the Eviston case did not apply to the facts arising in the present case. Nor could it, if this court were determining the matter de novo on the same affidavit evidence, lead to the conclusion that the applicant has a legitimate expectation that “the prosecution again me was not to continue”.

Having regard to the foregoing I find that there was no error in law on the part of the High Court judge, and that the respondent/appellant cannot succeed on any of the grounds of appeal.

I would dismiss the appeal in its entirety.

Minister for Justice, Equality and Law Reform v  Zielinski

 

(respondent) [2011] IEHC 45

JUDGMENT of Mr Justice John Edwards delivered on the 10th day of February, 2011.
Introduction
The applicant is a Polish national and he is the subject of an European Arrest Warrant issued by the Republic of Poland on the 18th of August 2009. That warrant was received in this jurisdiction on the 12th of October 2009 and was endorsed for execution by the High Court on the 20th of October 2010. The applicant was duly arrested on foot of this warrant on the 9th of November 2010 and was then brought before the High Court in accordance with s. 13 of the European Arrest Warrant Act, 2003 (as amended) (hereinafter “the 2003 Act”) whereupon the Court, having fixed a date for the purposes of s.16 of the 2003 Act, remanded him in custody to Cloverhill Prison pending the s.16 hearing in the matter. The applicant now seeks to be released on bail pending that hearing, and the respondent has indicated that he has an objection to bail being granted.

The nature of the European Arrest Warrant in this case
The European Arrest Warrant in question is a conviction warrant on foot of which the applicant is sought for the purpose of having him serve out the balance of sentences imposed upon him by the District Court in Gdynia on the 17th of February, 2006, the 5th of May 2004 and the 24th of February 2005, respectively, in respect of three offences contrary to Art 280.1 of the Polish Penal Code (these are robbery with violence type offences) and one offence of contrary to Art 226.1 of the Polish Penal Code (being the offence of insulting a police officer on duty). The balance of the sentences to be served may be particularised as follows:

(1) The applicant is required to serve 3 years in prison in respect of the first two robberies in time, both of which were perpetrated on the same day, namely the 8th of December, 2004, and which it is understood were prosecuted together under case reference II K 168/05. This sentence was imposed on the 17th of February, 2006.
(The warrant does not make clear whether, in respect of these crimes, the applicant received two three year sentences to run concurrently, or whether the three year sentence imposed related only to one offence with the other matter being taken into account. This can be clarified in due course by the seeking of additional information from the issuing judicial authority and it is not a matter which need concern the court in its consideration of this bail application.);

(2) The applicant is also required to serve 1 year, 10 months and 25 days in prison for a further robbery, which was perpetrated on the 28th of June 2003. This sentence was imposed on the 5th of May 2004, and the case was prosecuted under case reference II K 1460/03; and

(3) The applicant is also required to serve 10 months in prison for the offence of insulting a police officer on duty at Gdynia on the 12th of September 2004. This sentence was imposed on the 24th of February 2005 and was prosecuted under case reference II K 131/05.

The affidavit grounding the application
The grounding affidavit was sworn herein by the applicant’s solicitor, a Ms Tracy Horan, who deposes that she is a partner in the firm of D’Arcy Horan, Solicitors, of Kingsbridge House, Parkgate St, Dublin 8. Strictly speaking the affidavit should have been sworn by the applicant personally, but the court will overlook the irregularity, and the hearsay nature of the evidence, having regard to the fact that English is not the applicant’s first language and it may therefore have been logistically easier for the solicitor to swear the affidavit based on instructions received.

Ms Horan deposes, inter alia, to the fact that her client has not previously applied for bail in these proceedings. However, it is conceded that the applicant is the subject of domestic proceedings and that on the 18th of September 2010 he was granted bail by the High Court in those proceedings in terms requiring (a) a cash lodgement of €100 in respect of his own bond, and (b) a further cash lodgement of €400 by an independent surety. Ms Horan states that the applicant was not in a position to take up bail and that on the 27th of September 2010 he made an application to the High Court to have his bail reduced. The matter came on for hearing before Mr Justice Hanna on the 6th Of October 2010, and the application was refused.

Ms Horan further deposes that the applicant’s father, Mireck Zieliñski and mother, Mariola Zieliñski, came to Ireland eight years ago. It is asserted that all of the applicant’s close family reside here including his brother, his brother’s partner and their son, his uncle and his five first cousins.

She further deposes that until early January 2010 the applicant had a job in a factory in Waterford and prior to that he had worked with Roadstone. She asserts that the applicant has no real ties to the Republic of Poland.

Ms Horan further deposes that the applicant is of limited means but that his father and/or mother are willing to stand as an independent surety for him. She states that if granted bail pending the determination of these extradition proceedings (the court’s emphasis) the applicant will reside with his father and mother at 12 Clodack Road, Avandale Road, County Waterford and will comply with whatever conditions are ordained by this honourable Court. (This Court would remark that, strictly speaking, Ms Horan is incorrect in characterising proceedings under the European Arrest Warrant Act, 2003 as “extradition” proceedings. They are more correctly to be characterised as rendition proceedings, alternatively surrender proceedings, as was made clear by Denham J in Minister for Justice, Equality & Law Reform v Altaravicius [2006] 3 IR 148, at 171, and by McKechnie J in O’Sullivan v Chief Executive of the Irish Prison Service & Ors [2010] IEHC 301).

She further states that the applicant undertakes to surrender his passport and / or his identity card and that he will undertake not to apply for any travel documentation or replacement passport/identity card. Further, she states that the applicant is prepared to sign on at Waterford Garda station on three days each week between 9 am and 9 pm.

Finally, Ms Horan deposes that the applicant has not taken warrants in the past.

The objection to bail
The nature of the respondent’s objection to bail is that the applicant is perceived to represent a significant flight risk. The respondent called evidence from two witnesses in support of the objection.

The first witness was Sgt Martin O’Neill of the Garda Siochána Extradition Unit. He told the court that the European Arrest Warrant was executed in the Courts of Criminal Justice building in Dublin on the 9th of November 2010. The applicant was in fact already in custody having been previously arrested, and subsequently remanded in custody by the District Court, in respect of his alleged involvement in a domestic robbery and false imprisonment matter. He was due before the District Court on that date for the purpose of being further remanded, and while he was in the Criminal Courts building the opportunity was availed of to execute the European Arrest Warrant and to bring him immediately before the High Court which sits in the same building when dealing with extradition and rendition matters.

Sgt O’Neill confirmed to the court that on the 18th of September, 2010 the applicant had successfully obtained High Court bail in the robbery and false imprisonment matter referred to above on the terms indicated by Ms Horan; that the applicant had unsuccessfully tried to have those bail terms reduced, and that he had not in fact taken up his bail and that he was still on remand awaiting trial.

Sgt O’Neill was then asked if there were any other domestic matters outstanding against the applicant, and he informed the court that the applicant had been arrested on the 27th of August 2010 in the Bridewell area of Dublin in relation to yet another alleged robbery. He told the court no charges have yet been preferred against the applicant in respect of that matter as a file has been forwarded to the Director of Public Prosecutions from whom directions are awaited. However, Sgt O’Neill stated that his reason for referring to this matter was that it was his understanding that the applicant, upon being arrested on the 27th of August 2010, had given a false name, stating that he was Artur Kalinski rather than Artur Zieliñski which is his real name. This was later confirmed to the court by the arresting officer, Garda David Morris, who also gave evidence.

Sgt O’Neill concluded his evidence in chief by stating his reasons for regarding the applicant as representing a significant flight risk. First, he pointed to the fact that the applicant is a person who has been convicted of various offences in Poland. Secondly, the applicant had fled from Poland to Ireland. Thirdly, when arrested in respect of a domestic matter the applicant had given a false name.

Counsel for the applicant suggested to Sgt O’Neill that as the applicant had already surrendered his passport and identity card to An Garda Siochána it would not be possible for him to flee the country. The witness strongly disagreed with this, pointing out that in his experience many people awaiting extradition go missing while on bail.

Garda David Morris subsequently gave evidence and told the court that he arrested the applicant at Church St, Dublin 7 in relation to a robbery on the 27th of August, 2010. He stated that when he arrested the applicant he asked him his name and the applicant said that he was Artur Kalinski. The applicant spelled out the name K-A-L-I-N-S-K-I- for Garda Morris and the Garda wrote it in his notebook. He then proffered the notebook to the applicant for confirmation that he had recorded the name correctly and the applicant confirmed that he had. Garda Morris said that he then brought the applicant to the Bridewell Garda Station where he was detained. As is usual in such cases a custody record was opened by the member in charge in relation to the prisoner’s detention. Garda Morris told the court that the applicant also provided the name Artur Kalinski to the member in charge and this was duly recorded. He was given a notice of his rights and was asked to sign the custody record in acknowledgment of having received this notice. He did so, and signed as “Kalinski”. The custody record was exhibited for the court’s inspection and the court noted that it is clearly signed “Kalinski”. Finally, Garda Morris confirmed that on the first occasion when he interviewed the applicant while he was in custody the applicant also gave his name, and signed the interview notes, as “Kalinski.” However, in a second interview the applicant stated that his name was in fact “Zielnski”. He then spelled out “Z-I-E-L-N-S K I” for Garda Morris, and at the end of this interview he signed the notes as “Artur Zielnski”. In answer to the Court Garda Morris expressed the belief that the applicant’s real name is as recorded on the European Arrest Warrant. The spelling of the applicant’s name in the original European Arrest Warrant in Polish is recorded as Z-I-E-L-I-Ñ-S-K-I, which the Court infers, in the absence of any challenge in relation to identity, is how his name is correctly spelt. This is also the spelling used by Ms Horan in her affidavit when referring to her client’s mother and father.

Garda Morris also told the court that following the first interview he attempted to verify the applicant’s name by various means. In the course of checking local hostels he spoke to a man by the name of Rory Farrell who was working in the reception at a hostel on Blessington St. He asked Mr Farrell if he had anybody staying there by the name of Artur Kalinski. Mr Farrell produced the register and the Garda noted that a person of that name was recorded in it. When questioned further about it Mr Farrell told Garda Morris that he saw this person’s passport when he originally checked in and the name Kalinski was recorded from the passport.

Garda Morris was only briefly cross-examined and confirmed in answer to the applicant’s counsel that the applicant did eventually give his real name (although perhaps mis-spelled it) after some ten hours in detention. He further confirmed that he has never seen the applicant’s passport.

The Law
The Court accepts the submission made by Counsel for the applicant that it is appropriate for this Court to entertain a bail application on behalf of the applicant. In that regard Article 12 of the Framework Decision clearly envisages the granting of bail in appropriate cases. It provides:

“When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding.”
The Court further accepts that its jurisdiction to grant bail in both extradition and rendition matters is an inherent jurisdiction. The provisions of the Bail Act, 1997, and in particular s.2 thereof, have no application. This is for two reasons. First, s. 1 of the Bail Act, 1997 provides that a reference to “court” within that Act “means any court exercising criminal jurisdiction but does not include court martial”. The High Court is not exercising criminal jurisdiction when dealing with cases under the European Arrest Warrant Act 2003. Secondly, the Bail Act 1997 was specifically enacted to give effect to Art 40.4.7 of the Constitution, which was inserted by the 16th amendment to the Constitution. That amendment provided in turn for the refusal to 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. In the present case the Court is not dealing with a person charged with a serious offence. On the contrary, it is dealing with a convicted person facing rendition to serve a sentence already imposed.

Although bail is routinely granted by the High Court in this jurisdiction in rendition cases coming before it under the European Arrest Warrant Act 2003, and it does so more often than not in the absence of a State objection, there is as yet no decided case specifically addressing the criterion or criteria to be applied in bail applications in the second of two distinct species of such cases that may arise for consideration in that context. The first species relates to the cases of persons who are not convicted persons, who enjoy the presumption of innocence, and whose rendition is sought so that they may be put on trial for an alleged offence before a court in the requesting state. The second species concerns the cases of persons who have already been convicted before a court in the requesting state and who, on that account, no longer enjoy the presumption of innocence and whose rendition is sought for one or more of several possible purposes i.e., so that they may be sentenced if not already sentenced and then be made to serve their sentence; alternatively, if they have already been sentenced, so that they may be made to serve out the sentence, alternatively the balance of the sentence, that was imposed upon them.

While it is true to say that in many respects extradition proceedings under the Extradition Acts 1965 – 2001 are not to be equated to rendition proceedings under the European Arrest Warrant Act, 2003 they share certain similarities at least at a superficial level, and one similarity is that the two distinct species of case that are to be found in rendition proceedings are also to be found in extradition proceedings.

The Supreme Court has previously considered the issue as to what criterion, or criteria, ought to govern a court seized of an application for bail in one species of extradition proceedings arising under the Extradition Acts 1965 – 2001, namely in a case involving a person who has not been convicted and is required to face trial in the requesting state. It did so in the case of The People (Attorney General) v James Hildage Gilliland [1985] I.R. 643.

In the Gilliland case the prisoner was in custody in Mountjoy Prison awaiting extradition to the United States on fraud charges. The District Court had earlier ordered his extradition. Having then successfully obtained a conditional order of habeas corpus from the High Court, he sought bail pending the determination of the habeas corpus proceedings. The Attorney General opposed bail, but bail was granted notwithstanding that objection, the learned High Court judge (Barrington J) being of the view that the O’Callaghan principles applied, and not being satisfied that the prisoner, if granted bail, would abscond and not be available for his extradition. The Attorney General then appealed to the Supreme Court where he argued that the absconding test should be applied differently in an extradition case. In dismissing the appeal in that case, Henchy J., (with whom Finlay C.J., Griffin, Hederman and McCarthy JJ., unanimously agreed) said (at p. 645 et seq):

“Counsel for the Attorney General has sought to show that that particular test should be applied differently in an extradition case. He points out that in a case such as this the prisoner is being detained so that he will be surrendered to the requesting State, that is to say, so that this State will fulfil its obligations under the extradition treaty. The courts should therefore, it is urged, adopt a stricter approach than is appropriate when bail is applied for by a person in custody while awaiting a trial in this State. More specifically, it is submitted that when a prisoner is detained for extradition he should not be granted bail under what I may call the absconding test unless he discharges the onus of satisfying the court that there is “no real or reasonable possibility” that if granted bail he will not be available for extradition.
I am unable to accept this submission. I fail to see any reason why the absconding test should be applied differently in extradition cases. It is true that in such cases the prisoner is being held so that the State will comply with its obligations under the extradition treaty.”

He added:

“For my part I consider that there is no reason for applying the absconding test any differently in extradition cases as compared with ordinary criminal cases. In an extradition case the State’s duty is to take all reasonable steps to ensure that the prisoner will ultimately be available for extradition. In an ordinary criminal case the State’s duty is to ensure that the prisoner will be available for his trial. In either case the State’s duty must operate in a way that will not conflict with the fundamental right to personal liberty of a person who stands unconvicted of an offence under the law of the State. That right to personal liberty should not be lost save where the loss is necessary for the effectuation of the duty of the State as the guardian of the common good – in the extradition cases the duty normally being to fulfil treaty obligations and in ordinary criminal cases normally to enable the criminal process to advance to a proper trial. If in either case a court is satisfied that there is no real likelihood that the prisoner if granted bail would frustrate the State’s duty by absconding, I do not consider that bail should be refused on the absconding test. If it should appear in an extradition case that special circumstances exist which magnify the risk of absconding, such matters go to the onus of proof, but they do not vary the test. The test, in my view, in both types of cases is whether the party resisting the application for bail has satisfied the court that there is a likelihood that, if the prisoner is granted bail, he will defeat the ultimate purpose of the imprisonment by absconding. And it has to be borne in mind that in many cases some of the risks of release on bail may be obviated by attaching to the bail appropriately restrictive conditions.
I would particularly reject the submission that the onus in regard to this test should rest on the prisoner. Apart from the inherent unfairness in requiring proof of a negative, it is plain that in many cases it would be grossly unfair to expect a prisoner awaiting extradition in a jail in a foreign country to be in a position to adduce evidence to rebut the likelihood of his absconding. Where an application for bail is made by a prisoner, it is for the party resisting that application to put forward such evidence as will enable the court to hold that there is a probability that the prisoner will abscond if granted bail. The discretion of the court hearing the application must necessarily be wide.”

I am satisfied that, at least in cases where the prisoner has not been convicted, this case may be regarded as clear authority for the proposition that the fundamental criterion to be applied to bail applications in extradition matters is that set out in The People (Attorney General) v O’Callaghan [1966] I.R. 501, namely “is there a likelihood of the prisoner attempting to evade justice?”. Moreover in applying that criterion, the Court seized of the issue should have regard to those factors identified in O’Callaghan as of potential relevance, and consider them to the extent that they are in fact relevant in all the circumstances of the case, as well as any special circumstances tending to magnify the risk of the prisoner absconding.

Moreover, for my part, I see no reason why the same principles should not apply to bail applications in rendition proceedings under the European Arrest Warrant Act, 2003 in cases where the prisoner has not been convicted. However, Peart J appears to suggest the contrary in Minister for Justice, Equality and Law Reform v Ostrovskij [2005] IEHC 427.

In the course of his judgment in the Ostrovskij case Peart J states:

“The Court’s duty and obligation is to ensure as far as is reasonably possible that in accordance with the State’s obligations under the Framework Decision dated 13th June 2002 to which the 2003 Act, as amended by the 2005 Act gives effect, that in the event that the Court grants an application for the applicant’s surrender, the State will be in a position to so surrender the applicant on foot thereof. The Court would have to be satisfied as a matter of probability, having regard to all the circumstances of the case, that the terms and conditions of any bail which may be granted will be sufficient to ensure that the applicant will appear in Court for the application under s. 16 of the Act.”
I have not been called upon in the course of this case to determine if Ostrovskij ought not to be followed as having been wrongly decided in the light of the pre-existing decision in Gilliland, and it is not necessary for me to do so. In the circumstances I will simply comment that I find Ostrovskij to be a troubling decision. While Gilliland did not strictly speaking constitute a binding precedent in the Ostrovskij case because it concerned bail in the context of extradition proceedings under the Extradition Acts 1965 – 2001 whereas Ostrovskij concerned bail in the context of rendition proceedings under the European Arrest Warrant Act 2003, the two procedures do, as I have already stated, have much in common. Peart J was clearly influenced by the fact that the State has signed up to specific obligations in the Framework decision, to which effect is given by the 2003 Act, and considered that it is the court’s duty in turn to ensure in so far as is reasonably possible that those obligations are discharged, particularly in circumstances where the European Arrest Warrant system is based upon the principle of mutual trust and confidence. However, it is relevant in that regard that the obligations contained in Article 12 of the Framework Decision are subject “to the law of the executing member state” and so they cannot of themselves justify a deviation from well established domestic jurisprudence. In addition, it is important to acknowledge that the principle of mutual trust and confidence also applies, though perhaps less emphasis is placed upon it, in conventional extradition arrangements based upon bi-lateral treaties. In regard to that, the decision in Gilliland expressly acknowledges that in an extradition case the State is under a duty to take all reasonable steps to ensure that the prisoner will ultimately be available for extradition. It is equally clear, however, from the Gilliland case that Henchy J considered that inter state obligations ought not to trump the fundamental personal right that an unconvicted person has to be at liberty unless the deprivation of that right is absolutely unavoidable. This is clear from Henchy J’s endorsement of the O’Callaghan principles and his strong remarks rejecting the idea that the prisoner should bear an onus of proving that he was not likely to attempt to evade justice. The Ostrovskij case makes no reference whatever to the Gilliland case and it is unclear whether the Court’s attention was drawn to Gilliland in the course of legal argument.

Be all of that as it may, the present case involves a convicted person rather than a person who has not been convicted, and that begs the question whether Gilliland approach is to be regarded as apposite to such cases or whether a different approach, such as that in Ostrovskij, or some other, is required.

It seems to me that in the circumstances it is necessary to examine the rationale for the decision in the O’Callaghan case and to see if it is applicable to the circumstances of rendition proceedings under the European Arrest Warrant Act, 2003 in a case where the prisoner is already a convicted person.

The applicant in the O’Callaghan case was an untried prisoner detained in Mountjoy Prison awaiting trial in the Central Criminal Court. He applied to the High Court for bail. The Attorney General opposed the granting of bail on various grounds and Murnaghan J refused the bail application. In doing so he gave the following three reasons for refusing to grant the applicant bail: (i) the Superintendent in charge of the case (Superintendent Costello) had told him the applicant was an aggressive type, and he (the Superintendent) was of opinion that the applicant would interfere with witnesses if he were admitted to bail; (ii) the offences were committed while the applicant was on bail on remand in respect of earlier charges and there was a serious risk that the applicant would commit further offences if he were granted bail; (iii) the applicant’s background was not good, and he would have to look forward to a substantial sentence. The applicant then appealed to the Supreme Court where again the Attorney General opposed the granting of bail. Counsel for the Attorney General told the Supreme Court that he was not alleging that the applicant would abscond, and that the sum total of the Attorney General’s opposition was that the applicant might interfere with the witnesses for the prosecution. He also submitted that the Court should take into account that the offences in respect of which the applicant was seeking bail were alleged to have been committed while he was on bail on remand in respect of certain earlier charges

The Supreme Court was not satisfied on the evidence before it that the ground based upon possible interference with witnesses was made out. It then went on to consider the Attorney General’s second objection. In response to this Ó Dálaigh C.J. said (at pp 508/509):

“Counsel for the Attorney General, however, went on to support the view that the applicant, whom he concedes is likely to stand his trial, should nevertheless be refused bail because the offences in respect of which he was seeking bail were alleged to have been committed while he was on bail in respect of earlier charges. I understood him to submit that the applicant should be held as a preventive measure. This I take to mean that he should be detained in custody because, if granted bail, it is feared he may commit other offences.
The reasoning underlying this submission is, in my opinion, a denial of the whole basis of our system of law. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed nor attempted. I say “punish,” for deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon.

It is necessary to repeat what was said in the judgment of this Court in The People v. Crosbie and Others [1966] I.R. 426 . Leaving aside such matters as the likelihood of an accused interfering with witnesses or attempting to destroy evidence if granted bail, it must be borne in mind that the single question in all bail applications is:—Is the applicant likely to stand his trial? If yes, then he should be granted bail and set at liberty. The several tests indicated in Purcell’s Case [1926] I.R. 207 are not separate and additional tests. They are merely matters to which regard may be had in endeavouring to answer the single fundamental question. This Court has granted bail to applicants charged with non-capital murder when it was likely that they would stand their trial. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until tried and duly found guilty.”

It is abundantly clear from this quotation that a major consideration influencing Ó Dálaigh C.J’s approach was the individual’s fundamental right to personal liberty in circumstances where he is merely charged, but not convicted, of an offence and consequently enjoys a presumption of innocence. Of course, the right to personal liberty, which in the case of citizens is an enumerated constitutional right to be found in Article 40.4.1 of the Constitution, is not wholly uncircumscribed. A person may be deprived of their liberty in accordance with law. However Ó Dálaigh C.J. considered that in the case of an unconvicted person “deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial.”

The judgment of Walsh J in the same case expresses similar views. However, at the very outset (at pp 517/518) he notes that:

“While there is a distinction between applications for bail in the cases of prisoners who are on remand and those who have already been committed for trial and in the cases of persons who have already been convicted and in respect of which an appeal is pending, there are certain underlying principles common to all three forms of bail motion.”
This is a very important statement in this Court’s view because it acknowledges that, while all three forms of bail motion to which Walsh J refers share certain underlying principles, they are not identical and it is implicit that it is not necessarily the case that they must all be approached in the same way.

Walsh J was in full agreement with then Chief Justice that where a Court has to consider the question of bail in the case of an unconvicted person the fundamental matter to which regard must be had is the likelihood of the prisoner attempting to evade justice. While the greater part of Walsh J’s judgment is devoted to a critical analysis of a list of factors set out by Murnaghan J in the High Court as being potentially relevant to any judicial consideration of this issue, following which a number of those suggested factors were in fact rejected as being unsound or inappropriate, he clearly and unequivocally endorses the core principle which is that bail should be granted unless there is a likelihood that the prisoner will attempt to evade justice. In that regard Walsh J stated (at p.513 et seq):

“As recently as 1965 in The People v. Crosbie and Others [1966] I.R. 426 this Court reiterated that the fundamental test in deciding whether to allow bail or not is the probability of the applicant evading justice. It follows, therefore, that the object of fixing terms of bail is to make it reasonably assured that the applicant will surrender at his trial.”
The rationale unpinning this view can be found in two further passages from Walsh J’s judgment in the O’Callaghan case. He states (at p.513) that:

“In bail applications generally it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative. From the earliest times it was appreciated that detention in custody pending trial could be a cause of great hardship and it is as true now as it was in ancient times that it is desirable to release on bail as large a number of accused persons as possible who may safely be released pending trial. From time to time necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases “necessity” is the operative test. The presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at the trial. In the modern complex society in which we live the effect of imprisonment upon the private life of the accused and of his family may be disastrous in its severe economic consequences to him and his family dependent upon his earnings from day to day or even hour to hour. It must also be recognised that imprisonment before trial will usually have an adverse effect upon the prisoner’s prospects of acquittal because of the difficulty, if not the impossibility in many cases, of adequately investigating the case and preparing the defence.”
Then, later in the judgment he adds (at pp. 516/517):

“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.”
I am satisfied from my review of the judgments in O’Callaghan that the principles enunciated therein were not designed or intended to be of universal application and that they only cover applications for bail in cases where the prisoner has not yet been convicted of an offence. However, in so far as such cases are concerned the judgments in the O’Callaghan case make it clear that, in effect, there is a presumption that such a prisoner should be admitted to bail and that bail should only be refused where the State is in a position to rebut that presumption by evidence sufficient to establish a likelihood that the prisoner will attempt to evade justice. There are, of course, many means by which a prisoner might attempt to evade justice, but the main ones are absconding and interfering with witnesses and/or jurors. The rationale for this position is respect for the notion that liberty is a personal right which must be vindicated where possible, particularly in the case of an unconvicted person who is presumed to be innocent. Coupled to this is the notion that a person should not be punished in respect of any matter in respect of which he has not been convicted. It therefore follows that deprivation of liberty must be considered a punishment unless it is necessary to ensure that an accused person will stand his trial.

All of this begs the question whether the effective presumption in favour of the granting of bail has any application in cases where the applicant prisoner has been convicted and no longer enjoys the presumption of innocence, and in particular, having regard to the circumstances of the instant case, whether it should apply in an application for bail by a convicted person where the rendition of that person is being sought by another state in proceedings under European Arrest Warrant Act, 2003.

The position with respect to an application for bail in the case of a convicted person who has an appeal pending in the Court of Criminal Appeal was considered by the Supreme Court in The People (D.P.P.) v Corbally. The Supreme Court (Keane C.J., Denham, Murphy, Hardiman and Geoghegan JJ.), held that bail should be granted where, notwithstanding that the applicant came before the court as a convicted person, the interests of justice required it, either because of the apparent strength of the applicant’s grounds of appeal or the impending expiry of the sentence or some other special circumstance. Geoghegan J who delivered the sole judgment and with whom the other judges were in agreement, added that it must always be borne in mind that the applicant for bail in this situation was a convicted person and that the Court of Criminal Appeal should therefore exercise its discretion sparingly. Moreover, he referred with approval to the following statement of principle from an ex tempore judgment of the Court of Criminal Appeal (Barron J.) in The People (Director of Public Prosecutions) v. Connaughton (Unreported, Court of Criminal Appeal, 17th December, 1999) wherein it is stated:

“In this case the applicant ……comes before this court seeking bail pending his appeal. The first consideration for any court in such circumstances is to realise that the applicant has been convicted by a jury and therefore there must be strong reasons why bail should be granted.”
It is clear from the judgment in Corbally that on an application for bail in the case of a convicted person who has an appeal pending, the Court of Criminal Appeal ought not to approach the matter on the basis that there is an effective presumption in favour of the granting of bail, but rather should only grant bail where there are strong reasons for doing so. It should therefore consider whether the interests of justice required that it should exercise its discretion to grant bail in all the circumstances of the particular case.

This Court recognises that the circumstances of the applicant in Corbally were significantly different from the circumstances of the applicant in the present case, not least because of the existence of an on-going criminal process before the courts of this jurisdiction. There are obvious reasons why the Corbally principles may have little or no application to the case of a convicted person facing rendition on foot of a European Arrest Warrant. Clearly, the requested return of the prisoner may not be in the context of a pending appeal. Indeed the possibility of an appeal may not exist, e.g. where all possible appeals have already been exhausted; alternatively the prisoner is out of time. Further, the prisoner may not wish to appeal. Even if his return is sought in circumstances where an appeal is possible an Irish Judge could not possibly evaluate the respondent’s prospects of success on any such appeal. Accordingly, I consider that the principles enunciated in Corbally are not binding on this Court in terms of the issue that it is required to determine in this case. However, in this Court’s view Corbally does assist to this extent. It demonstrates that the effective presumption in favour of the granting of bail, that unquestionably obtains in the case of an unconvicted applicant whose faces a trial in this jurisdiction, and that also obtains in at least some cases where such a person faces a trial abroad, does not automatically apply in the case of other applicants. That it should be so is logical, because the rationale underpinning the effective presumption in favour of the granting of bail which is predicated upon the notions of liberty as a personal right, no punishment without conviction, and the presumption of innocence, will in most cases not exist in the case of a person who is already convicted. Such a person will usually have forfeited his right to liberty for the duration of a sentence imposed upon him, and pending the serving out of that sentence. Moreover, there is no question of him being punished without conviction, and he no longer has the benefit of any presumption of innocence.

So what then are the principles to be applied by the High Court in considering an application for bail in the context of proceedings under the European Arrest Warrant Act, 2003 by a convicted person whose rendition is sought by another E.U. member state for the purpose of having him serve a sentence, alternatively the balance of a sentence, imposed upon him by the courts of that member state?

First, this Court is satisfied that there can be no presumption in favour of the granting of bail.

Secondly, and as was made clear by Peart J in Minister for Justice, Equality and Law Reform v Ostrovskij, regard must be had to the fact that the Court’s duty and obligation is to ensure as far as is reasonably possible that in accordance with the State’s obligations under the Framework Decision dated 13th June 2002 to which the 2003 Act, as amended by the 2005 Act gives effect, that in the event that the Court grants an application for the applicant’s surrender, the State will be in a position to so surrender the applicant on foot thereof. In that regard, what Article 12 of the Framework Decision in fact says is that “the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State”, and that such a person “may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding”.

It seems to me that this requires the High Court to undertake, in the first instance, an assessment of the risk of the prisoner absconding to determine if there is a real and significant risk in that regard. This risk assessment should be a precursor to the taking of any decision on whether the requested person should remain in detention and, if not, concerning what conditions, if any, might attach to his release.

Thirdly, the Court must then decide whether the requested person should remain in detention and, if not, subject to what conditions he might be released. The Court has an absolute discretion as to whether or not to release a prisoner on bail, but such discretion must be exercised judicially, and it will inevitably be influenced by the risk assessment that has been carried out.

There will, of course, be a theoretical risk of absconding in every case but the existence of a mere theoretical risk alone and without more should not inhibit a Court from releasing a prisoner. More than that will be required to justify a decision not to release. The Court would be justified in deciding not to release the prisoner on bail if, having considered all relevant circumstances including evidence adduced by the applicant and any objector, it perceived the existence of a real and significant risk that the prisoner might abscond notwithstanding any restrictions or conditions that might be placed upon him. However, it is not necessary for the Court to be satisfied that as a matter of likelihood the prisoner will abscond before it would be justified in denying him bail.

The Court’s assessment of the risk of the applicant absconding
It seems to this Court that in the present case the following circumstances are relevant to the issue as to whether, in the applicant’s case, there exists a real and significant risk that he might abscond if admitted to bail. There are positive factors that must be weighed in the balance in favour of granting bail, but there are also negative factors in favour of a denial of bail that must be weighed against those positive factors.

 

Positive Factors
• Although he was not in a position to take it up, the applicant was granted bail by the High Court in relation to the domestic charges that he presently faces;
• The applicant has a family network in Ireland in that his father, mother, brother, his brother’s partner and their son all reside here, as well as his uncle and his five first cousins;

• He was in employment in Ireland until recently;

• He is of limited means;

• He claims to have no real ties to Poland any more;

• There is no evidence that he has previous convictions;

• He is presumed innocent in respect of the domestic charges he faces;

• He is prepared to surrender his passport and identity card;

• His father and/or mother are in a position to stand as an independent surety for him;

• He intends, if granted bail, to live with his parents in Waterford;

• He is prepared to abide with a signing on condition and will give the usual undertakings as to residence, that he will not apply for another passport/ID; that he will not seek to acquire or procure travel documents; that he will turn up in court and so forth;

• He has not taken warrants in the past.

 

Negative Factors
• The applicant is a convicted person;
• The risk of absconding is higher in the case of a convicted person, he has an incentive to abscond;

• The offences of which he has been convicted are moderately serious;

• A significant term of imprisonment, i.e., three years, has been imposed upon him in respect of one conviction, with somewhat lesser terms in respect of the other convictions;

• The applicant has already absconded from the requesting State to avoid serving the sentences imposed upon him;

• As a foreign national he is likely to have fewer ties to Ireland than an Irish national would have;

• There is a guarantee that a person surrendered on foot of an EAW will get credit for time served in Ireland – see Article 26 of the Framework Decision;

• The State is objecting to bail being granted on the grounds of risk that the applicant may abscond.

• The applicant, when arrested in respect of a domestic matter gave a false name

• There is slight and admittedly hearsay evidence to suggest that the applicant may have booked into the Blessington Street hostel under a false name, and using a false passport. However, the Court attachs relatively little weight to this evidence having regard to the hearsay nature of it, the absence of confirmation that the applicant was in fact resident at some point at the said hostel, and the fact that the Gardaí have not had sight of the passport in question.

• The court has not been appraised of any grounds of objection on foot of which it is likely, or even possible, that he would not be surrendered to the requesting state.

The Court’s decision
Having carefully considered all of the circumstances of the case, including the evidence adduced on the applicant’s behalf and on behalf of the objector, I have concluded that a real and significant risk exists that this particular applicant may abscond and be unavailable for surrender to the requesting state pursuant to s.16 of the European Arrest Warrant Act 2003, should this Court decide in due course that it is appropriate to surrender him. I have carefully considered whether a regime of restrictions/conditions could be put in place sufficient to allay the courts concerns in that regard and I have concluded that in the particular circumstances of this case it could not.
In all the circumstances of the case I must therefore refuse the application for bail.

 

Minister for Justice and Equality v Skiba

[2018] IESC 68
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 5 th day of December, 2018

Introduction
1. On the 1st December, 2016, the High Court ordered the surrender of Mr. Skiba (also referred to as “the appellant”) to the Republic of Poland pursuant to section 16(1) of the European Arrest Warrant Act 2003, as amended. That State had requested his extradition so that he could serve two sentences of imprisonment for offences committed there. His surrender was set for the 22nd December, 2016. It was to be effected in the usual manner, that is, by commercial airline.

2. The reader will not be surprised to learn that the planned surrender was not as straightforward as anticipated. On the 12th December, the appellant’s solicitors contacted the Garda Extradition Unit to inform it that Mr. Skiba had a fear of flying. This was the extent of the information conveyed. There followed a course of correspondence between the relevant Irish and Polish authorities, with the former seeking to make alternative travel arrangements for Mr. Skiba’s surrender. Ultimately, however, it was decided to proceed with the plan as originally conceived. Having arrived at the departure gate at Dublin Airport, the appellant refused to embark the aircraft. It being apparent that it would require more than minimal force to get him aboard, the Captain of the airplane refused to allow him to board.

3. The next day the Minister for Justice and Equality (“the Minister”) made an application in the High Court seeking to fix a new date for surrender. A prerequisite to the making of such order is that the original surrender must fail “because of circumstances beyond the control” of the States concerned. If such condition is not satisfied, the High Court must discharge the requested person. Humphreys J. decided not to follow the then recently delivered Opinion of Advocate General Bobek in Case C-640/15 Tomas Vilkas , which had stated that “circumstances beyond the control” must be understood as referring only to situations of force majeure as understood in EU law; thus such circumstances can be invoked only if, inter alia , they could not be foreseen by the States in question. Incidentally the preliminary reference in that case had been made by the Irish Court of Appeal. Humphreys J. preferred instead to apply the “normal” meaning of force majeure , which does not impart any element of foreseeability. The learned judge fixed the 5th January, 2017, as the new date for the surrender of Mr. Skiba.

4. The appellant appealed to the Court of Appeal. By judgment dated the 12th January, 2017, that Court found that the appellant’s resistance to boarding the plane was not foreseeable in the circumstances of the case, and accordingly that it was a circumstance “beyond the control” of the State. Thus the High Court judge’s assessment was correct, and the appeal was dismissed. Mr. Skiba was surrendered to Poland on the 14th January, 2017.

5. Eleven days later the Court of Justice of the European Union (“the CJEU”) delivered its judgment in C-640/15 Tomas Vilkas (“Vilkas”) and adopted an interpretation of “circumstances beyond the control” of the Member States which was in line with the Advocate General’s Opinion. The appellant was granted leave to seek a further appeal to this Court on a single net legal issue. The sole question posed asks whether the Court of Appeal was correct in its determination of the law applicable in this case in light of the subsequent decision of the Court of Justice in Vilkas . In essence the issue is whether Mr. Skiba’s solicitor’s phone call to the Irish authorities rendered it foreseeable that he would refuse to board the aircraft on the 22nd December; if so, what transpired on that date could not be said to have been “beyond the control” of the State and thus the High Court should have made an order discharging the appellant, rather than fixing a new date for surrender.

6. At the hearing of the appeal, another issue arose out of the discussion of the judgment of the CJEU in Vilkas . That Court held that the expiry of the time limits for surrender does not relieve the executing Member State of its obligation to carry on with the procedure for executing a European Arrest Warrant (“EAW”) and to surrender the requested person, and that the relevant authorities must agree on a new surrender date. The issue that arose on the appeal related to the meaning of the word “discharged” in section 16(5)(b) of the European Arrest Warrant Act 2003, as amended, and in particular how that subsection should be interpreted in light of the decision of the CJEU. To that end the Court invited further written submissions from the parties on that point.

7. Furthermore, again subsequent to the hearing of this appeal, the Court of Appeal delivered judgment in Minister for Justice and Equality v. Vilkas [2018] IECA 33, the case having been referred back to that Court following the judgment of the CJEU. Mr. Vilkas was subsequently granted leave to appeal that judgment to this Court. As the two cases concern the interpretation of the same provisions of domestic and EU legislation, albeit different subsections thereof, it was decided that the parties to this appeal should be permitted to make oral submissions following the hearing in the Vilkas appeal. Unsurprisingly, as both cases in essence arise out of the judgment of the CJEU in Vilkas, there is substantial overlap in many respects, although the net legal issue in each case is distinct. Accordingly, regard should also be had to my judgment in Vilkas, delivered on the same date as the within judgment.

Legal Framework
Council Framework Decision on the European Arrest Warrant

8. Before setting out the background and procedural history of the case, it may be helpful at this juncture to cite the applicable law, which has both an EU and a domestic dimension to it. At EU level, the relevant enactment is Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA; Official Journal L 190, 18/07/2002), as amended by Council Framework Decision 2009/299/JHA (“the Framework Decision”). This is, of course, the framework decision which established the EAW system. Article 23 thereof provides for the time limits for the surrender of the person requested. It states that:

“Article 23
Time limits for surrender of the person

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 10 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 in 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.

4. 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.

5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.” (Emphasis added)

This Article is referred to in this judgment as “Article 23” or “Article 23 F.D.”.
The European Arrest Warrant Act 2003

9. The Framework Decision on the European Arrest Warrant is given effect in domestic law by the European Arrest Warrant Act 2003, as amended (“the 2003 Act”). The relevant provisions for present purposes are contained in section 16 thereof; they read as follows:

“16. Committal of person named in European arrest warrant
(1) Where a person does not consent to his or her surrender to the issuing state the High Court may, upon such date as is fixed under s.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 true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,

(c) the European Arrest Warrant states, where appropriate, the matters required by section 45 (inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012),

(d) the High Court is not required, under sections 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.

(2) …
(2A) …

(3) An order under subsection (1) or (2) shall, subject to section 18, 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, on the application of the Central Authority in the State and with the consent of the person to whom the order applies, directs.

(3A) Subject to subsections (5) and (6), a person to whom an order for the time being in force under subsection (1) or (2) applies shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect in accordance with subsection (3).

(4) Where the High Court makes an order under subsection (1) or (2), it shall, unless it orders postponement of surrender under section 18—

(a) …
(b) order that that person be detained in a prison … for a period not exceeding 25 days pending the carrying out of the terms of the order, and

(c) direct that the person be again 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.”

10. It is apparent from the aforegoing provisions that the default position is that a surrender order made under section 16(1) comes into effect fifteen days after the date on which it is made (per section 16(3)) and that surrender must be effected within a further ten days from that date (per section 16(3A). There is, however, a provision allowing for a new surrender date to be fixed outside the default ten-day period, and it is this provision which is central to this appeal. Subsection 16(5) of the 2003 Act provides that:

“(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.” (Emphasis added)
11. Regard should also be had to subsection 16(5A) of the 2003 Act, which states that:

“(5A) A person to whom an order for the time being in force under subsection (5)(a) applies—
(a) shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect, or
(b) if surrender under paragraph (a) has not been effected, shall be discharged.”

The Court of Appeal held, in its preliminary reference to the CJEU in Vilkas, that sections 16(3) to 16(5A), inclusive, were intended to faithfully transpose Article 23 of the Framework Decision. Neither party to this appeal appears to dispute that proposition.

Background and Procedural History
The Surrender Order

12. Mr. Skiba is the subject of a European Arrest Warrant issued by the Republic of Poland and dated the 21st March, 2016. The EAW in question is a conviction warrant; the appellant’s surrender is sought so that he may serve two sentences of imprisonment in that country following his conviction for certain offences before the Polish courts; one such sentence is of one year and six months’ duration, and the other is a sentence of nine months and twenty-eight days, the balance of a ten-month sentence.

13. In September, 2016 Mr. Skiba was arrested on foot of the EAW in question. He unsuccessfully contested his surrender at a hearing in the High Court for the purposes of section 16 of the 2003 Act. The hearing was held before Donnelly J. On the 1st December, 2016, the learned judge ordered the appellant’s surrender pursuant to section 16(1) of the Act. She also ordered that he be remanded in custody in Cloverhill Prison for a period of not less than fifteen days from that date, and a further period not exceeding ten days until the date of his surrender. Accordingly, the surrender was to be effected not later than the 25th December, 2016.

14. The High Court also made two ancillary orders pursuant to section 16(4)(c) of the 2003 Act to the effect that “(a) if the Respondent is not surrendered before the expiration of the time for surrender under Section 16(3A) of the said Act he is to be brought before the High Court again as soon as practicable after that expiration” and “(b) 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 the Respondent will not be surrendered on the expiration referred to at (a) before that expiration he is to be brought before the High Court again before that expiration.”

15. The Irish Central Authority, for the purposes of the 2003 Act (“the Minister”), made arrangements with the relevant Polish authorities for the surrender of the appellant to be effected on the 22nd December, 2016, which was within the permissible ten-day window for surrender under the Act. The envisaged mode of surrender was that Mr. Skiba would be placed on a commercial airline flight from Ireland to a destination in Poland; this is the usual method used for such matters. He was to be accompanied on this flight by members of the Polish police, who were to travel to Ireland for the purpose of chaperoning him back to Poland. It appears that to this end airline tickets were purchased on the 9th December, 2016. These arrangements were made in a timely and appropriate fashion and in accordance with the standard surrender procedures.

Correspondence between the Irish Central Authority and the Polish authorities

16. On Friday the 9th December, 2016, the appellant’s solicitor phoned the Garda Extradition Unit to notify it that Mr. Skiba has a fear of flying. The solicitor was advised to ring again on Monday in order to speak to the Sergeant who was in charge of the surrender procedure. Thus on the 12th December the solicitor rang back and advised Sergeant James Kirwan of the Extradition Unit of the issue.

17. Following the receipt of this information, a course of correspondence was entered into between the Irish Central Authority and the relevant Polish authorities. This correspondence is relied upon by Mr. Skiba as indicating the foreseeability of his refusal to board the airplane at Dublin airport; it is thus necessary to set out the material passages of these letters, emails and faxes. The first such letter from the Central Authority to the issuing judicial authority, the Regional Court in Kielce, was dated the 12th December, 2016. It was marked “Urgent” and titled “Re:- European Arrest Warrant in respect of Piotr Pawel Skiba”. That letter provided as follows:

“I refer to previous correspondence.
Solicitors acting for the respondent have advised that their client has expressed a fear of flying.

Accordingly alternative arrangements for his surrender, not involving commercial aircraft, will be required.

The respondent has expressed a fear of flying and there is a risk that he will resist boarding a commercial aircraft resulting in the pilot refusing to allow him on board, which has happened in the past.

In the circumstances, please make alternative travel arrangements to collect the respondent between the 16th and 25th of December 2016 (dates inclusive). If due to circumstances beyond the control of the issuing state this is not possible then a date for the purpose of extending the time for his surrender should be proposed by the issuing judicial authority (Sad Okregowy w Kielce) for agreement in accordance with Art 23.3 of the Framework Decision and the respondent will have to be collected within ten days of that date.

I would be obliged to receive a response to this query as a matter of urgency.” (Emphasis in original)

18. On the 13th December, the Chief State Solicitor wrote to the appellant’s solicitors informing them that the Central Authority had been notified of the appellant’s fear of flying and that “the issuing state is being informed so that alternative arrangements may be made for his surrender not involving commercial aircraft.” No replying documentation has been disclosed to the Court.

19. The response of the Polish authorities to the letter of the 12th December came by way of email from the Europol National Crime Bureau Unit at Warsaw to its Dublin counterpart on the 16th of that month. That agency, together with another operating under the acronym SIRENE Poland, performs extradition functions broadly analogous to those of An Garda Síochana in this country, including the running of a “convoy unit” for transporting extraditees. The Polish authority acknowledged that it had been informed that the appellant has a fear of flying. It inquired whether there was any appropriate medical documentation confirming Mr. Skiba’s fear/phobia, or whether the only available information was that provided by his solicitors. A response was requested by noon on the 19th, in light of the short time before surrender. That email was followed up by a fax from the Kielce Regional Court on the 19th December, requesting “information whether there is some relevant medical documentation concerning the drugs (phobia related) for Piotr Pawel Skiba’s … travelling by air.” The same deadline for response was given.

20. The Irish Central Authority responded by letter dated the 19th December, 2016, again addressed to the issuing judicial authority and marked “Urgent”. That letter stated that:

“I refer to your correspondence dated 19/12/2016.
This office is not in possession of any medical documentation concerning the respondent’s expressed phobia .

As previously informed, Solicitors acting for Mr. Skiba have advised that their client has expressed a fear of flying.

In view of the respondent’s expressed fear of flying, there is a risk that he may resist to board a commercial aircraft, resulting in the pilot refusing to allow him on board. Accordingly, arrangements for his surrender, not involving commercial aircraft , appear to be warranted.

There is a concern now that he has expressed that he has a fear of flying, if he were to refuse to board a commercial flight it might then be difficult to persuade the High Court to extend the time for surrender on the basis of circumstances beyond the control of the member states.

That is because it could be argued on his behalf that it was reasonable to foresee that he would not voluntarily board an aircraft and therefore the reason he was not surrendered was not as a result of something beyond the control of the states in question as alternative arrangements should have been in put in place.

As matters stand, the respondent must be surrendered to the Polish police on or before 25/12/2016. If due to difficulty in arranging for an alternative means of surrender excluding commercial aircraft this is not possible, then a date for the purpose of extending the time for his surrender should be proposed by the issuing judicial authority (Sad Okregowy w Kielce) for agreement by the High Court in accordance with Art 23.3 of the Framework Decision. The respondent will have to be collected within ten days of that date.” (Emphasis in original)

21. With the surrender deadline now looming, the Irish Central Authority again wrote to the Regional Court in Kielce on the 21st December. By now the letter was marked “Extremely Urgent”. It read as follows:

“As previously advised the respondent must be surrendered to the Polish authorities on or before 25/12/2016.
Please note that if there are no arrangements in place to effect the hand-over of Mr. Skiba before the 25/12/2016 and there has been no proposal for an extension of time for reasons beyond the control of the Member States, which possibly could be due to having to make arrangements for surrender not involving commercial aircraft, the respondent will be brought back before the High Court on Friday, 23/12/2016 in accordance with section 16(4)(c) of the EAW Act 2003 (as amended).

In circumstances where there has been no order for an extension of time the respondent will be discharged from proceedings.”

22. The response from NCB Warsaw was received later that evening. The short message provided that “[w]e confirm that the subject will be collected by our officers tomorrow [ i.e. 22nd December] at 10:00 hrs at Dublin airport as originally planned.”

The unsuccessful attempt at surrender

23. All did not go according to plan. On the morning of the 22nd December the appellant was brought from Cloverhill Prison by members of the Garda Síochana extradition unit to Dublin Airport, where the Gardaí met two Polish police officers who had flown to Ireland the previous day for the purposes of escorting the appellant on his flight. The appellant and the Polish officers checked in for their flight. The appellant, the Gardaí and their Polish counterparts then went to the assigned departure gate. It was intended that from there the group would cross the tarmac to the aircraft together, following which the Gardaí would stay behind while the appellant and the Polish officers boarded the plane. At this point, Mr. Skiba indicated that he was not prepared to proceed beyond the departure gate. When it became clear that he would not board the plane other than through the use of more than minimal force by the police officers present, the captain of the plane decided that he did not want Mr. Skiba on his flight and refused him permission to board. The surrender attempt thus had to be abandoned, and the appellant was returned to Cloverhill Prison overnight.

The Judgment of the High Court fixing a new surrender date

24. It now being apparent that the appellant would not be surrendered before the 25th December, the Chief State Solicitor wrote to the appellant’s solicitors later on the 22nd December indicating the Minister’s intention to make an application under 16(5) of the 2003 Act the next day. The Central Authority also wrote to the Polish authorities explaining what had happened at the airport and seeking a proposal as to a new surrender date; the response by fax the following day requested that the new date be set for the 5th January, 2017. Thus on the 23rd December the Minister brought Mr. Skiba back before the High Court, as envisaged by the ancillary order made by Donnelly J. pursuant to section 16(4)(c)(ii) of the Act.

25. The hearing was held before Humphreys J. From the Minister’s perspective the purpose of this hearing was to fix a new date for the appellant’s surrender pursuant to section 16(5)(a)(i). A consequential order detaining the appellant pending the rearranged surrender was also sought under section 16(5)(a)(ii). This application was opposed by counsel for Mr. Skiba, who contended that the preconditions to the making of the said orders under section 16(5)(a) were not satisfied. Accordingly, he submitted that his client should be discharged pursuant to section 16(5)(b).

26. Evidence as to what had transpired at the airport the previous day was given by Sergeant Kirwan. As explained by the witness:

“[W]e … went as far as the gate, Judge, we were then at the point where we had to leave the terminal building and cross the tarmac to the plane and at that point, Judge, he refused to go and it became apparent that he wasn’t going to go except by using more than minimal force, Judge, and the Captain of the plane … decided at that point that he didn’t want him on his plane.”
27. Sergeant Kirwan gave evidence that the flight tickets had been purchased on the 9th December, prior to the appellant’s fear of flying being brought to his attention on the 12th. He accepted on cross examination that the solicitor may have phoned the Garda Station the previous Friday, but stated that he was not aware whether this had in fact happened. Having received this phone call, which he felt should have been directed to the Chief State Solicitor’s Office rather than the Garda Extradition Unit, he advised the solicitor to notify the CSSO but also took it upon himself to inform the relevant authorities of the appellant’s fear. As regards the first notification of this fear coming after the appellant had been in custody for twelve days, Sergeant Kirwan stated that:

“I would have been sceptical of this, Judge. The fact that we had been through the whole court procedure … and had a full hearing and when his extradition was ordered that no indication was given to the Court of this expressed fear, Judge.”
28. The Sergeant confirmed that no medical evidence of this fear had been forthcoming. The following exchange is also of some relevance:

“Q. … I know you deal with a lot of cases of surrender and have occasions transpired in the past, Sergeant, where people have been nervous of flying or matters of that nature and how have they been dealt with?
A. Yes, Judge, many occasions. I’ve dealt with hundreds of surrenders by air, Judge, 99.9% of them going according to plan and I have met many people, when I’ve met them at the airport they have said they have never been on a plane before and they would have been quite anxious and it is normal enough but they didn’t have any problem boarding them on the plane.”

29. Sergeant Kirwan confirmed that a new surrender date had been set for the 5th January, 2017, and that this surrender was to be effected over land, rather than by airplane. This, according to the Sergeant, is a far more complicated and time-consuming procedure. Under cross-examination, he could not comment on how Mr. Skiba had first come to Ireland, or the suggestion that the appellant has never flown before. He was further cross-examined in relation to the correspondence between the authorities in the two States, and also in relation to Mr. Skiba’s English language proficiency and his demeanour on the morning that he was to be surrendered. Nothing of continuing relevance emerged from this cross-examination.

30. It is at this point that the Vilkas case at the Court of Justice of the European Union becomes relevant. That case is described in some detail at paras. 39-48, infra. Although the CJEU had not yet pronounced its judgment in Vilkas at the time of section 16(5) hearing, Advocate General Bobek had delivered his Opinion on the 27th October, 2016. Counsel for the appellant relied on that Opinion before the High Court and the Court of Appeal, contending that it contained guidance of general application to all cases in which Article 23 of the Framework Decision (and therefore section 16 of the 2003 Act) is engaged. There, the Advocate General had stated that the phrase “circumstances beyond the control of the Member States” should be understood as meaning force majeure as that concept is defined in EU law, which refers to “unusual and unforeseeable circumstances that are beyond the control of the party by whom it is pleaded and the consequences of which could not have been avoided even if due care had been exercised” (para. 60). A little later in the Opinion it is said that there are two essential elements in the notion of ” force majeure “: the first is an objective one and relates to the circumstances, being abnormal, unforeseeable and extraneous to the person so asserting, and the second, a subjective one, meaning that due care must be taken to guard against such an abnormal event occurring (para. 65).

31. Of particular relevance however was paragraph 68 of the Opinion, where the Advocate General had stated as follows:

“68. Concerning the first element of force majeure , the behaviour of the requested person can be considered as a ‘circumstance beyond the control …’ in the sense of Article 23(3) if it cannot be foreseen and is external to the control of the Member State alleging them. Aggressive behaviour at the time of surrender may therefore be considered as an unforeseen and extraneous event only if the factual elements at the disposal of the authorities in no way hinted at such a scenario occurring. When assessing the likelihood of such a scenario, due consideration must be given by the national authorities to the specific factual background of each individual case, including considerations such as: the crimes for which the person is requested or has been convicted; behaviour during detention; previous records; and any other elements related to his background that may emerge from the national file.”
32. This paragraph formed the crux of the appellant’s argument. He submitted that his solicitor’s phone call to Sergeant Kirwan had put the State on notice of a potential problem. Thus it could not be said that his refusal to board the aircraft was unforeseen and therefore it could not amount to a “circumstance beyond the control” of the States concerned, had they exercised due diligence in relation to the matter. This was borne out by the course of correspondence between the Central Authority and the Polish authorities, admitted in evidence by agreement and said by the appellant to be an express acknowledgment by the Irish Central Authority that it had foreseen the risk that he would resist boarding the plane. This, it must be said, remains the central tenet of Mr. Skiba’s submissions to this Court, albeit now bolstered by reliance on the judgment of the Court of Justice rather than the Opinion of the Advocate General, which obviously could not be binding.

33. This submission did not persuade Humphreys J. He took the view that what had happened was “beyond the control” of the State and he was therefore prepared to fix a new surrender date in line with that agreed in advance with the issuing judicial authority. The learned judge stated in his ex tempore judgment that:

“Well, I’m not going to apply paragraph 68 of the Advocate General’s opinion because in my view that is a departure from the normal understanding of force majeure. So I’m going to give it its normal meaning . The respondent refused to get on the plane; that’s a circumstance outside the control of the Minister. So, because I’m satisfied that the failure to effect the surrender was because of circumstances beyond the control of the state, I’ll fix the date of the 5th January [2017] for the surrender of the Respondent and order him to be detained [in Mountjoy pending the surrender].” (Emphasis added).
Thus on the learned judge’s reading of section 16(5)(a) Mr. Skiba’s refusal to board the aircraft was beyond the control of the State, and this was sufficient to fix the new date; the issue of foreseeability did not arise. The order of the Court clarified that Mr. Skiba was to be detained in Mountjoy for a period not exceeding ten days after the 5th January, 2017.

The Judgment of the Court of Appeal

34. Mr. Skiba appealed the said judgment and order of Humphreys J. to the Court of Appeal. He said that the learned judge had erred in not following the Advocate General’s Opinion, and that this had led him into the further error of finding that the surrender could not be effected within the default statutory time period due to “circumstances beyond the control” of the States concerned, when the evidence was in fact to the contrary. He submitted that his phobia had been notified to the State but had been ignored. Alternative arrangements could and should have been made and thus what happened was not outside the control of the relevant authorities. There was ample time to make alternative arrangements, but nonetheless a decision was made to proceed with the original plan. Thus the problem that arose was entirely avoidable.

35. The Minister responded that the Irish Central Authority’s perception of a risk that Mr. Skiba might not board the plane was not material; it is the High Court, not the Central Authority, which must assess whether the circumstances were “beyond the control” of the State. Although the Minister accepted that this assessment must be approached with due diligence, he argued that no “heightened” due diligence as envisaged at paras. 80 and 84 of Advocate General Bobek’s Opinion was required (see, para. 62 infra ), as, unlike that case, this was not a second or subsequent application for a new surrender date. The only evidence before the High Court was Sergeant Kirwan’s testimony. He had not been informed of the extent or degree of the appellant’s fear, nor told that Mr. Skiba would be unable to fly or might refuse to board the aircraft, nor given any indication that his fear had ever previously prevented him from flying. No supporting medical evidence had been adduced, the authorities were not told that the appellant had a phobia in a pathological sense, and the Sergeant had expressed his scepticism of the appellant’s fear. There was also his evidence that many people express a fear of flying but nonetheless board the airplane: cases where the phobia prevents the person from embarking are rare. Knowledge of the extent and history of the appellant’s fear were peculiarly within his own knowledge and the authorities were not given sufficient details thereof; all that the authorities had was his bald statement of having a fear of flying, and Sergeant Kirwan was not challenged on the lack of detail conveyed to him. Moreover the appellant himself had not given evidence. The High Court judge had been entitled to take all of this into account. Thus the Minister submitted that the learned judge had exercised the requisite degree of due diligence and his decision was amply justified on the evidence before him.

36. The judgment of the Court was delivered by Edwards J. (Ryan P. and Mahon J. concurring) on the 12th January, 2017 ([2017] IECA 9). The Court agreed with the Minister’s arguments. Edwards J. was of the view that there was no reason to believe that the High Court judge had not exercised the requisite due diligence in assessing the claim of force majeure or “circumstances beyond the control” of the relevant authorities. Moreover, there were no grounds for the learned judge to apply an approach of heightened due diligence. Edwards J. did not accept the proposition that once Sergeant Kirwan had been informed that the appellant had a fear of flying it was reasonably foreseeable that he would resist boarding the airplane or create such disruption as to cause the pilot to refuse to allow him aboard. The learned judge reasoned as follows:

“A matter such as fear of flying is very easily asserted, but before action on foot of it could reasonably be justified there would have to be some assessment of the level of the theoretical risk involved. Very many people have a fear of flying and would prefer to travel by sea or overland despite the additional time involved in doing so. However, in most cases the fear does not operate to such a degree as to prevent them from taking flights. By the same token, a small percentage of people do have a fear so profound as to represent a phobia that operates to inhibit them from taking flights. In assessing the possible implications of an asserted ‘fear of flying’ an assessor would naturally look to see if the assertion was particularised and supported in any way, e.g., by the provision of details by the person himself concerning how he had been affected historically, by third party accounts of how he had been affected, and optimally by relevant expert or professional testimony if any such material was available. However, absent any such support, a bald assertion could, it seems to me, do no more than flag a remote and theoretical possibility, rather than a reasonably foreseeable risk to be actively responded to.” (para. 33)
37. In respect of the Irish Central Authority’s reaction to the appellant’s solicitor’s phone call and the subsequent correspondence between the relevant Irish and Polish authorities, Edwards J. took the view that the letters reflected at paras. 17, 20 and 21, supra , had to be considered together. So read, they did not indicate an acceptance by the Irish Central Authority that it was reasonable to foresee that the appellant would not voluntarily board an aircraft. Rather, they indicated acceptance “that such a proposition ‘ could be argued on his behalf’ ” (emphasis in original, para. 34). Edwards J. observed that this position may have been adopted out of a concern to be seen to have ostensibly taken on board certain of the Advocate General’s remarks not long after his Opinion had been promulgated. Indeed Edwards J. went on to say that the Central Authority “could be said to have over-reacted to the information received”, given the absence of details or a description of the prior history in respect of Mr. Skiba’s claimed fear.

38. Finally, Edwards J. agreed with another of the Minister’s submissions and remarked obiter that “how the Central Authority may have viewed the risk is not determinative of anything.” The person required to assess whether the circumstances advanced constituted force majeure or “circumstances beyond the control” of the relevant authorities was not the Central Authority, but the High Court. The Court of Appeal concluded that the High Court judge’s assessment was conducted with due diligence and was consistent with the relevant evidence actually before him. Accordingly, it dismissed the appeal.

39. The appellant was surrendered to Poland on the 14th January, 2017.

The Judgment of the Court of Justice of the European Union in Case C 640/15 Vilkas

40. The Court of Justice delivered its judgment in Case C-640/15 Tomas Vilkas on the 25th January, 2017, just under two weeks after the Court of Appeal had delivered its judgment in this case. As noted above, the Vilkas case came before the CJEU by way of an Article 267 preliminary reference from the Irish Court of Appeal in Minister for Justice and Equality v. Tomas Vilkas (the neutral citation given to this case, when the Court of Appeal rendered judgment following the judgment of the CJEU, was [2018[ IECA 33).

41. Mr. Vilkas was the subject of two European Arrest Warrants issued by a Lithuanian court. He resisted embarking the flight on the date set for his surrender, causing the pilot to refuse to have him on board the flight. A fresh surrender date was set by the High Court. Again, however, this surrender attempt failed as a result of Mr. Vilkas’s behaviour. The Minister applied to the High Court for a third attempt to surrender Mr. Vilkas to the Lithuanian authorities, this time by sea and over land, but the Court held that it lacked jurisdiction to make such an order on a second occasion and thus ordered Mr. Vilkas’s release. The Minister appealed to the Court of Appeal, which entered a stay in order to refer two questions to the CJEU for a preliminary ruling.

42. By the first of these questions the Court of Appeal asked whether Article 23 of the Framework Decision contemplates and/or allows for the agreement of a new surrender date on more than one occasion. Evidently this same point did not arise in Mr. Skiba’s case. In short, the CJEU held that Article 23(3) permits the making of a new surrender date on more than one occasion, provided that the requisite circumstances exist on each such occasion. This aspect of the judgment is of continued relevance only insofar as it could be said to have informed the Court’s subsequent treatment of the foreseeability of Mr. Vilkas’s refusal to board the aircraft in the circumstances of the case. Following receipt of this opinion, the Irish Court of Appeal subsequently held that sections 16(3) to 16(5A) of the 2003 Act must be read to conform with the interpretation of Article 23(3) adopted by the CJEU, and thus that section 16 allows for the fixing of a new surrender date on multiple occasions. Mr Vilkas was granted leave to appeal that decision to this Court; its judgment on that appeal is delivered today alongside the judgment in this case.

43. More relevant for present purposes was the second question referred by the Court of Appeal. The wording is not entirely germane; what is important is that it required the Court of Justice to consider the meaning of the phrase “circumstances beyond the control of any of the Member States” as contained in the first sentence of Article 23(3) of the Framework Decision. Given that the sole issue before this Court arises directly out of the CJEU’s treatment of this issue, it is necessary to address the pertinent sections of its judgment in some detail.

44. The Court first noted a divergence between the various language versions of that provision, with some languages, including English, using the phrase just quoted but others referring instead to the surrender not being possible by reason of a case of ” force majeure in one the Member States concerned.” Noting the need for a uniform construction of the provision, the Court resorted to an interpretation based on the intention of the legislature and the objective being pursued. By reference to the origins of Article 23(3) as found in Article 11(3) of the earlier Convention on Simplified Extradition Procedure, as well as the various language versions of the explanatory reports to that Convention and the Commission’s proposal which led to the adoption of the Framework Decision, the Court took the view that “the contracting parties to the Convention ultimately had the intention of referring to the concept of force majeure as usually understood, a fact which is confirmed by the list of examples that are set out in the explanatory report.” Thus the Court concluded that:

“52 These various factors contribute to demonstrating that the use in various language versions of [the concept of circumstances beyond the control of the Member States concerned] does not indicate that the EU legislature intended to make the rule set out in the first sentence of Article 23(3) of the Framework Decision applicable to situations other than those where the surrender of the requested person proves impossible by reason of a case of force majeure in one or other of the Member States.”
45. The Court then in effect confirmed the view expressed in Advocate General Bobek’s Opinion, disregarded by Humphreys J., that the foreseeability of the event is relevant for the purposes of Article 23(3). It explained that it is apparent from settled case law, across various sphere of EU law, that “the concept of force majeure must be understood as referring to abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care” (para. 53). As can be seen, four distinct aspects of force majeure are immediately apparent from this definition. These are, that the circumstances relied on must have been:

i. Abnormal;
ii. Unforeseeable; and

iii. Extraneous to the party by whom they are pleaded;

And, furthermore:
iv. It must not have been possible to avoid the consequences of the force majeure in spite of the exercise of all due care.
46. The Court next recalled that the concept of force majeure does not have the same scope in all spheres of EU law, and therefore its meaning must be determined by reference to the legal context in which it is to operate (para. 54). Thus it was necessary to take account of the general scheme and purpose of the Framework Decision in order to interpret and apply the constituent elements of force majeure , as derived from the Court’s case-law, in the context of Article 23(3) (para. 55). This view of the Court seems indistinguishable from that of the Attorney General.

47. Approached in this manner, the Court had the following to say:

– As Article 23(3) lays down an exception to the general rule contained in Article 23(2), the concept of force majeure in Article 23(3) must be interpreted strictly (para. 56);
– It is clear from the wording of Article 23(3) that force majeure can justify extending the period for surrender only where it prevents that surrender – merely rendering surrender more difficult is not sufficient (para. 57);

– The fact that resistance is put up by a requested person may properly be considered as an abnormal circumstance outside the control of the authorities concerned (para. 58);

– However, the fact that certain requested persons put up resistance cannot, in principle, be classified as an unforeseeable circumstance (para. 59);

– Where the requested person has already resisted a first surrender attempt, the fact that he resists a second surrender attempt cannot normally be regarded as unforeseeable. The same is true of the refusal of a commercial airplane pilot to allow a violent passenger to board (para. 60);

– In respect of the requirement that the consequences could not have been avoided in spite of the exercise of all due care , the authorities concerned will have means enabling them more often than not to overcome resistance put up by the requested person. The Court gave two examples:

o It cannot be ruled out that authorities may have recourse to certain coercive measures , as provided for in national law and in compliance with the requested person’s fundamental rights, in order to cope with resistance (para. 62);
o It is also possible to envisage recourse to means of transport whose use cannot be effectively prevented by the requested person’s resistance (para. 63).

48. In spite of the foregoing, however, the Court did not rule out the possibility that, on account of exceptional circumstances, it might be objectively apparent that the requested person’s resistance to surrender could not be foreseen by the authorities concerned and that the consequences of said resistance could not be avoided through the exercise of all due care by the authorities. In such circumstances, the rule set out in the first sentence of Article 23(3) would apply (para. 64).

49. The Court then went on to make some further observations on the consequences of the expiry of the time limits prescribed in Article 23 of the Framework Directive and how the executing Member State must still process the surrender request at that point (paras. 66-73). The impact of these remarks was touched upon but not fully debated at the hearing of this appeal: accordingly, the parties were then invited to make further written submissions on the subject (para. 6 supra ). This issue is addressed separately later in this judgment; for present purposes the focus will remain on the point concerning the meaning and application in this case of the phrase “circumstances beyond the control” of the Member States.

Issue

50. The appellant sought leave to appeal the judgment and order of the Court of Appeal. By determination dated the 23rd June, 2017 ([2017] IESC DET. 69), this Court granted Mr. Skiba leave on a single issue, namely, whether the Court of Appeal was correct in its determination of the law applicable in this case in light of the subsequent decision of the CJEU in Case C 640/15 Vilkas, delivered on the 25th January, 2017.

Submissions
Submissions of the Appellant

51. The appellant submits that it is clear that the Irish and Polish authorities were on notice that he had a fear of flying such that he might not board his intended flight on 22nd December, 2016. The purpose of his solicitor’s phone call on the 9th December was to convey that fact. It must have been implied that there was a risk he would not board the airplane, otherwise there would have been no point in making the call. Having voluntarily informed the authorities of his problem, they had almost two weeks’ notice of the issue, which was ample time to make alternative arrangements for his surrender. He says that the objective of giving the authorities notice was not to evade his return to Poland; had that been his intention, he would not have made the communication which he did.

52. Mr. Skiba submits that he does not understand why Sergeant Kirwan was sceptical of his fear, nor does he understand what would have been added, by him obtaining medical evidence. Indeed he questions what that evidence may have been, beyond a general practitioner confirming that the appellant had told him or her that he has a fear of flying. Immediately after he refused to board the aircraft, arrangements were made to transport him to Poland over land. This appears to have been done within the 24 hour period between the refusal to board on the 22nd December and the hearing in the High Court on the 23rd December. It therefore follows that this could easily have been arranged between the 9th and 22nd of December. Moreover he submits that the Irish Central Authority’s letter to the Polish authorities on the 12th December suggests that it immediately recognised the risk that he might not board the plane.

53. Therefore, the appellant submits that, applying Vilkas , what occurred in Dublin airport was entirely foreseeable. Both national authorities had been on notice of it for ten days. Accordingly, it cannot have been a force majeure for the purpose of Article 23(3), and the High Court and Court of Appeal erred in their judgments in this respect. Mr. Skiba’s fear of flying did not prevent his surrender; it merely required the making of alternative transport arrangements rather than a flight.

54. Whilst under section 16(5) of the 2003 Act it is for the Court to determine whether a failure to surrender occurred “because of circumstances beyond the control” of the executing or issuing State, that necessarily requires analysis of the actions adopted by those States. As the Central Authority had informed the Polish authorities of the necessity to make alternative arrangements, what transpired manifestly cannot have been a situation beyond the control of those States. The Polish authority was invited on the 12th December to make such arrangements or, alternatively, to indicate whether this would not be possible “due to circumstances beyond the control” of that State. Despite this, no alternative arrangements were made.

55. It is submitted that judgment of the Court of Justice in Case C-237/15 PPU Minister for Justice v. Lanigan highlights the importance of diligence on the part of both Member States where the requested person is in custody pending surrender. Moreover, in Case C-396/11 Ministerul Public – Parchetul de pe lângã Curtea de Apel Constanþa v. C iprian Vasile Radu the CJEU stressed that the length of detention on foot of an EAW should not exceed that which is reasonably required as otherwise it becomes arbitrary and therefore offends Article 5 ECHR.

56. Article 23 of the Framework Decision and section 16(5) of the 2003 Act place an obligation on the State to guard against the consequences of an abnormal event by taking appropriate steps without making unreasonable sacrifices. Here, Ireland and Poland were on ample notice of Mr. Skiba’s fear of flying. It was well within their power to organise overland transport before the 22nd December, 2016. Due diligence required same, rather than persisting with an abortive attempt to remove him by air and the consequential imposition of an additional period of time in prison here.

Submissions of the Respondent

57. The Minister submits that Vilkas must be read in light of the questions posed to the Court and the factual background of that case. He does not dispute that the principle of conforming interpretation applies in this case (Case C-105/03 Criminal Proceedings against Pupino [2005] ECR I-05285). This principle provides that a national court has an obligation to refer to the content of the Framework Decision when interpreting the relevant rules of its national law and in so far as possible to render it in conformity with the principles of EU law. The Minister accepts that the meaning ascribed to “circumstances beyond the control” by the CJEU in Vilkas should equally apply in our domestic law.

58. The respondent submits that while the judgment of the Court of Appeal did not specifically endorse what the CJEU eventually decided, its decision is in total conformity with the Vilkas judgment. The Court of Appeal carefully considered whether or not a statement that a person had a fear of flying, in itself, made it foreseeable that the requested person would resist boarding, causing the surrender not to be effected. That Court fairly summarised the appellant’s argument as being that once Sergeant Kirwan had been informed that he had a fear of flying, it was reasonably foreseeable that he would resist boarding the aircraft or create such a disruption as to cause a pilot to refuse him permission to board. Notably, no argument was advanced that resistance to surrender by the requested person was something which was properly to be regarded as an abnormal circumstance outside the control of the authorities.

59. The Court of Appeal carefully analysed (at para. 33) whether or not informing Sergeant Kirwan of the appellant’s fear of flying made it foreseeable that the surrender attempt would have to be abandoned. The Court came to the view that this “bald assertion”, absent supporting material, could “do no more than flag a remote and theoretical possibility, rather than a reasonably foreseeable risk to be actively responded to.” This, the Minister submits, was a perfectly logical conclusion to reach. In this regard he highlights the following evidence: (i) the only information conveyed to the Irish authorities regarding Mr. Skiba’s fear was the phone call from his solicitor; (ii) this notification was first made nine or twelve days after the High Court had ordered his surrender; (iii) Sergeant Kirwan told the High Court that he had been involved in hundreds of surrenders which had gone according to plan, notwithstanding that persons involved were apprehensive about flying; (iv) Mr. Skiba’s behaviour on the 22nd December, 2016, would not support the proposition that it was foreseeable that his surrender attempt would have to be abandoned, given that no resistance or anxiety was obvious until the very last stage of pre-flight procedure when he refused to board the plane; and (v) no evidence of the appellant’s past behaviour was presented that would make it foreseeable that he would resist boarding.

60. The Minister submits that the correspondence between the Central Authority and the Polish authorities is largely irrelevant. It is the executing judicial authority, not the Central Authority, who is tasked with deciding whether or not the circumstances are “beyond the control of the state or the issuing state”. Although the appellant argues that the fact that the Central Authority advised the Polish authorities of the need for alternative arrangements proves that it was foreseeable that he might not board the plane, it is more accurate to categorise this argument as the Court of Appeal did, namely, that the correspondence indicates acceptance by the Central Authority that such a proposition could be argued on the appellant’s behalf.

Discussion/Decision
61. Humphreys J. in the High Court declined to follow the Opinion of Advocate General Bobek insofar as the interpretation of the words “circumstances beyond the control” in section 16(5)(a) was concerned. Even accepting that such phrase was to be equated to the concept of force majeure , he was of the view that the ordinary meaning of that term would not include elements such as foreseeability: accordingly, he refused to follow the approach adopted by the Advocate General. As we know, that approach was subsequently endorsed by the Court of Justice in its judgment dated the 25th January, 2017. It therefore obviously follows, that the judgment of the High Court is inconsistent with the meaning attributed to the corresponding terms of Article 23 F.D. by the CJEU.

62. The sole question for the Court, however, is whether the Court of Appeal was correct in its determination of the law in light of the subsequent decision of the CJEU in Vilkas . Both judgments have been explained in detail above. In this regard it should be said, first, that the Court of Appeal concluded by expressing itself satisfied that “the High Court judge’s assessment was in fact conducted with due diligence” and was otherwise consistent with the relevant evidence as given. At no point did Edwards J. demur from or criticise the approach of Humphreys J.

63. The reference to “due diligence” requires comment. It was stated in rejecting a submission that the judge’s assessment had to be from a “heightened due diligence” perspective, said to have been demanded by the Advocate General at paragraph 68 of his Opinion. In fact, in that paragraph the phrase used was “due consideration”. At para. 80, addressing the context of where the circumstances relied upon as justifying force majeure had previously occurred, he suggested that such circumstances would raise “the threshold” of the due diligence requirement. The CJEU made no mention of the phrase in any form. To avoid any confusion, it should be stated that the task of the court on a section 16(5) application is to conduct a careful analysis of the presenting circumstances and reach a conclusion based on what is probable. No level of enhanced consideration, whether called “due diligence” or “heightened due diligence” or, in another context, “anxious scrutiny”, is called for.

64. In any event, as has been pointed out by the Minister, the Court of Appeal appears to have followed the Opinion of the Advocate General, at least implicitly so. Unlike Humphreys J., who discarded foreseeability as an element to be considered, the Court of Appeal approached the issue by putting the foreseeability of Mr Skiba’s refusal to board the plane to the forefront of its analysis. In that general sense it applied at least that crucial aspect of force majeure as laid down by the subsequent CJEU judgment: it adopted foreseeability of the circumstances as a requirement of the test under section 16(5)(a). As noted, it did not expressly state that it was following the Opinion of the Advocate General or refer to the EU law definition of force majeure , nor did it say that Humphreys J. had applied the wrong test, but its approach to the issue was clearly very different from his. Ultimately, it reached the conclusion that it was not reasonably foreseeable that the appellant would refuse to board the plane and so affirmed the judgment of the High Court, but its pathway to this point differed significantly from that which led the learned trial judge to the same outcome.

65. In that respect, at least, it must be said that there is no question of the Court of Appeal having applied the wrong test at a general level, nor is there any great inconsistency in principle with the decision of CJEU in Vilkas , insofar as the requirement of unforeseeability is concerned. The question really is whether the Court of Appeal’s conclusion is sustainable in light of the further specific principles articulated in Vilkas : in particular paragraphs 53-64, which contain a number of more detailed points concerning force majeure and the foreseeability of a person’s refusal to board an airplane in the context of Article 23(3) F.D.; indeed, with all due respect to the Court of Justice, these same points had previously been articulated in the erudite Opinion of the Advocate General. Although the Court of Appeal undoubtedly assessed foreseeability, it will also be necessary for this Court to analyse that element by reference to the more detailed principles contained in the CJEU judgment.

The Proper Construction of Section 16(5)(a)

66. Before moving on to conduct such an assessment, I should say a few words about the interpretation of the phrase “circumstances beyond the control” as it appears in section 16(5)(a) of the 2003 Act and the impact of the CJEU’s Vilkas judgment on the proper meaning of that term. The issue essentially is whether the relevant text of section 16 can be read to conform with the interpretation adopted by the CJEU of the corresponding portions of the Framework Decision. The undoubted purpose of, inter alia , section 16(5)(a) of the 2003 Act was to transpose Article 23(3) of the Framework Decision. The principle of conforming interpretation and its application to section 16 is discussed at some length in the judgment of the Court delivered today in Minister for Justice and Equality v. Vilkas. That principle dictates that when applying national law enacted to implement an EU measure, as in this case, the domestic court that is called upon to interpret it, must do so as far as possible in the light of the wording and purpose of the relevant Framework Decision in order to attain the result which it pursues. This rule, however, as we shall see in a moment, has its limits both in EU law and in national law; the Vilkas judgment is in large respect concerned with those limits.

67. Nonetheless, it is true that, insofar as the actual language used in enabling legislation permits, it remains highly desirable that the construer of that legislation should be capable of having regard to the instrument sought to be transposed. The judgment of the CJEU is undoubtedly binding as regards the proper construction of Article 23 of the Framework Decision. As explored in Vilkas, however, that fact is not necessarily determinative of the proper interpretation of the relevant provisions of the 2003 Act. That Act must in the first place be interpreted in accordance with the normal rules of statutory interpretation, meaning that the terms of its provisions will first be accorded their ordinary and natural meaning in the context in which they appear. As this Court’s judgment in Vilkas demonstrates, there is a limit to how much the plain meaning of the text of the 2003 Act can be displaced in order to conform with the interpretation given to Article 23(3) by the CJEU. If there is an irreconcilable inconsistency between the words of the domestic statute and those of the EU instrument, such that the national legislation cannot be read otherwise than contra legem , even taking account of the principle of conforming interpretation, it is the former which must prevail: (see – on the domestic side, Dundon v. Governor of Cloverhill Prison [2006] 1 IR 518 and Rimsa v. Governor of Cloverhill Prison [2010] IESC 47, both of which concerned the meaning of subsections of section 16 of the 2003 Act, and also Minister for Justice v. Altaravicius [2006] 3 IR 148, – on the EU side, see Case C-105/03 Criminal Proceedings against Pupino [2005] ECR 1-5285, paragraphs 44 and 47, and Case C-212/04 Adeneler & others v. Ellinikos Organismos Galaktos , paragraph 110).

68. In Vilkas , I have reached the conclusion that despite the clear intention of the Oireachtas to transpose Article 23 F.D. by way of section 16 of the 2003 Act, the text of that section cannot be read in line with the purposive construction given to Article 23 by the CJEU in Vilkas , where it was held that the provision in question permits of the setting of multiple new dates for surrender (para. 41 supra ). It would simply be too much of a reach for the domestic legislation to have that same outcome in respect of the relevant subsections of section 16.

69. However, no such difficulties arise in this case as I am satisfied that the key phrase in section 16(5)(a), “circumstances beyond the control of the State or the issuing state concerned”, can and must be given the same meaning as its direct EU equivalent, being that in the first sentence of Article 23(3) F.D., “circumstances beyond the control of any of the Member States”.

70. The CJEU interpreted the latter phrase to refer to the concept of force majeure as understood in EU law, the elements of which are described above (para. 44). It is true, as Humphreys J. stated in the High Court, that this is a departure from the normal meaning that would be attributed to these terms in the domestic context. If the phrase “circumstances beyond the control” were to be interpreted in a purely common law manner, it is highly doubtful, for example, that any element of foreseeability would feature in that analysis. On such a reading, as the learned High Court judge found, what occurred at the departure gate in Mr Skiba’s case could certainly be considered as being a circumstance beyond the control of the State, as but for the actions of Mr. Skiba over which the Minister had no control, the surrender would have been effected successfully.

71. Clearly, however, the relevant provisions cannot be approached in a manner, entirely isolated from the Framework Decision. Thus, in line with the principle of conforming interpretation, I am satisfied that the phrase “circumstances beyond the control” in section 16(5)(a) must be read as meaning force majeure as defined by the CJEU in the judgment discussed above. There are, in my view, three reasons why such a construction is possible here whereas it was not possible to reach a similar conclusion in the Vilkas decision, delivered today. First, and most importantly, the words of the statute sought to be construed here are, in essence, exactly the same as those found in the Framework Decision. In both instruments what is at issue is a single phrase of a single clause of a sentence – “circumstances beyond the control”. This was, as such, a direct transposition of the words of the Framework Decision. This is unlike the provisions at issue in Vilkas, where, as the submissions of the parties and the judgment of this Court will show, what was involved was a complex construction of a number of different subsections and their interplay with one another. In that case s. 16(5) and (5A) of the 2003 Act,, although certainly intended to transpose the EU legislation, did not do so verbatim, and it was there that the difficulties of interpretation arose. In this case, on the other hand, we have a judgment of the CJEU on the meaning of precisely the same words in the supranational instrument as appear in the domestic legislation. Thus this is precisely the kind of situation in which the principle of conforming interpretation must be in play.

72. Second, it should be noted that the Minister agrees that the meaning ascribed to “circumstances beyond the control” by the CJEU in Vilkas should equally apply in our domestic law. He thus accepts the case as binding in that respect. This is unlike the situation which presented before this Court in Vilkas itself, where Mr Vilkas strenuously and persuasively argued that although the CJEU judgment was obviously binding as regards the interpretation of Article 23 F.D., the same interpretation could not carry over to the relevant provisions of the domestic statute because the clear and literal meaning of section 16 produced the opposite result: it would therefore be to stretch the meaning of the text too far to hold otherwise.

73. Finally, I would also observe that the interpretation adopted by the CJEU is one that favours the liberty of the requested person. It is more difficult for the executing Member State to demonstrate the existence of force majeure as understood in EU law than it would be to establish mere circumstances beyond its control, which of course is but one element of the definition of force majeure : if the latter was the only requirement it would be inherently easier for the State to successfully extend time and by definition, continue further detention. Thus adopting a conforming interpretation in this respect in fact favours the subject person by making it less likely that circumstances warranting an extension of time will be found to exist. There could accordingly be no question of any undue intrusion on the liberty of such person by virtue of applying the CJEU’s judgment to s. 16(5)(a) of the 2003 Act. In making the latter point I am not suggesting the conforming interpretation applies in one direction only: clearly it does not. Rather I make the point in the context of detention and of Article 5 of the ECHR.

74. It therefore follows that the phrase “circumstances beyond the control of the State or the issuing state concerned” in section 16(5)(a) of the 2003 Act must be given the definition of force majeure as described by the CJEU in Vilkas (see para. 44, supra ).

The Elements of Force Majeure Applied to this Case

75. Turning, then, to the issue of whether Mr Skiba’s refusal to board the plane can be considered as a force majeure within the meaning of EU law, as described above. It will be recalled that there are four elements to the relevant definition of force majeure (para. 45, supra ). The circumstances must have been (i) abnormal; (ii) unforeseeable; and (iii) outside the control of the asserting party; and, furthermore, (iv) it must not have been possible to avoid the consequences of the force majeure in spite of the exercise of all due care. Guidance on the application of each of these factors in circumstances where a requested person refuses to board an airplane is contained in both the Opinion of Advocate General Bobek and the judgment of the CJEU in Vilkas . It will be necessary to examine each such element in turn, taking account of the specific principles articulated at paragraph 45, supra .

a. Abnormal circumstances beyond the control of the authorities concerned

76. These two elements can be dealt with together and in brief. As noted by the CJEU at paragraph 58 of its judgment, resistance to surrender put up by a requested person may properly be regarded as an abnormal circumstance outside the control of the authorities concerned. Such conclusion seems self-evident and is not in any event challenged by the appellant, who instead contests the decision of the Court of Appeal on the foreseeability issue. No more specific guidance on the application of either such term is contained in the Opinion of Advocate General Bobek.

77. In the circumstances, and in the absence of there being any plausible suggestion to the contrary, I would consider it uncontroversial that these two elements are satisfied in the circumstances of Mr Skiba’s case. His resistance to surrender was abnormal in the sense of being unusual or atypical, even if not totally unprecedented: the evidence of Sergeant Kirwan was that the vast majority of surrenders by commercial airliner are effected smoothly. It was, moreover, clearly beyond the control of the authorities concerned. I would therefore consider that these constituent requirements of force majeure have been established.

b. Whether the appellant’s resistance to surrender was foreseeable

78. The principal dispute between the parties concerns whether or not it was foreseeable that Mr Skiba would refuse to board the plane at Dublin airport. In the ordinary course one would presume that such was a finding of fact to be made by the trial judge, but no such assessment was made in this case. Given the manner in which the appeal was argued, the fact that this is the most contentious issue between the parties and further, the fact that the appellant has been surrendered, it seems that the only choice for this Court is to adopt the same course as the Court of Appeal did, and for itself to assess the foreseeability of Mr. Skiba’s resistance to surrender (see however para. 90 infra ).

79. I would observe at the outset that one cannot but agree with both the Advocate General (at paragraphs 70 and 71 of his Opinion) and the Court of Justice (at paragraph 60 of its judgment) that it is foreseeable that a commercial airline pilot will refuse to allow a violent and aggressive passenger to board his plane. The real point, however, is whether it was foreseeable that the requested person would be violent, aggressive, or otherwise conduct himself with similar effect in the first place

80. It will be recalled that the CJEU stated, at para. 59 of its judgment, that the fact that certain requested persons put up resistance to surrender cannot, in principle, be classified as an unforeseeable circumstance. The reference to “certain” requested persons begs closer analysis. An obvious corollary is that there are certain requested persons in respect of whom resistance can be classified as unforeseeable. This is put beyond doubt by paragraph 64 of the judgment, where the Court stated as follows:

“[I]t cannot be entirely ruled out that, on account of exceptional circumstances, it is objectively apparent that the resistance put up by the requested person to his surrender could not be foreseen by the authorities concerned and that the consequences of the resistance for the surrender could not be avoided in spite of the exercise of all due care by those authorities.”
81. However, this passage certainly seems to envisage that it will only be in very rare circumstances that resistance to surrender could be classified as unforeseeable. Mr Skiba’s case is obviously unlike Mr Vilkas’s in that he resisted boarding an airplane only once. What was at issue in Vilkas was resistance to surrender by airplane on a second occasion, in circumstances where a first surrender by air had already failed due to Mr Vilkas’s refusal to board. The passage just quoted may perhaps best be read in that light; so viewed, it seems unremarkable to state that it would only be in exceptional circumstances that refusal to board an airplane on a second occasion, when surrender on the first occasion had failed for that very reason, could be regarded as unforeseeable. This very issue was addressed by the CJEU at paragraph 60, where it noted that “in a situation such as that at issue in the main proceedings, where the requested person has already resisted a first surrender attempt, the fact that he also resists a second surrender attempt cannot normally be regarded as unforeseeable.”

82. On the other hand, if the above quote from paragraph 64 were to be read as being generally applicable on all surrender attempts, even first attempts at surrender, then the default setting would seem to be that resistance to surrender, to the point of an airline pilot refusing to allow the person to board, is generally foreseeable, and thus could not amount to force majeure absent truly exceptional circumstances. Such a reading would appear to be out of keeping with the reality of surrenders by air, which generally are effected without such disruption. It would, moreover, render it exceedingly straightforward for a requested person to prevent both surrender and the fixing of a new date for surrender, simply by refusing to board the plane.

83. I would therefore take the view that the “exceptional circumstances” referred to, apply only on a second or subsequent surrender attempt. That is not to say that resistance on a first occasion will therefore always be considered unforeseeable. Rather we must return to the point made above: resistance by certain requested persons may be foreseeable, but by others it may not. The question then is in respect of what class or classes of requested person resistance might be foreseeable.

84. The judgment of the CJEU contains little additional guidance in that regard. Some further insight into matters that may be relevant is however contained in the Opinion of Advocate General Bobek. At paragraph 68 of that Opinion, quoted at para. 30, supra, he stated that aggressive behaviour at the time of surrender may be considered as an unforeseen and extraneous event “only if the factual elements at the disposal of the authorities in no way hinted at such a scenario occurring.” He identified a number of factors as being relevant to the authorities’ assessment of the likelihood of such a scenario, which must be the specific factual background of the individual case. Such considerations will include (i) the crimes for which the person is requested or has been convicted; (ii) his or her behaviour during detention; (iii) his or her previous records; and (iv) any other elements related to his or her background that may emerge from the national file. Also relevant in this regard is the following extract from his Opinion:

“84. In conclusion, if the narrow interpretation of force majeure as suggested in this Opinion is embraced, it is clear that any rerun of Article 23(3) of the Framework Decision will occur only in very exceptional situations. On this understanding, the aggressive behaviour of the requested person frustrating a first surrender attempt could be qualified as force majeure only if there was nothing in the file and the facts of the individual case which would have led the national judicial authorities to have reasonably foreseen such a course of events. …”
85. There is no suggestion that he considered the above factors to be exhaustive, nor are they binding on the Court in any event. They are however, helpfully illustrative of the kind of considerations which a court must take into account when conducting the analysis required by section 16(5)(a). That exercise, naturally will be heavily dependent on the particular facts of a given case.

86. Looking at each such factor in turn, the first thing to be said is that the crimes for which Mr Skiba was convicted were (i) a drugs offence and (ii) four burglaries. It is not entirely clear from the certified translation of the EAW precisely what offence the drug charge would equate to in this jurisdiction, though it seems to be for possession of marijuana and is therefore relatively minor. The total amount of property taken during the burglaries is stated as having a value of 4950 Polish z³o ty, which at the time of this judgment equates to roughly €1,150. The burglaries were effected by damaging locks and/or breaking windows. As above noted (para. 12), the longer of the two sentences facing the applicant was one-year and six months, a relatively short period of imprisonment. For present purposes what is most significant is the nature of the offences. Although drugs and property offences can be very serious crimes in their own right, those for which Mr Skiba was convicted do not appear to have involved any violence or aggression towards any other person. Certainly there can be no strong link between his having committed these offences and his subsequent refusal to board the airplane.

87. Neither is there any suggestion in the EAW of a prior history of violent or physical offences, although there is a reference to the four burglaries having been committed “within the period of five years after serving more than six months’ imprisonment for an intentional similar offence”, so evidently the appellant had some previous convictions. As regards his behaviour during detention, no untoward or aggressive behaviour has been mentioned. Indeed, as addressed in more detail below, the most striking aspect of the appellant’s behaviour was the fact that, other than his solicitor’s phone calls, he made no protest whatsoever against his surrender by airplane until he had reached the departure gate at Dublin Airport. Nothing else on the disclosed file speaks directly to this point one way or the other. In my view, therefore, there was nothing in his prior history or behaviour to suggest that Mr Skiba would refuse to board the plane, and in that sense the factors identified by the Advocate General tend to lean in favour of the unforeseeability of such refusal.

88. Of course, regard must also be had to the various submissions made by the respective parties for or against the foreseeability of the appellant’s refusal to board the aircraft. The Minister has highlighted a number of factors that tend to undermine Mr Skiba’s own personal fear of flying. In this regard he points out that the only information conveyed to the authorities was a single phone call stating that the appellant has a fear of flying; his solicitor did not even expressly say that (there was a chance that) he would not board the plane due to his fear. The appellant did not mention said fear at the original surrender hearing before the High Court; in fact there was no mention of this fear until nine (or twelve) days after the surrender order was made. The Minister also points to the appellant’s behaviour on the morning of surrender, noting that Mr Skiba made it all the way to the departure gate at the airport before raising any further objection to his surrender by plane. As noted above, there was a total absence of any medical or other supporting evidence to bolster the appellant’s claimed fear of flying. Indeed, no reference was made by his solicitor to the extent, degree or history of his fear of flying. Other relevant matters at a general level were Sergeant Kirwan’s evidence to the effect that he has been involved in hundreds of surrenders and that many people express a fear of flying, but very few in fact refuse to board the aeroplane. It was argued that while many people would prefer to travel by other means if possible, actual phobia of flying (aviophobia) is very rare. Or, as counsel put it at the hearing, for every Dennis Bergkamp, there are a hundred people who will get on the plane notwithstanding their fear.

89. As against this, the primary argument on the appellant’s behalf was the phone call made by his solicitor to Sergeant Kirwan. It was asked why, as a matter of common sense, would the solicitor have informed the authorities of Mr Skiba’s fear of flying other than to put them on notice of the risk or possibility that he would not board the plane. Despite having two weeks’ notice of this fact, no alternative travel arrangements were put in place.

90. Taking all of the foregoing factors into account, it may fairly be said that the issue of the foreseeability of Mr Skiba’s refusal to board the flight could be decided either way. It is, ultimately, a fine call, and one on which reasonable people could very well differ. In such circumstances an appellate court would typically be required to defer to the decision of the trial judge provided that there was some credible evidence to support the conclusion reached. In this case, however, the learned judge adopted a narrower definition of force majeure than did the CJEU in its subsequent judgment; he therefore did not assess the foreseeability of Mr Skiba’s refusal to embark the plane. There can thus be no question of simply standing over the conclusion of the High Court. Moreover, although the Court of Appeal found that Mr Skiba’s refusal to board was unforeseeable, that court does not have the same advantages as the High Court does in terms of seeing live witness testimony etc. which explain the particular deference shown to findings made at trial level. The Court of Appeal was no better placed to review the transcript and the evidence than this Court is, and so it follows that this Court is free to reach its own conclusion on the matter.

91. Of course, as noted above, in the normal course the way forward would be to remit the matter to the High Court in order for it to make a finding applying the test as articulated in this judgment. For the reasons previously articulated (paras. 35 and 39 supra ) this is not feasible: and so it has been suggested that this Court ought itself to make such finding. In any event, it is not clear that any further or additional evidence would be led on a re-hearing which would materially alter the relevant considerations. Moreover the appellant’s surrender on the 14th January, 2017, would strongly militate against such a course. Accordingly, I have assessed each of the above factors in order to arrive at my own view on the issue. Before stating my conclusion, however, I will venture to first say a few words about the standard of foreseeability required.

92. The judgment of the Court of Justice in Vilkas is silent as to the degree of foreseeability at issue. The Court of Appeal referred to the fact that the appellant’s “bald assertion” raised only a “remote and theoretical possibility” of failure to board, rather than a “reasonably foreseeable risk to be actively responded to”. This standard of “reasonable foreseeability” seems to me to be appropriate given the nature of the inquiry. Almost any scenario can be foreseen at the theoretical level. A great many eventualities may be foreseen without there being any realistic prospect of their coming to pass. A standard of reasonable foreseeability, however, ensures that the State will not be able to rely on circumstances that it ought to have foreseen, whilst preventing the requested person from denying the existence of a force majeure on the basis of some remote or fanciful foreseeability of an intervening event.

93. Having weighed the relevant considerations against this standard, I am of the view that it was not reasonably foreseeable that Mr Skiba would refuse to board the plane. As rightly pointed out by the Court of Appeal, a claim to have a fear of flying is easily asserted yet difficult to disprove. Something more than a mere assertion must be required before it meets the requirements threshold. The preponderance of the evidence did not suggest any kind of a reasonable prospect that Mr Skiba would not board the aeroplane. No mention of a fear of flying was made at the initial surrender hearing, nor indeed for nine (or twelve) days after that. It will be recalled that even when such fear was communicated to the Extradition Unit, Mr Skiba’s solicitor did not go so far as to expressly say that there was a chance that his client would not board the plane, although it must be said that the Irish authorities understood the call to mean as much (on which see para. 97, infra ). No reference was made to any previous history of a fear of flying; no examples were given of any prior occasions on which Mr Skiba had been unable to travel by air due to this fear, or on which he had opted to travel by alternative means instead. There was a total lack of supporting evidence of any kind. Moreover, his behaviour on the day in question, right up until the boarding gate, was not suggestive of a man who would refuse to embark the airplane. Despite obviously knowing his destination, he made no protest all the way to the airport, nor did he attempt to explain that he would not be able to fly; if a person truly did have a crippling phobia of flying, you would perhaps expect them to make earnest and repeated exhortations of same, at least to the authorities while en route to the airport.

94. It is not my intention to be prescriptive regarding the kind of evidence that might suffice to put the authorities on notice of a genuine fear of flying such as might prevent surrender by air. What is clear is that some form of cogent supporting evidence is necessary to make the case in that respect. Ireland is an island and the overwhelming number of non-nationals who arrive here will do so by airplane. Commercial flight has long been a feature of modern life. In most cases it should not be unduly burdensome to produce an email receipt of a ferry ticket to back up a fear, if such existed. Medical or expert evidence would surely be sufficient in this regard, though what form that might take is not clear. Third party evidence from a relative or friend may also suffice. At the very least, an explanation of the history of the asserted fear and its previous implications for the person’s travel arrangements, quite possibly with supporting documentation if necessary, would surely be required. I am by no means saying that all of the above will be necessary in every case, but some form of particularisation of the claimed phobia will be required. Without such supporting evidence, it seems to me that it simply cannot be said that it was reasonably foreseeable that Mr Skiba would not board the flight, notwithstanding the fact that his fear had been flagged with the authorities and that there will always be some level of theoretical risk of a requested person refusing to fly.

95. Moreover, if a mere assertion of the fear, without more, was enough in itself to render foreseeable any failure to board, then the same could have significant logistical implications for the manner in which surrenders on EAWs are effected by the executing authorities in this State. It hardly needs stating that as an island nation, the default option for surrender from Ireland will almost always be a commercial flight. Any other option is necessarily and inherently going to be more time-consuming, expensive and difficult to organise, if routinely required. Such is likely to pose even greater difficulty if and when Britain leaves the European Union. It would not be conducive to the objects of the EAW system if surrender by air could be frustrated simply by asserting fear, over the phone without further information or explanation.

96. In future cases, whether the totality of the information at the authorities’ disposal was sufficient to render the refusal to board foreseeable will be a matter for the High Court judge hearing the application for an extension of time.

97. That leads directly on to a final point which merits consideration in relation to foreseeability: it is the relevance of the correspondence between the Irish and Polish authorities and whether the reaction of the Irish Central Authority has any bearing on whether Mr Skiba’s refusal to board was foreseeable. The appellant says that the Central Authority immediately recognised the risk that he might not fly. It had two weeks’ notice of the difficulty with surrender by air. He argues that had his intention been to evade surrender, he would not have given the authorities any notice of his fear of flying. The Minister, on the other hand, says that the correspondence is largely irrelevant, as it is the executing judicial authority, not the Central Authority, which is tasked with deciding whether or not the circumstances amounted to force majeure.

98. Edwards J., at paras. 34 and 35 of the judgment of the Court of Appeal, seems to have taken the view that the correspondence does no more than indicate that the Irish authorities accepted that the appellant could conceivably argue that it was foreseeable that he would not board the aircraft, but that it does not establish that the authorities in fact thought this eventuality was reasonable to foresee. This view is open on a reading of the documents in question. However, and respectfully, it may be that the better view of the original documents is that the authorities certainly did believe that there was a chance that Mr Skiba would not board the plane. Such to me seems to the proper interpretation based on the wording used and the tone of and emphasis in the letters and emails. The Court of Appeal may therefore have undersold the extent of the Irish Central Authority’s concern. I might also note as an aside that the Irish authorities appear to have been far more concerned about the risk of Mr Skiba refusing to board than the Polish authorities were.

99. However, notwithstanding these observations, the Minister is correct ins his submission that it is the High Court, rather than the Irish Central Authority, to assess whether the presenting facts constitute “circumstances beyond the control” of the State. This argument was also accepted by the Court of Appeal (para. 35). As such, there is limited relevance to be accorded to the correspondence between the relevant authorities in Ireland and Poland. Of course, it may be asked how something can be determined not to have been reasonably foreseeable when it actually was foreseen. I suspect the answer was identified by Edwards J. when he stated that the Central Authority was presumably reacting with an overabundance of caution to the Opinion of Advocate General Bobek. Overall, however, notwithstanding the reaction of the authorities, the Court is satisfied that more is needed to establish reasonable foreseeability of a failure to board an airplane than a single phone call from a solicitor to the gardaí, unsupported by any evidence, documentation or even detail. Generally the determination will be for the High Court. In the circumstances of this appeal it is for this Court to decide. I am satisfied that it was not reasonably foreseeable that Mr Skiba would refuse to board the plane. This element of force majeure is therefore made out.

c. Whether it was possible to avoid the consequences of the force majeure

100. The final element of force majeure states that the circumstances must have been such that it was not possible to avoid their consequences despite the exercise of all due care. The CJEU identified two material considerations in this regard, namely, the possibility of recourse to coercive measures and the option of utilising an alternative means of transport whose use cannot be effectively prevented by the requested person’s resistance. It may be that further matters still would require to be considered under this heading, depending on the circumstances.

101. As to the use of coercive measures, the type, nature and scale of which were not elaborated upon by the Court, it is clear that such was not a viable option under the circumstances. Whilst some degree of reasonable force may be permissible to effect a surrender on some occasions, in this case Mr Skiba’s resistance was such that the airline pilot understandably refused to have him aboard. There could obviously be no question of subduing the requested person to such an extent as to prevent them from continuing their resistance after being put on the airplane. Given that the captain simply would not have permitted Mr Skiba on board in light of the level of resistance he was offering, it does not seem that there were any permissible coercive measures that the authorities could have used in order to effect the surrender.

102. Then there is the issue of alternate means of transport. Evidently, given that Mr Skiba’s surrender was ultimately effected by sea and over land, there was a viable alternative to flight available. It would, moreover, have been possible to arrange for transport by such means when the surrender order was first made, or even after the solicitor’s phone calls on the 9th and 12th December. However, in my view such issue cannot be assessed in isolation from the requirement of foreseeability. Simply because it would have been possible to arrange for an alternative surrender method does not mean it was incumbent upon the State to do so unless there was a reasonably foreseeable prospect of the surrender by air being prevented. For the reasons stated above, I am of the view that the same was not reasonably foreseeable.

103. Accordingly, the fact that there was a mode of transport available which could not have been frustrated by the appellant’s resistance does not in itself mean that consequences of said resistance ought to have been avoided if due care had been exercised, as there was no reasonable basis to suggest that recourse to an alternate method of surrender would in fact be necessary. The position might have been entirely different had Mr Skiba’s solicitor provided the authorities with compelling evidence of his client’s phobia; in such circumstances his refusal to board would not only have been foreseeable, but it could also be said that it could have been avoided had the alternative transport method been arranged instead. In the absence of any reasonably foreseeable risk that Mr Skiba would not board the plane, however, I am of the view that it cannot be said that the State failed to exercise due care in not organising an alternative means of surrender instead.

104. A similar point may be made in respect of the holding of the CJEU that force majeure will justify extending the surrender period only where it means that surrender is prevented, rather than merely rendering it more difficult. Such assessment must surely be carried out at the time of the force majeure itself; it cannot be the case that one can determine with hindsight that an alternative method of surrender would not have been frustrated, and that the surrender was not therefore prevented. I am satisfied that at the time when he refused to board the plane, given the timeframe involved, Mr Skiba’s actions prevented his surrender to Lithuania.

Conclusion on force majeure/circumstances beyond the control of the State

105. For the above reasons, I am satisfied that Mr Skiba’s refusal to board the plane constituted a “circumstance beyond the control” of the State within the meaning of section 16(5)(a) of the 2003 Act, which is to be interpreted in line with the definition of force majeure laid down in the judgment of the CJEU in Vilkas . It was an abnormal circumstance beyond the control of the State. Although I accept that an argument can be made both ways as to whether Mr Skiba’s resistance was foreseeable, on balance I am of the view that it was not reasonably foreseeable. Based on the information available to the State authorities and the timeframe involved, it was also not possible to avoid the consequences of his resistance in spite of the exercise of all due care. His resistance in the circumstances was such as to prevent his surrender within the time period laid down, rather than merely to render more it difficult.

106. As a consequence I am satisfied that the preconditions to the fixing of a new date for surrender pursuant to section 16(5)(a) of the 2003 Act existed, and that the learned High Court was entitled in the circumstances to so do. In so doing, however, he adopted an interpretation of force majeure which is not in keeping what that subsequently laid down by the Court of Justice in Vilkas . As implicitly recognised by the Court of Appeal, this requires an analysis of the foreseeability of the circumstances said to constitute the force majeure , as it also does an assessment of the other elements of force majeure as described in Vilkas and as applied in this judgment.

Further Issue: Proper Construction of Section 16(5)(b) of the 2003 Act
107. As noted above, a further issue arose in the course of the oral hearing of the appeal. It concerned the interpretation of the word “discharged” as appears in section 16(5)(b) of the 2003 Act; if the High Court is not satisfied that a force majeure has been made out and it therefore declines to order the new date for surrender sought by the authorities, then the Court shall, pursuant to section 16(5)(b), order that the requested person be discharged. The corresponding provision of the Framework Decision is Article 23(5), which states that “[u]pon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.”

108. As noted by Advocate General Bobek at paragraph 89 of his Opinion in Vilkas , the questions referred to the CJEU by the Irish Court of Appeal in that case did not strictly speaking raise the issue of the interpretation of Article 23 F.D. Nonetheless, the CJEU at paragraphs 66-73 of its judgment described what should happen in the event that the circumstances cited as warranting an extension of time are deemed not to constitute a force majeure . The Court observed that, pursuant to Article 1(2) F.D., Member States are in principle obliged to give effect to a European arrest warrant. It went on to hold that the rule set out in Article 15(1) F.D., which provides that the executing judicial authority is to decide within the time limits defined in the Framework Decision whether the person is to be surrendered, cannot be interpreted as meaning that once the time limits prescribed in Article 23 F.D. have expired, the states concerned are no longer able to agree on a new surrender date or that the executing Member State is no longer required to carry on with the procedure for execution of the EAW. It therefore followed that the mere expiry of the time limits in Article 23 F.D. cannot relieve the executing Member State of its obligation to carry on with the procedure for executing an EAW and to surrender the requested person, and that the authorities concerned must agree on a new surrender date for that purpose. The Court went on to hold, however, that in such a situation, it follows from Article 23(5) F.D. that, on account of the expiry of the time limits prescribed in Article 23, the requested person must be released if he is still being held in custody.

109. The issue which was canvassed at the hearing was how the word “discharged” in section 16(5)(b) should be read in light of the last-mentioned portion of the CJEU judgment. It was argued on behalf of Mr Vilkas that the word “discharged” in Irish law must mean a full and unconditional discharge, and that the same is incompatible with the meaning attributed to the word “released” in the European judgment. The Court invited further written submissions from the parties on this issue, and also afforded them to make further oral submissions following the hearing of the Vilkas appeal if they so wished. This same issue was raised in that appeal also.

110. While I am grateful to the parties for their submissions, it is not necessary to address that issue in this judgment in light of my above conclusion in respect of the interpretation of section 16(5)(a) and its application on the facts of this case. As I have stated above, here there were “circumstances beyond the control” of the State and thus the fixing of a new surrender date was appropriate. Accordingly, section 16(5)(b) does not arise in this case. However, this point is directly in issue in Vilkas , and regard should be had to the judgment of the Court delivered therein for an analysis of and conclusion on the topic.

Conclusion
111. For the reasons set out above, I would dismiss the appeal.

Minister for Justice, Equality and Law Reform v Slonski

[2010] IESC 19

JUDGMENT delivered on the 25th day of March, 2010 by Macken, J.

This is an appeal from the judgment of the High Court (Peart, J.) delivered on the 10th March, 2009 and the Order made thereon by which the High Court directed the surrender of the appellant to Poland, pursuant to s.16 of the European Arrest Warrant Act, 2003 (“the Act of 2003”).

The warrant in question, dated the 17th March, 2008, issued from a judicial authority in Poland in respect of the appellant and was duly endorsed by the High Court. The appellant was thereafter arrested. In the usual way, when the person sought to be surrendered pursuant to a European arrest warrant does not consent to the same, as the appellant did not, a Notice of Objection was filed on his behalf, the revised version of which, dated the 11th November, 2008, contained three objections to surrender, namely:

(i) That the appellant did not come within the provisions of s.10 of the Act of 2003 on the basis that he had not “fled” Poland after the imposition of a sentence of imprisonment;
(ii) The surrender was prohibited by part 3 of the Act of 2003 because the description of the offence contained in the European arrest warrant was not one to which Article 2.2 of the Framework Decision applied and was not either an offence which corresponds to an offence within the State, as required by s.38, and is not “a corresponding offence” as defined by s.5, of the Act of 2003;

(iii) The appellant should not be surrendered to Poland because he had already served all the required penalty during the course of his imprisonment in the State, he having been arrested, pursuant to the provisions of the Act of 2003. It would, therefore, be futile to surrender him to Poland.

Affidavits were filed, both on behalf of the appellant and also on behalf of the Minister, and it is common case that additional information was sought on behalf of the Minister from the Polish judicial authority pursuant to s.20 of the Act of 2003, and certain additional information was thereupon made available. I will refer to these matters further in the course of my judgment, where necessary.
Decision
Having regard to the findings which I propose to make, it is appropriate to commence with the first issue raised on behalf of the appellant in this appeal, namely, whether the learned High Court judge was correct in law, and the appellant says he was not, to direct the surrender of the appellant pursuant to s.16 of the Act of 2003, having regard to the appellant’s claim that he was not a person who comes within s.10 of the Act of 2003, he not having fled Poland, or more correctly, as it developed in the course of argument, on the basis that there was no evidence before the learned High Court judge upon which the judge could have properly found that the appellant had fled Poland within the meaning of the section.

Section 10 of the Act of 2003 provides as follows:

“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,

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 his affidavit, sworn on the 17th December, 2008, the appellant, in its material part, averred as follows:
“(3) I have been in Ireland since 2005 and I have been in custody here since March, 2005 when I was arrested for a drugs offence and subsequently sentenced to seven years imprisonment. Whereas I have been in different prisons, I have been in the Midlands prison since August, 2008. I was arrested on the extradition warrant on 25th December, 2008 and I have been in custody on that since then.
…

(5) I was not present in court in Poland on 4th November, 2005 when I was ordered to serve a period of imprisonment. I was in custody in Ireland. In the circumstances, I believe I cannot be regarded as having fled Poland before I commenced or completed serving that sentence.

(6) I believe the details specified in the European Arrest Warrant are inadequate and incomplete.”

It is helpful to set this issue in context by indicating what it is the learned trial judge said in relation to the issue of s.10 of the Act before dealing further with the issue. He stated as follows:

“The surrender of the respondent is sought by a judicial authority in Poland on foot of a European arrest warrant dated 17th March 2008 so that he can serve a sentence of 12 months imprisonment which was imposed upon him there on the 21st November 2003. That sentence satisfies the minimum gravity requirement, being a sentence of more than four months.
…

The sentence of imprisonment was conditionally suspended, the condition being that described in the warrant as “a curator’s supervision”. It appears that by the 4th November 2005 it had become known by the Polish court that the respondent had left Poland, which was a breach of the supervision condition, and on that date the court lifted the suspension and ordered execution of the sentence. The warrant discloses also that on the 4th April 2005 the respondent had landed at Dublin Airport and was detained there “while smuggling 500g of cocaine”. He was sentenced here in respect of that offence and sentenced to a term of seven years’ imprisonment which he is currently serving here.”

Insofar as the learned High Court judge’s finding is concerned, vis a vis fleeing, he stated as follows:

“I am satisfied firstly that the date on which this sentence was imposed was the 21st November 2003, and not the date on which the suspension was lifted on 4th November 2005. The wording of s. 10(d) is clear and unambiguous. If the respondent leaves the issuing state after that sentence was imposed and before he has served the sentence, it is clear that he must be considered as having fled the issuing state before serving the sentence, regardless of the fact that the suspension was lifted after he left. I reject this ground of objection.” (emphasis added)

That is the learned High Court judge’s finding in respect of the point of objection raised under s.10 of the Act of 2003.
It was argued on behalf of the appellant that the word “fled” in s.10 of the Act of 2003 must mean a person who has fled justice in the sense of having consciously evaded prosecution or serving a sentence, and cannot apply to leaving the issuing state for an unrelated reason, even a reason which involves engaging in a criminal enterprise, such as in the present case. If it had been intended otherwise, it is suggested that the Oireachtas would have used a more neutral word, such as “left” the issuing state. In that regard, Mr. Kelly, counsel on behalf of the appellant, invokes dictionary meanings of the word “flee”, but for the purposes of my judgment it is not necessary to consider these definitions in detail. Counsel on behalf of the appellant also invokes the decisions of this Court in MJELR v. Tobin [2008] IESC 3, and MJELR v. Sliczynski [2008] IESC 73, in support of his argument. He submitted, in particular, that there was no information before the High Court of the type which permitted this Court in MJELR v. Sliczynski, supra. to find that the appellant in that case “fled” within the meaning of s.10 of the Act.

Counsel argues that while additional information was sought by the respondent, pursuant to the provisions of s.20 of the Act of 2003, the information furnished, which was received on the 16th June, 2008, did not mention any factors concerning the conditions attaching to the suspension, the meaning of a “curator’s supervision”, the basis upon which the supervision or suspension was lifted, that is to say what particular terms were allegedly breached by the appellant, or the consequences of that breach which led apparently to the lifting of the suspension by the order made on the 4th November, 2005.

Mr. Farrell, counsel for the respondent, argues that it can be clearly implied from the terms of the warrant and from the lifting of the suspension, that there had been a breach of the curator’s supervision. He also contends that the appellant breached the terms of his suspended sentence by leaving Poland, because the practical effect of leaving was that he would no longer be subject to the supervision of the curator. Finally, he submits that although the appellant swore an affidavit for the purposes of contending that he had not fled Poland, he did not deal in his affidavit with any reason for leaving Poland or with any of the other information or material concerning leaving of Poland or, indeed, the curator’s supervision.

Mr. Farrell also submits that the learned High Court judge was likewise entitled to draw certain inferences from the information contained in the European arrest warrant and the additional information, that he did so correctly, and that having regard to the appropriate inferences which he drew, he was then entitled to conclude that the appellant had fled Poland within the meaning of s.10 of the Act of 2003, as the requirements for that section had been met, in accordance with the above cited case law, which he also invokes.

Apart from the submission made on behalf of the respondent by counsel, arising out of the above factors, there is one other piece of information that was before the learned High Court judge which is the content of paragraph 7 of the affidavit of Sergeant Jim Kirwan sworn on the 7th January, 2009 in the following terms, and arising out of his arrest of the appellant:

“I read over a praecipe of the offences contained in the warrant and asked “do you know what these are about” to which he (the appellant) replied “yes, I remember that I got a suspended sentence on this. …”.

I mention again the contents of paragraph 5 of the affidavit of the appellant, sworn on the 17th December, 2008, which in my view is slightly disingenuous and ambiguous as to the consequences which the appellant is contending for. It is as well to set this out again:

“I was not present in Court in Poland on 4th November 2005 when I was ordered to serve a period of imprisonment. I was in custody in Ireland. In these circumstances I believe I cannot be regarded as having fled Poland before I commenced or completed serving that sentence.”

The sentence therein referred to is the sentence which was suspended, but as I read paragraph 6 of the affidavit it appears to suggest, wrongly in my view, that the sentence only commenced on the 4th November, 2005 when the suspension was lifted. This is incorrect, and in that regard I am satisfied that the learned High Court judge was correct when he found that the sentence of imprisonment in question was the sentence imposed on the 21st November, 2003 (suspended) and not the order requiring that the appellant be admitted to prison once the suspension was lifted on the 4th November, 2005.
In one sense, therefore, the appellant does not, in his grounding affidavit, challenge at all the imposition of the sentence of imprisonment, or the suspension order, or the effect of that suspension order. It is, therefore, appropriate to consider only the legal argument made on the basis that the respondent failed to bring to the attention of the learned High Court judge evidence upon which the learned High Court judge could properly conclude that the appellant fled Poland.

It is, of course, for the respondent, as applicant, to bring to the attention of the High Court factors upon which the respondent contends the learned High Court judge could properly find that the appellant fled, within the meaning of s.10 of the Act. The appellant’s contention in this case, as mentioned above, is that there was no such material before the High Court upon which the learned High Court judge could have concluded that he did, in fact, flee.

This issue of what is meant by “fled” in s.10 of the Act of 2003 has been dealt with in several cases, but of relevance to this appeal is the case of MJELR v. Sliczynski, supra., in which I considered an appropriate approach to be adopted in assessing whether or not, where a sentence has been suspended, a person had “fled” an issuing state within the meaning of s.10 of the Act of 2003, with which analysis, Murray, C.J., in the same case, agreed.

In that case I set out all the factors which were before the learned High Court judge as furnished by the issuing judicial authority, as well as the subjective averments of the appellant as to the reasons why he left Poland. As to the material furnished either in the warrant, or pursuant to additional information sought, there was before the High Court judge in that case the following information:

1. The number of sentences in issue;
2. The fact that the appellant was sentenced in his presence in relation to the material sentences;

3. The fact that those latter sentences were suspended in accordance with Polish law and that those suspensions were subject to conditions, the conditions specified including that he maintain contact with the Probation Officer and remain subject to their supervision, reside at a particular address, and inform the Probation Officer of each change of residence, and in particular of any plan to travel abroad.

The evidence before the High Court in that case was also to the effect that the person sought to be surrendered, who was subject to the above sentences, as suspended, had breached the terms of the suspension by failing to give any notification to the Probation Officer, or any other appropriate person, of his intention to leave Poland and failed to provide each change of address, no change of address in Ireland having been furnished.
As to the norms or requirements to be applied to the information available to the High Court judge in determining whether a person sought to be surrendered, pursuant to the Act of 2003, had fled the issuing state, I stated:

“All of the factors germane to whether a person can be said to have fled must be taken into account. That includes the motivation of the person sought to be returned to the requesting Member State, which is almost inevitably likely to be a subjective motivation. So also the court must take into account other material factors, such as whether the sentence was suspended, and where the suspension of the sentence was subject to terms, whether those terms were known to the convicted person and whether those terms were complied with.
…

The court then must determine whether, objectively speaking, bearing in mind all of these factors, it can be reasonably concluded that the appellant “fled” within the meaning of the sub-section. If it were the case that the subjective motivation, as averred to on affidavit, had to be accepted as being conclusive of the question whether a person fled within the meaning of the section, it seems to me that this would always or almost always “trump” any information or material factor presented to the Court and upon which it could be objectively found that a person had fled the requesting state.”

In the present case, the information as to the sentence in question and the conditions of suspension were given in the following terms, as translated into English:

“By virtue of a sentence of District Court in Ostroda, Act No. II K1507/02 dated 21 November 2002, Dominik Slonski was convicted to one year of imprisonment. The punishment was conditionally suspended and a curator’s supervision was imposed on the convict. Then on 4 November 2005 the District Court in Pruszkow, Act No. D483/03, ordered execution of punishment of imprisonment against the convict. The convict did not appear at the custody to fulfil the penalty.
It was established that the convict left Poland and on 4/4/2005 he was detained at Dublin Airport while smuggling 500g of cocaine. He was convicted to seven years of deprivation of freedom for this offence. Now he has been serving the term of imprisonment in Mountjoy Prison in Ireland.”

On the basis of all the material presented, the following information was before the High Court:

(a) That on the 21st November, 2003 the appellant was convicted to one year imprisonment for the offence in question;
(b) That the punishment was suspended conditionally;

(c) That a “curator’s supervision” was imposed on the appellant;

(d) That on 4th November, 2005 execution of the punishment of imprisonment was ordered against the appellant.

There was no information before the learned High Court judge as to the conditions imposed, as to what constituted a “curator’s supervision”, as to what conditions attaching to his suspension were allegedly breached, or led to the lifting of that suspension, and in particular as to whether or not the fact that the appellant left Poland was a breach of the conditions attaching to the suspension, or if becoming involved in criminal activities, whether inside or outside Poland, constituted a breach of the same conditions or other conditions attaching to the suspension. It is unclear to me on what evidence the learned High Court judge based his finding of fact that the appellant’s leaving of Poland, “was a breach of the supervision condition”. Unlike the position in MJELR v Sliczynski, there was no information before the High Court that the terms of the suspension had been imposed in the presence of the appellant, such that would have permitted the High Court to conclude that he knew them, had not denied them, and appreciated that any breach of them would naturally lead to the suspension being lifted.
It would not appear that the judgments of this Court in the MJELR v. Sliczynski, supra. were brought to the attention of the learned High Court judge, possibly because of the timescale of their delivery. The Court is satisfied that had the judgments been brought to the attention of the learned High Court judge, he would have approached the assessment of the material before him on the basis of those judgments.

I am satisfied in the foregoing circumstances that there was wholly inadequate material before the learned High Court judge upon which he could properly reach the conclusion that the appellant was a person who came within the ambit of s.10 of the Act of 2003, as a person who fled Poland.

In the circumstances, the appellant cannot be surrendered pursuant to the provisions of s.16 of the Act of 2003, on the basis of the information presented to the High Court on this particular European arrest warrant. Having regard to this finding, is both unnecessary and inappropriate to deal with either of the two additional grounds raised on behalf of the appellant in the present appeal.

I would allow the appeal and set aside the order of the High Court directing the surrender of the appellant pursuant to s.16 of the European Arrest Warrant Act, 2003.

Minister for Justice, Equality and Law Reform v Rettinger [2010] IESC 45

Judgment delivered the 23rd day of July, 2010 by Denham J.
1. In this appeal the Court has been asked to consider rights under Article 3 of the European Convention on Human Rights, referred to in this judgment as the “ECHR”, and their effect on an application pursuant to a European Arrest Warrant for the surrender of a person to Poland to serve the balance of a prison sentence.

2. The Polish authorities issued a European Arrest Warrant seeking Robert Rettinger, the respondent/appellant, referred to in this judgment as “the appellant”, which was endorsed by the High Court for execution in this jurisdiction on the 10th day of June, 2009. The appellant was arrested on the 13th August, 2009, and has been remanded in custody, with consent to bail, ever since.

3. The surrender of the appellant to Poland is sought so that he may serve the balance of a two year sentence which was imposed for the offence of burglary.

4. The appellant has served 203 days in pre-trial detention in Poland. He has been in custody in Ireland since the 13th August, 2009.

5. There was a delay in hearing the case in the High Court. The case was listed for hearing on the 1st December, 2009, but on that morning the appellant’s solicitor applied successfully to come off record and a new legal team was appointed. Amended points of objection were served and the case was listed for hearing on the 13th April, 2010, when the matter proceeded. Judgment was delivered on the 7th May, 2010. On the 20th May, 2010, the High Court granted a certificate of leave to appeal to this Court.
Points of Law
6. Pursuant to section 16(12) of the European Arrest Warrant Act 2003, as amended, the High Court (Peart J.) certified the following two points of law as arising from this application:-

“(a) Where [an applicant] relies upon section 37(1)(a) of the European Arrest Warrant Act 2003 in order to prevent his surrender to a requesting State by reason of an apprehended breach of his rights under Article 3 of the European Convention on Human Rights and adduces evidence capable of establishing substantial grounds for believing that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 were he to be surrendered, does the onus of proof then shift back to [the Minister] to adduce evidence in order to dispel any doubts as to the treatment [the applicant] would face if surrendered?
(b) Where [an applicant] relies upon section 37(1)(a) of the European Arrest Warrant Act 2003 in order to prevent his surrender to a requesting State by reason of an apprehended breach of his rights under Article 3 of the European Convention on Human Rights, is [the applicant] required to prove that there is a probability that, if surrendered, he will suffer treatment contrary to Article 3, or is it sufficient for him to show that, on the balance of probabilities, there is a real risk that he will suffer such treatment?”

High Court
7. In his judgment, [2010] 1EHC 206, the learned High Court judge stated:-
“It is inevitable that a respondent seeking to establish to the necessary standard of proof that in the future his rights will be breached if surrendered has a more difficult probative task than a person complaining of what has already occurred. But that inevitability must not be allowed to lower the standard by which this Court must examine the question. The averments made by the respondent and the material he has referred the Court to are probably the best the respondent could do. But in my view neither the respondent’s own evidence nor the Orchowski findings are sufficient. The latter in particular speak to the position of that person and the conditions which he endured during his periods of imprisonment. It does not follow in my view that those conclusions can avail other persons who are sought for surrender to Poland.
This Court must be forward-looking in its considerations, and in that regard it is worth repeating that it is not known at this stage even which prison or other detention centre the respondent may be required to spend time if surrendered. Speculation as to what conditions he may have to experience in some prison somewhere in Poland, even if supported by the criticisms and shortcomings which have been identified in various reports and even cases before the European Court of Human Rights is insufficient to enable the respondent’s objection to surrender to succeed.”

Notice of Appeal
8. The appellant has appealed from the judgment of the learned High Court judge. The notice of appeal filed stated that the appeal would be grounded on the following grounds, being that the learned High Court judge erred in law or in fact or on a mixed question of law and question as follows:-
(i) in holding that the appellant had failed to establish substantial grounds that if surrendered to the Republic of Poland there is a real risk that he would suffer treatment constituting a breach of his rights under Article 3 of the European Convention on Human Rights;
(ii) in failing to recognise the gravity of the risk that the appellant would suffer treatment constituting a breach of his rights under Article 3 of the European Convention on Human Rights if surrendered to the Republic of Poland;

(iii) having established the existence of substantial grounds that, if surrendered to the Republic of Poland, there is a real risk the appellant would suffer treatment constituting a breach of his rights under Article 3 of the European Convention on Human Rights, in failing to require evidence to dispel the doubts raised by the appellant in that regard prior to making the order for the appellant’s surrender to the Republic of Poland;

(iv) in holding that, in order to rely upon section 37(1)(a) of the European Arrest Warrant Act 2003 as amended in order to prevent his surrender, the appellant must show that it is probable that, if surrendered, he would suffer treatment amounting to a breach of his rights under Article 3 of the European Convention on Human Rights, as distinct from establishing substantial grounds that, on the balance of probabilities, there is a real risk that he will suffer such treatment;

(v) by reason of the foregoing, in failing to hold that the appellant should not be surrendered to the Republic of Poland pursuant to section 37 of the European Arrest Warrant Act 2003 as amended.

Notice to Vary
9. The Minister for Justice, Equality and Law Reform, the applicant/respondent, referred to as “the Minister” in this judgment, filed a notice to vary. The single ground of the notice to vary is:-
“(i) That the learned trial judge erred in law and in fact in holding that there was no reason to doubt what the [appellant] had stated with regard to the prison conditions in which he was held or to consider that he had exaggerated same.”

Law
10. The Court was referred to national law, the ECHR, and cases of the European Court of Human Rights, referred to in this judgment as “the ECtHR”.
11. Section 37 of the European Arrest Warrant Act 2003 provides:-

“(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.”

12. The issues in this case arise out of the submission on behalf of the appellant that were he to be surrendered to Poland he would be subjected to inhuman and degrading treatment in prison.

13. Article 3 of the ECHR states that:-

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
14. In Soering v. UK (1989) 11 EHRR 439 the ECtHR described a test in a situation where an issue under Article 3 arises, at 391:-
“… the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.”
15. In Mamatkulov Askaron v. Turkey (No. 46827/99 and 46951/99), 4th February, 2005, the ECtHR restated the position at paragraph 71 as:-
“For an issue to be raised under Article 3, it must be established that at the time of their extradition there existed a real risk that the applicants would be subjected in Uzbekistan to treatment proscribed by Article 3.”
16. In Saadi v. Italy (No. 37201/06) judgment of 28th February, 2008, the Grand Chamber of the ECtHR considered previous case law on Article 3 of the ECHR. In an important and relevant judgment it set out principles applicable in cases involving the removal of a person from a State. These were set out at paragraphs 128-133 and may be summarised as follows:-
“(i) the Court takes as its basis all the material placed before it or, if necessary, material obtained of its own motion;
(ii) the Court’s examination of the existence of a real risk is necessarily rigorous;

(iii) it is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. Where such evidence is adduced, it is for the Government to dispel any doubts about it;

(iv) the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances;

(v) the Court has attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department;

(vi) the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3, and, where the sources available describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence;

(vii) in cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned;

(viii) if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court; accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive.”

17. In Orchowski v. Poland (No. 17885/04), 22nd October, 2009, an important relevant case, the ECtHR stated the following in relation to prisoners’ rights:-
“119. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).
As the Court has held on many occasions, 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 a 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. Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67-68, 74, ECHR 2001-III; Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).

120. Measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, the suffering and humiliation involved must not go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.

In the context of prisoners, the Court has already emphasised in previous cases that a detained person does not, by the mere fact of his incarceration, lose the protection of his rights guaranteed by the Convention. On the contrary, persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Under Article 3 the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured. (Valašinas, cited above, § 102; Kud³a v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).

121. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see among others Alver v. Estonia, no. 64812/01, 8 November 2005).

122. The extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevièius v. Lithuania, no. 53254/99, 7 April 2005).

In its previous cases where applicants had at their disposal less than 3 m² of personal space, the Court found that the overcrowding was so severe as to justify of itself a finding of a violation of Article 3 of the Convention (see, among many others, Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, § 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §47-49, 29 March 2007; Labzov v. Russia, no. 62208/00, § 44, 16 June 2005).

By contrast, in other cases where the overcrowding was not so severe as to raise in itself an issue under Article 3 of the Convention, the Court noted other aspects of physical conditions of detention as being relevant for its assessment of compliance with that provision. Such elements included, in particular, the availability of ventilation, access to natural light or air, adequacy of heating arrangements, compliance with basic sanitary requirements and the possibility of using the toilet in private. Thus, even in cases where a larger prison cell was at issue – measuring in the range of 3 to 4 m² per inmate – the Court found a violation of Article 3 since the space factor was coupled with the established lack of ventilation and lighting (see, for example, Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Ostrovar v. Moldova, no. 35207/03, § 89, 13 September 2005, and Peers v. Greece, no. 28524/95, §§ 70-72, ECHR 2001-III) or the lack of basic privacy in his or her everyday life (see, mutatis mutandis, Belevitskiy v. Russia, no. 72967/01, §§ 73-79, 1 March 2007; Valašinas, cited above, § 104; Khudoyorov, cited above, §§ 106 and 107; Novoselov v. Russia, no. 66460/01, §§ 32, 40-43, 2 June 2005).”

The ECtHR concluded that Mr Orchowski had been detained in conditions that were inhuman and degrading.
18. The ECtHR in Orchowski also addressed the issue of Poland’s failure to improve prison conditions. As the case is pertinent to this appeal an extensive section of the judgment is set out below. This judgment addressed the issue of a systemic problem in the prisons in Poland and it stated:-

“147. In this context, the Court observes that approximately 160 applications raising an issue under Article 3 of the Convention with respect to overcrowding and consequential inadequate living and sanitary conditions are currently pending before the Court. Ninety-five of these applications have already been communicated to the Polish Government.
Moreover, the seriousness and the structural nature of the overcrowding in Polish detention facilities have been acknowledged by the Constitutional Court in its judgment of 28 May 2008 and by all the State authorities involved in the proceedings before the Constitutional Court, namely the Prosecutor General, the Ombudsman and the Speaker of the Sejm, (see paragraph 85 above), and by the Government (see paragraph 146 above).

The statistical data referred to above taken together with the acknowledgements made by the Constitutional Court and the State authorities demonstrate that the violation of the applicant’s right under Article 3 of the Convention originated in a widespread problem arising out of the malfunctioning of the administration of the prison system insufficiently controlled by Polish legislation, which has affected, and may still affect in the future, an as yet unidentified, but potentially considerable number of persons on remand awaiting criminal proceedings or serving their prison sentences (see mutatis mutandis Broniowski v. Poland [GC], no. 31443/96, §§ 189, ECHR 2004-V).

The Court concludes that for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres revealed a structural problem consisting of “a practice that is incompatible with the Convention” (see mutatis mutandis Broniowski v. Poland, cited above, §§ 190-191, ECHR 2004-V; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 229-231, ECHR 2006-…; Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999-V with respect to the Italian length of proceedings cases).

148. In this connection, it is to be reiterated that, where the Court finds a violation, the respondent State has a legal obligation under Article 46 of the Convention not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. The respondent State remains free, subject to monitoring by the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII, and Broniowski v. Poland cited above, §§ 192).

149. The Court observes that the Constitutional Court in its judgment of 26 May 2008 obliged the State authorities to bring the situation concerning the overcrowding of detention facilities in Poland into compliance with the requirements of the Constitution, namely with the relevant provisions prohibiting, in absolute terms, torture and inhuman and degrading treatment. The Constitutional Court observed in particular, that apart from the indicated legislative amendments the authorities had to undertake a series of measures to reorganise the whole penitentiary system in Poland in order to, ultimately, eliminate the problem of overcrowding. It was also noted that, in parallel, a reform of criminal policy was desired with the aim of achieving a wider implementation of preventive measures other than deprivation of liberty.

150. In this connection, it must be observed that recently in the case of Kauczor v. Poland (see Kauczor v. Poland, no. 45219/06, § 58 et seq, 3 February 2009), the Court held, referring to the conclusions of the Committee of Ministers of the Council of Europe, that the excessive length of pre-trial detention in Poland revealed a structural problem consisting of a practice that was incompatible with Article 5 § 3 of the Convention. The Court observes that the solution of the problem of overcrowding of detention facilities in Poland is indissociably linked to the solution of the one identified in the Kauczor case.

151. The Court also notes that for many years the authorities appeared to ignore the existence of overcrowding and inadequate conditions of detention and, instead, chose to legitimise the problem on the basis of a domestic law which was ultimately declared unconstitutional (see paragraph 85 above). As was observed by the Polish Constitutional Court in its judgment of 26 May 2008, the flawed interpretation of the relevant provision, which through its imprecision allowed for an indefinite and arbitrary placement of detainees in cells below the statutory size of 3 m² per person, sanctioned the permanent state of overcrowding in Polish detention facilities.

In the Court’s opinion, such practice undermined the rule of law and was contrary to the requirements of special diligence owed by the authorities to persons in a vulnerable position such as those deprived of liberty.

152. On the other hand, the Court takes note of the fact that the respondent State has recently taken certain general steps to remedy the structural problems related to overcrowding and the resulting, inadequate conditions of detention (see paragraphs 89-91 above). By virtue of Article 46 of the Convention, it will be for the Committee of Ministers to evaluate the general measures adopted by Poland and their implementation as far as the supervision of the Court’s judgment is concerned. However, the Court cannot but welcome these developments and considers that they may ultimately contribute to reducing the number of persons detained in Polish prisons and remand centres, as well as to the improvement of the overall living and sanitary conditions in these facilities. They cannot, however, operate with retroactive effect so as to remedy past violations. However, as already noted by the Constitutional Court (see paragraph 85 above), in view of the extent of the systemic problem at issue, consistent and long-term efforts, such as the adoption of further measures, must continue in order to achieve compliance with Article 3 of the Convention.

153. The Court is aware of the fact that solving the systemic problem of overcrowding in Poland may necessitate the mobilisation of significant financial resources. However, it must be observed that lack of resources cannot in principle justify prison conditions which are so poor as to reach the threshold of treatment contrary to Article 3 of the Convention (see among others Nazarenko v. Ukraine, no. 39483/98, § 144, 29 April 2003) and that it is incumbent on the respondent Government to organise its penitentiary system in such a way that ensures respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006). If the State is unable to ensure that prison conditions comply with the requirements of Article 3 of the Convention, it must abandon its strict penal policy in order to reduce the number of incarcerated persons or put in place a system of alternative means of punishment.

154. Lastly, the Court takes note of the civil courts’ emerging practice which allows prisoners to claim damages in respect of prison conditions. In this connection, the Court would like to emphasise the importance of the proper application by civil courts of the principles which had been set out in the judgment of the Polish Supreme Court of 26 February 2007.

The Court observes, nonetheless, that a civil action under Article 24 of the Civil Code, in conjunction with Article 445 of this code, may, in principle, due to its compensatory nature, be of value only to persons who are no longer detained in overcrowded cells in conditions not complying with Article 3 requirements (see paragraphs 108-109 above).

The Court would in any event, observe that a ruling of a civil court cannot have any impact on general prison conditions because it cannot address the root cause of the problem. For that reason, the Court would encourage the State to develop an efficient system of complaints to the authorities supervising detention facilities, in particular a penitentiary judge and the administration of these facilities which would be able to react more speedily than courts and to order, when necessary, a detainee’s long-term transfer to Convention compatible conditions.”

Submissions
19. It was submitted on behalf of the appellant that:-
(a) In carrying out its duty of rigorous scrutiny, the trial Court can, if necessary, obtain its own material in order to assess the degree of future risk.
(b) It is in principle for an applicant to adduce evidence capable of proving that there are substantial grounds for believing that if extradited he would be exposed to a real risk of being subjected to treatment contrary to Article 3, where such evidence is adduced, it is for the Government to dispel any doubts about it.

(c) Where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the protection of Article 3 of the ECHR enters into play when the applicant establishes that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned.

Counsel for the appellant submitted that on the basis of (b) above, the answer to the first certified question is “yes”.

Applying the facts of the case it was submitted on behalf of the appellant that:-
(a) If surrendered to Poland the appellant will be detained in a Polish prison.
(b) Poland does not dispute that, during his last period of detention, the appellant suffered conditions in Szczelce Opolskie, in Slakas, that appear to amount to inhuman or degrading treatment.

(c) It is clear from the Orchowski judgment, and is not disputed, that the systemic failings in Poland’s prison system are such that ‘consistent and long-term’ reforms are needed in order for compliance with Article 3 of the ECHR to be achieved and that, until such time as there is compliance, an unknown, but potentially considerable number of persons, are at risk from the malfunctioning of the system.

(d) No assurance has been given by the Polish authorities that the appellant will not be detained in conditions that are inhuman or degrading.

(e) No evidence has been tendered by or on behalf of the Polish authorities to show that conditions in its prison system have improved following the findings of the European Court of Human Rights in Orchowski and Sikorski.

(f) It is submitted that, absent clear proof of a substantial amelioration in the prison conditions in Poland, the appellant has discharged the onus of demonstrating that he will be at risk of suffering inhuman or degrading treatment if returned to Poland to serve the remainder of the sentence imposed upon him. He has established substantial grounds for believing that there is a real risk that he will be detained in conditions that amount to inhuman or degrading treatment in Poland. In line with Stevens J’s reasoning in the US Supreme Court judgment in Cardozo Fonesca, supra, that a ‘one in ten chance’ constitutes a real risk, by reference to the facts subtending this application, there are substantial grounds for believing that the respondent is at such risk of inhuman or degrading treatment in Poland’s prison system.

In the alternative, it was submitted:-
(a) The appellant, as a member of a social group, i.e. prisoners, in respect of which there are serious reasons to believe in the existence of a practice which exposes the group to ill-treatment, i.e. the systemic failing in Poland’s prisons, the protection of Article 3 of the ECHR enters into play.
(b) In such circumstances, it is for the Polish authorities to give an assurance that the appellant will not be subjected to inhuman or degrading treatment, and no such assurance has been forthcoming.

Or,
(c) The appellant has adduced evidence capable of proving that there are substantial grounds for believing that if extradited he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the ECHR, such that it is for the Minister to dispel any doubts about it.
(d) At the hearing before the trial court the Minister adduced no evidence from any source to dispel these doubts, notwithstanding that the Polish authorities had been contacted regarding this application.

(e) Had assurances been offered by the Polish authorities in respect of the appellant’s future detention (which is not the case, despite the opportunity to do so), the trial Court would have been under a duty to scrutinise such assurances carefully and satisfy itself that they would be met: Chahal v. United Kingdom, (No. 22414/93), 15th November, 1996, paragraph 92 and 105.

Thus counsel on behalf of the appellant submitted that the appeal should be allowed and that the order sought by the Minister authorising the appellant’s surrender to Poland should be refused.
20. Counsel for the Minister submitted that there was no evidence that the appellant’s rights would be breached if he is surrendered to Poland. That such evidence as has been adduced is not sufficient to displace the onus of proof to the executing authority. The executing state may assume that the issuing state will respect the human rights of the person sought. The European arrest warrant procedure is based on mutual recognition of judicial decisions and cooperation and on a high level of confidence between member states. It would only be, it was submitted, in a particular case, if it was established that surrender would lead to a denial of fundamental or human rights, that it should be refused. It was submitted that the appellant had failed to so establish in the High Court as a matter of fact.
Decision
21. The first issue to be determined on this appeal is the appropriate test to be applied by the Court in the circumstances.

22. Part 3 of the European Arrest Warrant Act 2003, as amended, provides situations where surrender is prohibited. Section 37 states that a person shall not be surrendered under this Act if his surrender would be incompatible with the State’s obligations under the ECHR or its protocols. Thus national law mandates that a person not be surrendered if his surrender would be incompatible with the State’s obligations under the ECHR or its protocols. Article 3 of the ECHR provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Consequently, a court hearing an application to surrender is required to consider and apply this mandate. A court is required to consider the law of, and arising from, Article 3 of the ECHR, and relevant case law of the ECtHR, within the context of the Constitution and the law.

23. In deciding on the appropriate test to be applied by the Court, in relation to the issue arising on Article 3, assistance may be obtained from consideration of cases decided by the ECtHR.

24. Thus in Soering v. UK (1989) 11 EHRR 439, the ECtHR referred to the responsibility of a state under the Convention (and relevant to this case) where substantial grounds have been shown for believing that the person concerned, if surrendered, faces a real risk of being subjected to inhuman or degrading treatment or punishment in the requesting state.

25. This concept of “a real risk” is referred to in other case law of the ECtHR.

26. The matter was addressed expressly in Saadi v. Italy, as set out earlier in this judgment. I would adopt and apply the principles stated in Saadi.
Principles
27. Thus I would apply the following principles:-

(i) A court should consider all the material before it, and if necessary material obtained of its own motion.
(ii) A court should examine whether there is a real risk, in a rigorous examination.

(iii) The burden rests upon an applicant, such as the appellant in this case, to adduce 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.

(iv) 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.

(v) The court should examine the foreseeable consequences of sending a person to the requesting State.

(vi) 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.

(vii) The mere possibility of ill treatment is not sufficient to establish an applicant’s case.

(viii) The relevant time to consider the conditions in the requesting state is at the time of the hearing in the High Court. Although, of course, on an appeal to this Court an application could be made, under the rules of court, seeking to admit additional evidence, if necessary.

28. The above test should be applied in an application such as this.
29. It does not appear that the learned trial judge applied such a test. In all the circumstances, I would remit the matter to the High Court so that the application may be determined in accordance with this test.

30. (i) In considering the application, the High Court should consider all the material before it and, if necessary, material sought by its own motion.

(ii) The High court should examine whether there is a real risk, in a rigorous examination.

(iii) The burden rests upon the appellant to adduce evidence capable of proving that there are substantial grounds for believing that if he is returned to Poland he would be exposed to real risk of being subjected to treatment contrary to Article 3 of the ECHR. However, the requesting State may present evidence to dispel doubts.

31. In this case such evidence includes, at this time:-

(a) The affidavit evidence of the appellant. In his supplemental affidavit the appellant deposed:

“If I am surrendered to Poland, I could be sent to any prison in the country in order to complete my sentence. As a consequence, I believe that I am at a real risk of being detained in conditions that are inhuman or degrading because of overcrowding, lack of proper sanitation, lack of privacy and the practice of keeping prisoners locked in their cell for 23 hours a day.
When I was last detained in Poland I was in Szczelce Opolskie in Slask, about 150 kilometres from Krakow. The conditions were very harsh. There were 6 people in my cell which was designed for a far smaller number. There was very little room in the cell. There was an open toilet in the cell with just a curtain. There was no privacy. It was demeaning and disgusting. We were only allowed out of the cell for one hour a day. We ate our meals in our cells. We were only permitted to shower once a week, and then showered together with a group of inmates numbering in total between 12 and 24 persons. I believe that almost all inmates suffered mental problems, and required medical assistance either during their time in detention or shortly afterwards, because of the conditions of extreme overcrowding and lack of proper sanitation and exercise. It was not really possible to complain about the conditions in prison. If you did complain, you faced physical punishment from the prison officers and could be put in isolation. People were afraid to complain in prison, I cannot face the prospect of being returned to a prison in Poland because of the appalling conditions.”

(b) Two letters from the District Court judge in Krakow are in the papers before the Court.
(c) The Orchowski case. The Orchowski case is relevant to the appellant’s case. It is clear that for many years, from 2000 until at least mid-2008, overcrowding in Polish prisons and remand centres was incompatible with the ECHR – as found by the Polish Constitutional Court and the ECtHR. Further, by its judgment the Polish Constitutional Court has obliged Poland to bring the prison system into compliance with the Constitution. The ECtHR has welcomed the fact that Poland has taken general steps to remedy the problems. However, in view of the extent of the systemic problem, the ECtHR noted that consistent and long term efforts must continue to achieve compliance with Article 3. Having referred to the issue of resources, the ECtHR stated that, if Poland was unable to ensure that prison conditions comply with the requirements of Article 3 of the ECHR it must abandon its strict penal policy in order to reduce the numbers imprisoned or put in place an alternative means of punishment.

(d) There is no adequate evidence of the current situation in relation to the process of remedying the problems in the prisons.

(e) International Documents.

The Court may consider relevant international documents. In this case, for example, the U.S. Department of State, 2009 Human Rights Report: Poland, (11th March, 2010) was produced. Prison and Detention Centre conditions were considered. It was stated that prison and detention centre conditions remained poor and did not meet international standards. It was stated, for example, that under Poland’s criminal code, the minimum cell size is three square metres (32 square feet); however, in practice this standard was often not met.

It may well be that more up to date documents may be furnished to the court.

(f) In addition, further evidence may be before the court.
Notice to Vary
32. The Notice to Vary is relevant to the affidavit of the appellant. The Minister filed a Notice to Vary with a single ground, namely, that the learned trial judge erred in law or fact in holding that there was no reason to doubt what the appellant had stated with regard to the prison conditions in which he was held or to consider that he had exaggerated same.

I would dismiss the Notice to Vary. The appellant deposed of his experiences when in prison in Poland. He was not cross-examined. Nor was any adequate evidence put before the Court by the requesting state of the conditions of its prisons. In all the circumstances it was open to the learned trial judge to make this determination. The weight which a court would give to such a determination depends on all the circumstances of the case.
Time spent in custody
33. From the papers before the Court it appears that the appellant is being sought to be surrendered to Poland to serve the balance of a two year sentence for burglary. He was in pre-trial detention in Poland for 203 days. In addition, he has been in custody in Ireland since last August.

I would request counsel to address this situation with a view to the matter being considered by a court.
Conclusion
34. I conclude that the appropriate test to be applied is as stated in this judgment. I would remit the matter to the learned trial judge to apply this test.

In addition, I wish counsel to address the issue of the length of time which the appellant has been in custody in Poland and Ireland.

 

JUDGMENT of Mr. Justice Fennelly delivered the 23rd day of July 2010.

1. The appellant complains that, if he is surrendered to Poland to complete a prison sentence, he faces a real risk that he will be subjected to inhuman and degrading conditions, prohibited by Article 3 of the European Convention on Human Rights (hereinafter “the Convention”). The European Court of Human Rights has condemned overcrowding in Polish prisons. The appeal raises, specifically in the case of Article 3 complaints, questions regarding the burden and standard of proof to be applied by the High Court when considering applications for surrender on foot of European Arrest Warrants.

. On 23rd September, 2008 a Regional Judge at the District Court at Krakow issued a European Arrest Warrant seeking the surrender of the appellant to Poland for the purpose of serving the balance of a sentence of two years imprisonment which had been imposed on him on his conviction for burglary by the Regional Court of Krakow-Krowodrza on 2nd August 2007.

3. The warrant was duly endorsed by the High Court for execution on the 10th June, 2009. The appellant was arrested on the 13th August, 2009 and brought before the High Court. He has objected to his surrender and has remained in custody, with consent to bail, since that date.

4. The Minister’s application was originally listed for hearing before the High Court on the 1st December, 2009. The appellant changed his solicitor and served amended points of objection. The application was listed for hearing on the 13th April, 2010. Judgment was delivered by Peart J on the 7th May.

5. Although other issues were originally raised in the High Court the challenge by the appellant to his surrender is, at this stage, limited to what he alleges are the overcrowded and inhumane conditions in Polish prisons and was set out in his Additional Points of Objection as follows:

“… the surrender of the Respondent to the Republic of Poland is prohibited by section 37 of the European Arrest Warrant Act 2003 because of the inhuman and degrading conditions, including systemic overcrowding, in Poland’s prisons which are such that:

(a) there are substantial grounds for believing that the Respondent is at real risk of exposure to inhuman or degrading treatment, and overcrowding, if returned to Poland such that his surrender would violate the Applicant’s duties under section 37(1)(a) of the European Arrest Warrant Act 2003, Articles 3 and or 8 of the European Convention on Human Rights, and section 3 of the European Convention on Human Rights Act 2003;
(b) the risk of the Respondent being exposed to inhuman or degrading treatment in Poland’s prisons is such that his surrender would be in breach of the Applicant’s duties and the Respondent’s rights under the Constitution and therefore in breach of section 37(1)(b) of the European Arrest Warrant Act 2003;

(c) there are reasonable grounds for believing that were the Respondent to be surrendered to Poland that he would be subjected to inhuman or degrading treatment, such that his surrender would be in breach of section 37(1)(c) of the European Arrest Warrant Act 2003.

The Respondent shall rely inter alia on the recent assessment by the European Court of Human Rights of the systemic overcrowding in Poland’s prisons in its judgment in Orchowski v. Poland (Application Number 17885/04, 22nd October, 2009).”
6. In his first affidavit, the appellant advanced general complaints that his surrender to Poland was prohibited by section 37 of the European Arrest Warrant Act, 2003 and by Article 40.3.2 of the Constitution. He referred to a Human Rights Report for the year 2008 from the US Department of State to the effect that “conditions in prison and detention centres remained generally poor. Overcrowding and inadequate medical treatment were among the main problems.”
7. He also referred to a report of the year 2009 said to be from Greifswald University and to have found “Polish prisons conditions to be the worst in Europe”. No such report has, however, ever been produced. The appellant made no reference, in that affidavit, to his own experience in Polish prisons, in pre-trial detention or otherwise.

8. The appellant expanded on his complaints in a second affidavit. He referred to the decision of the European Court of Human Rights in Orchowski v. Poland condemning Polish prison conditions. His affidavit contains the following specific allegations:

“(a) If I am surrendered to Poland, I could be sent to any prison in the country in order to complete my sentence. As a consequence, I believe that I am at a real risk of being detained in conditions that are inhuman or degrading because of overcrowding, lack of proper sanitation, lack of privacy and the practice of keeping prisoners locked in their cell for 23 hours a day.
(b) When I was last detained in Poland I was in Szczelce Opolskie in Slask, about 150 km from Kraków. The conditions were very harsh. There were 6 people in my cell which was designed for a far smaller number. There was very little room in the cell. There was an open toilet in the cell with just a curtain. There was no privacy. It was demeaning and disgusting. We were only allowed out of the cell for one hour a day. We get our means in our cells. We were only permitted to shower once a week, and then showered together with a group of inmates numbering in total between 12 and 24 persons. I believe that almost all inmates suffer mental problems, and required medical assistance either during their time in detention or shortly afterwards, because of the conditions of extreme overcrowding and lack of proper sanitation and exercise. It was not really possible to complain about the conditions in prison. If you did complain, you faced physical punishment from the prison officers and could be put in isolation. People were afraid to complain in prison. I cannot face the prospect of being returned to a prison in Poland because of the appalling conditions.”

9. While the Minister filed no replying affidavit in the High Court, and counsel for the appellant argued, therefore, that his evidence should be treated as uncontradicted, Peart J admitted into evidence two letters from a District Court Judge in Kraków. In a letter of 22nd March 2010, that judge explained that a person condemned to prison should be held “in prison which is located closest to his permanent place of residence”. He said that there were three prisons located in Kraków and another three within less than 50 km. Since the appellant had a permanent place of residence in Kraków, he should be held in one of these.” He added, however, that “to avoid overcrowding that person can be transferred to a prison located further” away. Such a decision, however, is made by the head of a prison and is outside the competence of a Polish court. In a second letter of 9th April 2010, the judge referred to the decision of the European Court of Human Rights (Orchowski v Poland), saying that it refers to overcrowding in prisons located in western or north-western Poland and that the appellant, if surrendered, would be held a in prison located in southern or south-eastern Poland. He concluded: “Many of [the] detention centres or prisons in this part of the country have been renovated in the last few years and the living conditions have considerably improved.” Presumably these letters were received in evidence pursuant to section 20 of the Act of 2003, as explained by this Court in Minister for Justice, Equality and Law Reform v Sliczynski (Supreme Court unreported 19th December 2008 [2008] IESC 73).
10. While Peart J saw no reason to cast doubt on the evidence of the appellant, he thought it another matter altogether for him to reach a conclusion which would mean that, until such time as prison conditions had improved in Poland, no person could be surrendered on a European Arrest Warrant to that State. In his view, the evidence “could not be sufficient…… to establish to the required standard that if surrendered to Poland now there is a real risk that his Article 3 rights would be breached, and therefore that his surrender is incompatible with this states obligations under Article 3 of the Convention.” He noted that the prison to which the appellant would be sent was not known and considered that speculation as to the conditions he might experience was insufficient to enable his objection to surrender to succeed. Having rejected a number of other points of objection, which are no longer relevant, he made the order for surrender.

11. The standard to be applied in cases raising Article 3 complaints was a live issue in the High Court. Peart J acceded to an application that he certify, pursuant to section 16(12) of the Act of 2003, as amended by section 12 of the Criminal Justice (Miscellaneous Provisions) Act 2009, that his decision “involve[d] 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 Supreme Court.” The following are the certified points:

“(a) Where a respondent relies upon section 37(1)(a) of the European Arrest Warrant Act 2003 in order to prevent his surrender to a requesting State by reason of an apprehended breach of his rights under Article 3 of the European Convention on Human Rights and adduces evidence capable of establishing substantial grounds for believing that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 were he to be surrendered, does the onus of proof then shift back to the applicant to adduce evidence in order to dispel any doubts as to the treatment the respondent would face if surrendered?
(b) Where a respondent relies upon section 37(1)(a) of the European Arrest Warrant Act 2003 in order to prevent his surrender to a requesting State by reason of an apprehended breach of his rights under Article 3 of the European Convention on Human Rights, is the respondent required to prove that there is a probability that, if surrendered, he will suffer treatment contrary to Article 3, or is it sufficient for him to show that, on the balance of probabilities, there is a real risk that he will suffer such treatment?

12. The grounds of appeal filed on behalf of the appellant replicate the certified points. I have found it convenient to refer to the latter as effectively encompassing the grounds of appeal. In substance this Court is asked to rule on the burden and standard of proof which the High Court should apply when considering an objection to surrender based on a complaint, pursuant to section 37 of the Act of 2003, of apprehended exposure to inhuman or degrading treatment in the issuing Member State. The Minister has filed a notice to vary challenging the finding of Peart J that he had no reason to doubt the appellant’s affidavit evidence regarding prison conditions in Poland.
13. The legal submissions of the appellant, presented by Mr. Anthony Collins, Senior Counsel, fell under two main headings. The first, based on two decisions of the European Court of Human Rights in particular, (Soering v. UK (1989) 11 EHRR 439; Saadi v. Italy Application No. 37201/06, 28th February, 2008) relates to the standard of proof required of a respondent to an application for surrender under the Act of 2003 who complains that, if surrendered, there is a prospect that he will be subjected to treatment prohibited by Article 3 of the Convention. Such a respondent, Mr. Collins submitted, would be entitled to ask the court to prohibit his surrender if he established that there were substantial grounds for believing that he would face a real risk, if surrendered, of being subjected to torture (which is not alleged in this case) or to inhuman or degrading treatment or punishment in the issuing State. Secondly, Mr. Collins relied on the fact that, in its decision in Orchowski v. Poland (Application Number 17885/04, 22nd October, 2009), the European Court of Human Rights condemned conditions, specifically of overcrowding, in Polish prisons as amounting to inhuman and degrading treatment incompatible with Article 3 of the Convention. This decision, it was argued, was a “pilot judgment” of the court in a context where there were some 160 applications pending before the Strasbourg Court complaining of the systemic failure of Poland’s prison system to comply with Article 3 of the Convention. When the court of the executing Member State comes to apply the requisite standard of proof to the facts of an individual case, it was submitted that evidence of past ill-treatment or persecution is relevant as an indication of what is likely in the future. The Court should, in particular, have regard to the failure of the Polish authorities to avail of the opportunity to respond to the complaints made by the appellant by filing an affidavit in reply to his specific allegations.

14. The Minister, as respondent on the appeal, submits that the burden of proof was on the appellant to produce sufficient cogent evidence that, if surrendered, he was likely to be subjected to inhuman or degrading treatment. He describes this as a “heavy onus”. The Minister cites a number of decisions of this Court in support of these contentions. They are: Minister for Justice, Equality and Law Reform v Stankiewicz ([2009] IESC 79, unreported, Supreme Court, 1st December, 2009); Minister for Justice, Equality and Law Reform v Stapleton [2008] 1 IR 669; Minister for Justice, Equality and Law Reform v Sliczynski (Supreme Court unreported 19th December 2008 [2008] IESC 73); Attorney General v Park (Supreme Court unreported 6th December 2004). The Minister also cites the decision of Peart J of 27th March 2007 in Minister for Justice, Equality and Law Reform v Busjeva [2007] IESC 341, where the respondent raised complaints concerning prison conditions in Lithuania. According to the Minister, the High Court there held that clear and cogent evidence of same would be required.

15. Section 37 of the Act of 2003 prohibits the surrender of a person who is able to bring himself within its provisions. The section allows any provision of the Convention to be invoked by a person resisting surrender, but makes special provision for complaints of risk of exposure to inhuman or degrading treatment. The section provides:

(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.

16. Save for the omission of any express reference to “punishment,” Section 37(1)(c)(iii)(II) is based on the wording of Article 3 of the Convention, which provides that:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A court is obliged to refuse an application for the surrender on foot of a European Arrest Warrant of a person to another Member State of the European Union if “there are reasonable grounds for believing that” the person sought would be subjected to “inhuman or degrading treatment.” It will be necessary to return to the significance of the use of the formulation, “would be.”
17. The Court is invited, in the present appeal, to consider for the first time the standard of proof which it and consequently the High Court must apply in European Arrest Warrant cases when a person facing surrender complains of the danger of being subjected, if surrendered, to inhuman or degrading treatment in the issuing Member State.

18. I do not accept the contention advanced on behalf the Minister that the cases cited at paragraph 14 provide the answer. Of those cases only Busjeva concerned an objection based on evidence of risk of exposure to such treatment. Stankiewicz raised the question whether the respondent had “fled” the issuing Member State (a matter considered in Minister for Justice, Equality and Law Reform v Tobin [2008] 4 IR 42). Stapleton was a case of a long-delayed prosecution, where the question was whether there would be a fair trial in the issuing Member State; Brennan concerned an alleged difference in the sentencing principles of the respective Member States; Park was a case under the Extradition Act, 1965; insofar as any issue of burden of proof was considered, the Court held that the procedure was sui generis and inquisitorial. In Busjeva, Peart J held that “the respondent would have to show a real risk that she would suffer inhuman and degrading treatment or punishment if surrendered,” but that “clear and cogent evidence must be established…” Thus, Busjeva is the only authority touching on a complaint of risk of exposure to ill-treatment contrary to Article 3 of the Convention.

19. The High Court and this Court on appeal has been invited by the appellant to prohibit his surrender pursuant to section 37 of the Act of 2003. The High Court may not make an order for surrender which would “be incompatible with the State’s obligations…under the Convention…” More specifically and though the section does not expressly refer to the Convention from which the words are taken, it must not take place if “there are reasonable grounds for believing that… were the person to be surrendered to the issuing state…… he or she would be tortured or subjected to other inhuman or degrading treatment.” The Oireachtas here gives precise statutory effect to part of the wording of Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Oireachtas here legislated so as to give effect to the objectives of the Convention. An Irish Court must not surrender to another Member State a person who can show that there are reasonable grounds for believing that he will be subjected to inhuman or degrading treatment. The section requires no more than that there be reasonable grounds. It does not require proof on the balance of probability.
20. The courts are obliged by section 2 of the European Convention on Human Rights Act, 2003 to interpret the provisions of the Act of 2003 “so far as is possible, subject to the rules of law relating to such interpretation and application…… in a manner compatible with the State’s obligations under the Convention provisions.” Even without that provision, the legislative choice of wording taken directly from Article 3 would constitute a strong indicator of an intention to give effect to the interpretation adopted by the European Court of Human Rights.

21. The Convention and Strasbourg case-law recognise the legitimacy of extradition and deportation provisions in national law (Article 5(1)(f) of the Convention; Soering, cited above, paragraph 85). Nonetheless, a state’s responsibility under the Convention may be engaged when it is deciding to deport or to extradite a person to another country where the person’s Convention rights are at risk. In Soering, the Court expressed the matter as follows:

“… the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3…, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.”(paragraph 91)
In Saadi, the Court added that “in such a case Article 3 implies an obligation not to deport the person in question to that country.”(paragraph 125).
22. In addition, where Article 3 is in fact engaged, it has to be recognised that, in accordance with the consistent case-law, the prohibition of all inhuman or degrading treatment, not merely torture, is absolute. It is not subject to any proportionality or balancing test. In Saadi, the United Kingdom made an unsuccessful attempt as intervener to persuade the Court to alter or clarify its approach in cases concerning a threat from international terrorism. In such cases, it submitted that stronger evidence should have to be adduced to prove the existence of a risk of ill-treatment in the receiving country (see paragraphs 117 to 123). The Court ruled at paragraph 127:

“Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation……” (See also Soering, paragraph 88).
23. The Court, while accepting that it could not “underestimate the scale of the danger of terrorism today and the threat it presents to the community, reiterated that that fact “must not, however, call into question the absolute nature of Article 3.” (paragraph 137). It rejected the argument of the United Kingdom Government, stating:
“Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment.”
24. The inevitable consequence of the principle of absoluteness is that 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. This does not mean that there is any underlying conflict between the Convention and the Framework Decision. As is stated in recital 10, “[t]he mechanism of the European arrest warrant is based on a high level of confidence between member states.” The normal presumption is, as I said in my judgment in Stapleton, cited above at page 689, the courts, “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 rights and fundamental freedoms.’” The amended version of Article 6 now in force does not affect this principle. Recital 13, however, declares 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.”
25. Furthermore, Article 1.3 provides:
“This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and legal principles as enshrined in Article 6 of the Treaty on European Union.”
26. It is fair to note that Peart J did not question the right of the appellant to resist his surrender to Poland provided he could establish that “there is a real risk that his Article 3 rights would be breached, and therefore that his surrender is incompatible with this state’s obligations under Article 3 of the Convention.” He did not, however, accept that the appellant had established this proposition “to the required standard.” It is to the question of the appropriate standard that the two certified questions are addressed. The first question asks whether the onus of proof shifts back to the Minister once the respondent to the application “adduces evidence capable of establishing substantial grounds” for his complaint. The second asks whether the burden of proof required him to show, as a matter of probability, that he would (meaning “would probably”) suffer treatment prohibited by Article 3 or whether it would be sufficient for him to show, also as a matter of probability, that “there is a real risk that he will suffer such treatment.”
27. A partial answer to these questions can be found in the very wording of section 37(1)(c) of the Act of 2003. According to the section, it is sufficient to establish that “there are reasonable grounds for believing that” the person would be “subjected to ……inhuman or degrading treatment.” The European Court in Soering spoke of “substantial grounds for believing that the person concerned, if extradited, would face a real risk of being subjected to torture or to inhuman or degrading treatment…” Each test focuses, firstly, on the quality of the evidence or “grounds” and, secondly, on the level of risk. In practice, the two elements are closely connected and will, in many cases, merge into a single test. The subject-matter of the enquiry is the level of danger to which the person is exposed. There is no discernible difference between “reasonable grounds” and “substantial grounds.” It is equally clear that 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.” The 13th recital to the Framework Decision speaks of “serious risk;” the term “real risk” is consistently used by the European Court in its case-law, including Soering and Saadi. It is appropriate to the seriousness of the subject matter. It would be absurd to require a person threatened with expulsion to a state where he may be exposed to inhuman or degrading treatment, not to mention torture, to prove that he would probably suffer such treatment. It must be sufficient to establish “real risk.”

28. The European Court expressly dealt with this issue as part of its reasons for rejecting the proposals of the United Kingdom Government in Saadi that it should modify its case-law. It said at paragraph 140:

“The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3…”
29. The appellant relies also on a decision of the United States Supreme Court in a refugee case, Immigration and Naturalisation Service v Cardozo Fonesca 480 U.S. 421, dealing with a claim “of well-founded fear of persecution.” The court adopted a test of “reasonable possibility” of persecution. The Court cited a test established by its earlier decisions, namely that:
“so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.”
But that case was concerned with the interpretation of the US Immigration and Nationality Act, which distinguished between a “clear probability” and a “well-founded fear” test. A standard or “reasonable possibility” is different from and apparently lower than “real risk,” which is the consistent requirement of the European Court of Human Rights and, therefore, preferable.
30. The conclusions I have reached in paragraph 24 above provide a clear answer to the second of the questions certified by the High Court. It was not necessary for the appellant to prove in the High Court that he would suffer inhuman or degrading treatment if surrendered to Poland. It was enough for him to establish reasonable or substantial grounds for believing that there would be a real risk of such treatment.

31. The task of this court on the present appeal is to decide whether the High Court applied the correct standard in assessing the evidence before it. The European Court, in Saadi, said that it would “take as its basis all the material placed before it or, if necessary, material obtained propriu motu” and that “examination of the existence of a real risk must necessarily be a rigorous one.” (paragraph 128). It is, however, the ensuing paragraph which bears most directly on the question now before this Court:

“It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to article 3 ………. Where such evidence is adduced, it is for the Government to dispel any doubts about it.”
32. The first of the certified questions closely follows the language of this passage. I do not think that there is any particular mystery about it. In particular, I do not believe that the passage which I have quoted from Saadi establishes some principle about the shifting of the burden of proof different from what would happen in the ordinary way in an Irish court. The last sentence of the paragraph is, admittedly, open to misunderstanding. It suggests that, where “such evidence is adduced” it will be a matter for the Government “to dispel any doubts about it.” The evidence which can give rise to such a requirement is, however, earlier defined as the evidence showing “substantial grounds for believing” that there is a “real risk”. The Court has already stated, at paragraph 125, quoted at paragraph 21 above, that in that situation the person must not be deported. In other words, any requirement that the Government “dispel doubts” if that is to be described as a shifting of the burden of proof only arises when the person opposing surrender has discharged the primary burden which rests on him or her by producing evidence of sufficient substance that, if uncontradicted, would oblige the court to refuse to surrender him. In this context, the notion of “substance” includes credibility. In a particular case, a judge may regard the silence and failure to respond to specific allegations as significant and may persuade him of the truth of the allegations, but that is a question of assessment of the plausibility and weight of the evidence. Evidence of the mere possibility of ill-treatment is not enough; evidence should be related to the specific situation of the person opposing surrender. In Saadi, the European Court dealing with the admittedly different situation of an allegation of prevalent torture if the applicant were to be deported to Tunisia said:
“At the same time, it has been held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 ………………and that, where the sources available to it describe the general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence.”
33. It is neither possible nor appropriate to prescribe too narrowly the way in which a judge should assess the evidence, whose quality necessarily varies enormously. The credibility of any evidence will depend on all the circumstances of the individual case. In the final analysis, it is a matter for the judge to decide whether the necessary substantial grounds have been established for believing that there is a real risk of ill-treatment contrary to Article 3. He does not have to be convinced that ill-treatment would probably occur. There is no shifting of the burden of proof in the absence of evidence of substantial grounds. The judge may, however, regard the failure of the Minister to respond to evidence produced as significant. In that situation, he may reasonably expect the Minister to produce some evidence.
34. Before turning to the specific allegations in the present case, it should be noted that not all allegations of ill-treatment would be regarded as amounting to “inhuman or degrading treatment” contrary to Article 3: a certain minimum level must be reached. It has to be borne in mind that the appellant is a person who, if surrendered to Poland, will have to serve the balance of a sentence of imprisonment lawfully imposed on him. The European Court explained in Saadi at paragraphs 134 and 135 that:

“According to the Court’s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. 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 ………………
In order for a punishment or treatment associated with it to be “inhuman” or “ degrading,” the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment …”

35. An additional point of general importance is that the time for assessment of the risk of subjection to ill-treatment contrary to Article 3 is the time at which the court has to consider surrendering the person. In Saadi, at paragraph 133, the European Court said:
“With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time would be that of the proceedings before the Court ………… Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way in which it is likely to develop, the present circumstances are decisive.”
36. The case of Orchowski v. Poland was not, of course, concerned with extradition or surrender. Mr. Orchowski was a Polish citizen with much experience of conditions in Polish prisons. His central complaint was related to overcrowding. In particular he complained that he had been detained in cells allowing space of less than 3 m² per person. He also complained of being allowed only one hour of outdoor exercise per day. I do not think it necessary, in the present case, to go into detail about Orchowski v. Poland. The European Court adopted the minimum standard of 3 m² per prisoner laid down in Polish law. The Court dealt in great detail with prison conditions in Poland for the period from 2000 to 2008, noting in particular that the Polish Constitutional Court had itself condemned the widespread inadequate prison conditions. The Court concluded that it had been established that the applicant had been detained in overcrowded prison conditions and that there had been a violation of Article 3 of the Convention. The appellant attaches particular importance to the fact that the judgment in Orchowski v. Poland was what is called a “ pilot judgment,” that it recorded that there were some 160 pending applications before the court regarding Polish prison conditions and that the European Court undoubtedly recorded the existence of a serious systemic problem in Polish prisons. It can certainly be accepted that the Court found that overcrowding in Polish prisons had, during the relevant period been widespread and probably systemic.
37. At the same time, it is important to recall that the present case must relate to the conditions which the appellant will face if surrendered to serve the balance of his sentence in Poland. The judgment in Orchowski v. Poland was delivered on 22 October 2009. It deals with conditions from the year 2000 until mid-2008. The judgment recorded and welcomed (paragraph 152) the fact that Poland had recently taken general steps to remedy the structural problems related to overcrowding and the resulting inadequate conditions of detention. For example, the Polish government produced evidence that the rate of overcrowding was at 8.1% in September 2008 and at 4% in June 2009.

38. The appellant has also placed before the court a 2009 Human Rights Report on Poland from the US Department of State, dated 11th March 2010. While the report records that prison conditions in Poland remained poor and overcrowded, the statistical material regarding the number of prisoners detained in cells with space less than 3 m² per person would appear to be of the order of 2000 out of a total prison population of more than 80,000.

39. I turn, finally, to consider the order which this Court should make on the appeal. As I have explained, the court has not previously ruled on the standard of proof which should be applied in a case where the risk of ill-treatment contrary to Article 3 is raised. The existing case law has not addressed this issue. This court has not previously had to consider the implications of the cases of Soering or Saadi for the European Arrest Warrant regime and certainly has not had to consider the implications of the decision of the European Court in Orchowski v. Poland. While the learned High Court judge took note of the concept of “real risk”, it is not clear what standard of proof he applied, save that he ascribed to counsel for the appellant an acknowledgement of the need for “cogent and compelling evidence,” which recalls his reference to “clear and cogent evidence” in Busjeva, cited above. He referred in the present case to the “necessary standard” and believed that he should not “lower that standard”. He was also, understandably, concerned with the implication that, pending the improvement of Polish prison conditions, no person could be surrendered to that State. The fact that he acceded to the application that he certify questions as being of exceptional public importance demonstrates his concern as to the appropriate standard of proof. As we have seen, the appropriate standard is “substantial grounds for believing…” that the person “would be exposed to a real risk” of ill-treatment. In these circumstances, I believe that the entire application should be remitted to the High Court for reconsideration in the light of the appropriate standard of proof, as explained by this Court.

40. The time for consideration of the existence of “real risk” is the time of likely surrender to Poland. Consequently, it will be open to the High Court to receive further evidence. It should, in particular, be possible to clarify the conditions in which the appellant will be imprisoned, if surrendered to Poland.

41. I agree that, for the reasons given in the judgment which has been delivered by Denham J, the Notice to Vary should be dismissed.

42. On that basis, I would allow the appeal and remit the entire matter to the High Court.

Minister for Justice and Equality v Skiba

[2017] IECA 9
Judgment delivered on the 12th day of January, 2017 by Mr. Justice Edwards
Relevant facts
1. The appellant/respondent (hereinafter “the appellant”) is the subject of a European Arrest warrant issued by the Republic of Poland and dated the 21st of March 2016 which seeks his rendition for the purpose of requiring him to serve two sentences of imprisonment, one of nine months duration, and one of one year and six months duration, following his conviction for certain offences before the courts of the issuing state.

2. The appellant unsuccessfully contested his surrender in proceedings before the High Court at a hearing for the purposes of s. 16 of the European Arrest Warrant Act 2003 (the Act of 2003); and on the 1st of December 2016 the High Court (Donnelly J) made an order for his surrender under s. 16(1) of the Act of 2003. The appellant was remanded in custody to await his actual surrender.

3. The default position under the Act of 2003 is that a surrender order made under s. 16(1) comes into effect fifteen days after it is made (per s. 16(3)) and actual surrender must take place within a further 10 days (per s. 16(3A)). There is however provision in the legislation (in s. 16(5)) which allows for a new surrender date to be fixed exceptionally outside of the 10 day default period provided for in subs. (3A), where the High Court is satisfied that requires 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 subs (3A) or, as the case may be, will not be so surrendered.

4. The primary order made by Donnelly J on the 1st of December 2016, which authorised the surrender of the appellant under s.16(1) of the Act of 2003, was accompanied by ancillary orders under s. 16(4)(c)(i) and (ii), respectively, of the Act of 2003, also made by her. Those ancillary orders covered two contingencies and directed: (i) that should the appellant not be surrendered before the expiration of the time for surrender under subsection (3A) he should be brought before the High Court once again as soon as practicable after that expiration; or (ii) if it appeared to the Central Authority in the State that, because of circumstances beyond the control of the State or the issuing state concerned, that the appellant would not be surrendered on the expiration of the time for surrender provided for under subsection (3A) he should come before the High Court once again before that expiration.

5. The order for surrender having been made on the 1st of December 2016, the Irish Central Authority for the European Arrest Warrant made arrangements with the relevant Polish authorities in early course thereafter, and in the normal way, for an actual surrender of the respondent to be effected on the 22nd of December 2016, which was within the 10 day default period provided for in subs. (3A) of the Act of 2003. Again, as is usual in this country, the envisaged mode of actual surrender was that the appellant would be placed on a commercial airline flight from Dublin Airport to a destination in Poland which was scheduled to depart on that date, and that he would be accompanied on the flight by police officers from the issuing state who would have travelled to Ireland in advance for the purpose of so accompanying him. It is understood that tickets were purchased for that purpose on the 9th of December 2016.

6. However, the appellant’s surrender did not take place as planned. On the nominated date the appellant was duly brought from Cloverhill Prison by members of the Garda Siochána extradition unit to Dublin Airport. There the Gardai rendezvoused with their Polish counterparts. The appellant, and the Polish police who were to chaperone him on the journey, were then checked in for the flight to Poland. Having done so the entire party comprising the appellant, the Gardai and the Polish police officers, proceeded to the assigned departure gate. From here it was intended that they would cross the tarmac as a group to the relevant aircraft, and that the appellant and the Polish police officers, taking leave of the Gardaí at that point, would then board the aircraft. However, before that could happen the appellant indicated that he was not prepared to proceed beyond the departure gate. As Sergeant Kirwan put it, in his evidence in later proceedings before the High Court, “at that point Judge he refused to go and it became apparent that he wasn’t going to go except by using more than minimal force Judge and the Captain of the plane Judge decided at that point that he didn’t want him on his plane.”

7. In the circumstances the attempt to surrender on that date was abandoned at that point, and the appellant was returned to Cloverhill Prison overnight. On the following day, the 23rd of December 2016, the respondent/applicant (hereinafter “the respondent”), in purported pursuance of the ancillary direction given by Donnelly J under s.16 (4)(c)(ii) of the Act of 2003 brought the appellant back before the High Court. The Christmas court vacation had commenced at this point and this was a vacation sitting before Humphreys J.

8. Subsection 5 of s.16 of the Act of 2003 is in the following terms:

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.
9. Evidence was led on behalf of the respondent from the aforementioned Sgt Kirwan of the Garda Siochána Extradition Unit concerning what had occurred on the previous day in connection with the abortive attempt to effect a surrender of the appellant. Following this evidence, of which we have a full transcript, counsel for the respondent duly applied to the Court for orders under s. 16(5)(a)(i) and (ii) respectively of the Act of 2003. This application was opposed and in effect the court was being requested by counsel for the appellant to discharge his client under s. 16(5)(b).
10. Notwithstanding the appellant’s objections, which will be summarised later in this judgment, the High Court judge expressed himself to be satisfied on the evidence adduced before him that, because of circumstances beyond the control of the State the appellant would not be surrendered within the time for surrender provided for under s.16(3A). In the circumstances he was prepared to grant the orders sought and fixed the 5th of January 2017 as a new surrender date, the issuing judicial authority having indicated in advance its agreement to the proposed new date. The appellant was further remanded in continuing custody pending his surrender.

11. This appeal is against the said judgment and order of the High Court (Humphreys J.) dated the 23rd of December 2016 granting the application of the respondent for orders under s. 16(5)(a) (i) and (ii).
The objection to the fixing of a new date.
12. On the hearing of this appeal counsel for the appellant has re-iterated a complaint made by him before the court below that there was insufficient evidence before the High Court to enable that court to be satisfied that surrender within time was not going to be possible “because of circumstances beyond the control of the State, or the issuing state concerned”, and that essentially the judge’s finding was against the weight of the evidence. It was submitted that as this Court (ie the Court of Appeal) has previously expressed itself satisfied that the intention of the Oireachtas in enacting subs. 5 (and also subs. 5A, although it has no relevance to the present case) of s. 16 of the Act of 2003 was to faithfully transpose Article 23 of the Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA. ; O.J. L190/1 of 18.7.200) as amended (“the Framework Decision”), the subsection required to be interpreted and in applied in conformity with the said Article 23 of the Framework Decision, as mandated by Criminal proceedings against Pupino (C-105/03) [2005] ECR I-5285; [2005] 2 CMLR 63. It was submitted that the manner in which Article 23 is intended to be operated is the subject of a detailed recent opinion by Advocate General Bobek of the Court of Justice of the European Union (“the ECJ” )delivered on the 27th of October 2016 in the case of Minister for Justice and Equality v Thomas Vilkas, Case C-640/15. (We were further informed that a judgment of the Grand Chamber of the ECJ in the same case is scheduled for delivery on the 27th of January 2017). It was submitted that in evaluating whether the circumstances as they existed were truly “beyond the control” of the relevant parties the High Court ought to have adopted the approach commended by Advocate General Bobek in paragraph 68 of his said opinion.

13. The Vilkas case involved a preliminary reference by us, the Court of Appeal, to the ECJ seeking guidance on the interpretation of Article 23 of the Framework Decision. It requires to be stated immediately that the facts in Vilkas were markedly different from those in the present case, involving, as they did, a second application to the High Court to have a new date fixed, a new date having previously been fixed pursuant to s.16(5)(a)(i) of the Act of 2003. Nevertheless, counsel for the appellant contends, the guidance offered by the Advocate General is of general application to all cases in which Article 23 of the Framework Decision is engaged

14. In the course of his opinion, the Advocate General had said (at para 68 thereof):

“68. Concerning the first element of force majeure, the behaviour of the requested person can be considered as a ‘circumstance beyond the control in the sense of Article 23(3) if it cannot be foreseen and is external to the control of the Member State alleging them. Aggressive behaviour at the time of surrender may therefore be considered as an unforeseen and extraneous event only if the factual elements at the disposal of the authorities in no way hinted at such a scenario occurring. When assessing the likelihood of such a scenario, due consideration must be given by the national authorities to the specific factual background of each individual case, including considerations such as: the crimes for which the person is requested or has been convicted; behaviour during detention; previous records; and any other elements related to his background that may emerge from the national file.”
15. However, in the curial part of his ex tempore judgment in the present case Humphreys J stated (inter alia):
“Well, I’m not going to apply paragraph 68 of the Advocate Generals opinion because in my view that is a departure from the normal understanding of force majeure. So I’m going to give it its normal meaning. The respondent refused to get on the plane, that’s a circumstance outside the control of the Minister. So because I’m satisfied that the failure to effect the surrender was because of circumstances beyond the control of the state. I’ll fix the date of the 5th January for the surrender of the Respondent and order him to be detained …”
16. It has been contended that the High Court judge’s express refusal to follow the interpretation commended by the Advocate General in his opinion (which was admittedly not binding) was an error in itself; and it has been further contended that this error directly led the judge into the further error of making a finding that surrender could not be effected within the default statutory time limit due to circumstances beyond the control of the State, in the absence of any evidence to support that finding.
17. At the hearing before the High Court, that court had received evidence that on the 12th of December 2016 a phonecall had been made by the appellant’s solicitor to Sgt Kirwan advising him that the appellant had a fear of flying. Sgt Kirwan’s evidence was that he advised the appellant’s solicitor to speak to a representative of the Chief State Solicitor’s office. He himself had then informed the relevant authorities of what had transpired during this phone call.

18. In the course of giving evidence before the High Court Sgt Kirwan expressed himself to have been sceptical of the claimed fear of flying. He observed that at the time when the surrender order was made no indication had been given to Donnelly J concerning the alleged fear of flying. Moreover, no medical evidence had been proffered in support of the claimed fear. He was then asked if there had been occasions in the past, occasions on which persons were being surrendered, where they had exhibited nervousness about, or a claimed fear of, flying and he responded:

“Yes Judge, many occasions, I’ve dealt with hundreds of surrenders by air Judge, 99.9% of them going according to plan and I have met many people when I’ve met them at the airport they have said they have never been on a plane before and they would have been quite anxious and it is normal enough but they didn’t have any problem boarding them on the plane.”
19. In the course of his submissions to the High Court judge, counsel for the appellant contended that the phonecall from the appellant’s solicitor had been sufficient to put the State on notice of a potential problem, and specifically to render it foreseeable that the appellant might refuse to board the aircraft. Accordingly, his argument went, it could not then be credibly contended that there were circumstances “beyond the control” of the relevant parties. It was submitted that the evidence did not establish that.
20. Moreover, in further support of that contention, counsel for the appellant had in addition sought to rely upon a course of correspondence, admitted in evidence by agreement with the respondent, between the Irish Central Authority and the authorities in Poland, the catalyst for which had been the information communicated by the appellant’s solicitor.

21. It may be helpful to review this correspondence in some detail. It commences on the 12th of December 2016 (the date on which Sgt Kirwan had been telephoned by the appellant’s solicitor) with a letter from the Central Authority marked “urgent” and addressed to the issuing judicial authority. It was in the following terms:

“I refer to previous correspondence.
Solicitors acting for the respondent have advised that their client has expressed a fear of flying.

Accordingly alternative arrangements for his surrender, not involving commercial aircraft, will be required.

The respondent has expressed a fear of flying and there is a risk that he will resist boarding a commercial aircraft resulting in the pilot refusing to allow him on board, which has happened in the past.

In the circumstances, please make alternative travel arrangements to collect the respondent between the 16th and 25th of December 2016 (dates inclusive). If due to circumstance beyond the control of the issuing state this is not possible then a date for the purpose of extending the time for his surrender should be proposed by the issuing judicial authority (Sad Okregowy w Kielce) for agreement in accordance with Art 23 .3 of the Framework Decision and the respondent will have to be collected within ten days of that date.”

22. This letter was responded to by an e-mail dated 16th December 2016 from NCB Warsaw / SIRENE Poland. (The acronym NCB Warsaw refers to the Europol National Crime Bureau Unit at Warsaw, while the acronym SIRENE (which stands for Supplementary Information Request at the National Entries) Poland refers to the Polish branch of the Schengen Information System network supporting co-operation and coordination between law enforcement agencies in the EU member states). These agencies jointly perform functions in Poland broadly corresponding to those of the Garda Siochána Extradition Unit in this jurisdiction, and in particular operate a “Convoy Unit” for transporting extraditees in the context of surrender arrangements. The e-mail noted that:
“… your authority informed that the subject has expressed a fear of flying. Taking above into consideration, on behalf of our Convoy Unit, please kindly inform us if there is an appropriate medical documentation confirming the subject’s fears (phobias) of flying or whether the only information is information which has been provided by his solicitors only.”
23. This was followed up by a letter from the issuing judicial authority to the Irish Central Authority also dated 16th December 2016 which made a request for “relevant medical documentation concerning the drugs (phobia related) for Piotr Pawel Skiba’s travelling by air”.
24. Then on the 19th of December 2016 the Irish Central Authority wrote again to the issuing judicial authority stating:

I refer to your correspondence dated 19/12/2016.
This office is not in possession of any medical documentation concerning the respondent’s expressed phobia.

As previously informed, Solicitors acting for Mr. Skiba have advised that their client has expressed a fear of flying.

In view of the respondent’s expressed fear of flying, there is a risk that he may resist to board a commercial aircraft, resulting in the pilot refusing to allow him on board. Accordingly, arrangements for his surrender, not involving commercial aircraft, appear to be warranted.

There is a concern now that he has expressed that he has a fear of flying, if he were to refuse to board a commercial flight it might then be difficult to persuade the High Court to extend the time for surrender on the basis of circumstances beyond the control of the member states./

That is because it could be argued on his behalf that it was reasonable to foresee that he would not voluntarily board an aircraft and therefore the reason he was not surrendered was not as a result of something beyond the control of the states in question as alternative arrangements should have been in put in place.

As matters stand, the respondent must be surrendered to the Polish police on or before 25/12/2016. If due to difficulty in arranging for an alternative means of surrender excluding commercial aircraft this is not possible, then a date for the purpose of extending the time for his surrender should be proposed by the issuing judicial authority (Sad Okregowy w Kielce) for agreement by the High court in accordance with Art 23 .3 of the Framework Decision. The respondent will have to be collected within ten days of that date.”

25. Counsel for the appellant suggested that as this correspondence contained an express acknowledgment by the Irish Central Authority, as early as the 12th of December, 2016, that a risk that the appellant would resist boarding the aircraft was foreseen, and as it had suggested to the Polish authorities that alternative arrangements should be made to transport the appellant other than by air, and a decision was made to attempt to transport the appellant by air regardless, it could not be said that what transpired on the 22nd of December 2016 had represented circumstances outside of the control of the relevant authorities.
26. On the contrary, it is said, what the evidence had in fact established was that the problem that arose at Dublin Airport on the 22nd of December 2016 was reasonably foreseeable as being a risk once the appellant’s solicitor had notified Sgt Kirwan of the appellant’s phobia; that it was in fact foreseen; and that it was ignored. It was not a case of there being insufficient time to make alternative arrangements, or of there being a difficulty with resources. Rather, there had been a conscious decision to attempt to proceed with the original plan to repatriate the appellant by air, notwithstanding that the risk that the appellant would resist boarding the aircraft had been foreseen. The problem that in fact arose was therefore said to have been entirely avoidable. Counsel for the appellant has continued to maintain that position before this Court. In those circumstances, he has submitted that the High Court’s finding that there were circumstances beyond the control of the relevant authorities was not just unsupported by the evidence actually adduced, but in fact contradicted.
The response to the objection raised
27. In responding to the appellant’s complaints, counsel for the respondent has contended that whether or not the Irish Central Authority, upon having been notified that the appellant had a fear of flying, perceived there to be a risk that the appellant might refuse to board the aircraft is not particularly material. The Central Authority was not the person required by the statute to make the relevant assessment. It was for the High Court judge to assess, on the evidence before him, whether he was satisfied that, because of circumstances beyond the control of the State or the issuing state concerned, the appellant would not be surrendered within the time limited by s.16(3A).

28. Counsel for the respondent accepted that the judge was required to approach the matter of that assessment with due diligence. However, she contended, what Advocate General Bobek had in fact been commending at paragraph 68 of his opinion was a requirement for a heightened due diligence in the case of an application for the approval of a new surrender date on a second or subsequent occasion, which was the situation that had given rise to the reference in the Vilkas case but which was not the situation here.

29. Counsel submitted that the only evidence before the High Court judge, beyond the factual description of what had happened at Dublin Airport on the 22nd of December 2016, was Sergeant Kirwan’s testimony concerning the communication that had been received from the appellant’s solicitor. In that communication, the extent or degree to which the appellant might be affected by said alleged fear of flying was not stated; nor was it stated that the appellant would be unable to travel by air or that he might refuse to board an aircraft; nor was any indication given that the appellant’s fear of flying had ever prevented him from flying in the past. Moreover, no medical evidence had been adduced in support of the claimed fear of flying. The authorities were not told that the appellant had a phobia in the medically pathological or psychological sense, or how it might manifest itself or affect him. The information communicated was limited to advising Sgt Kirwan that the appellant had a fear of flying.

30. Further, Sergeant Kirwan had legitimately expressed scepticism of the claim of fear of flying. He had made the valid point that the issue was raised very late in the day, and without any detail or supporting evidence. In addition, he had had previous experience of hundreds of persons being surrendered by air with the overwhelming majority of them going according to plan, and with the persons concerned boarding the aircraft without resistance. This was entirely credible evidence. Many people are nervous of or have a fear of flying but most people are prepared to undertake flights notwithstanding their nervousness or fear. It was submitted that cases in which the fear exists to such a degree as to be phobic and to make the sufferer resistant to boarding an aircraft are rare. Due diligence demanded that any claimed fear of flying communicated to the authorities be assessed with reference to the details provided concerning the degree to which the claimed fear affected, or was likely to affect, the sufferer, how it had affected him in the past, and any professional or medical help availed of, or being availed of, in respect of it. There were simply no details provided in this case beyond the bald statement, made very late in the day, that the appellant has a fear of flying. The information in that regard was peculiarly within the knowledge of the appellant and his advisors. The onus was therefore on them to proffer and adduce such evidence to the authorities. Despite this the appellant did not offer any evidence himself, nor was any extrinsic supporting material furnished.

31. In addition, neither the appellant nor his solicitor gave any evidence at the hearing before Humphreys J. The suggestion that the information communicated on the 12th of December by the appellant’s solicitor was as bald and non-specific as the respondent suggests was never challenged and appears to be accepted.

32. The Court was entitled, and indeed was obliged, to take all of that into account. Accordingly, counsel submitted, the High Court judge’s decision had been the result of the application of reasonable and normal due diligence in the assessment of the evidence before him. It was not a situation requiring heightened due diligence such as might arise where a previous attempt to effect transport by air had failed due to disruptive behaviour by the appellant. The Court’s decision was therefore amply justified on the evidence it had before it.
Decision
33. I find myself in agreement with counsel for the respondent’s argument. Yes, the High Court judge was obliged to exercise due diligence is assessing the claim of force majeure or “circumstances beyond the control” of the relevant authorities, but there is no reason to believe that he did not do so. However, he had no grounds for applying an approach of heightened due diligence. The argument advanced by counsel for the appellant is premised on the proposition that once Sgt Kirwan had been informed that the appellant had a fear of flying that it was reasonably foreseeable that he would resist boarding the aircraft or create such disruption as to precipitate in a pilot refusing to allow him to board. I would beg to differ. A matter such as fear of flying is very easily asserted, but before action on foot of it could reasonably be justified there would have to be some assessment of the level of the theoretical risk involved. Very many people have a fear of flying and would prefer to travel by sea or overland despite the additional time involved in doing so. However, in most cases the fear does not operate to such a degree as to prevent them from taking flights. By the same token, a small percentage of people do have a fear so profound as to represent a phobia that operates to inhibit them from taking flights. In assessing the possible implications of an asserted “fear of flying” an assessor would naturally look to see if the assertion was particularised and supported in any way, e.g., by the provision of details by the person himself concerning how he had been affected historically, by third party accounts of how he had been affected, and optimally by relevant expert or professional testimony if any such material was available. However, absent any such support, a bald assertion could, it seems to me, do no more than flag a remote and theoretical possibility, rather than a reasonably foreseeable risk to be actively responded to.

34. Much reliance was placed by the appellant on the Central Authority’s reaction to the information communicated. I consider that the two letters written by the Central authority, on the 12th of December 2016 and on the 19th of December 2016, respectively, have to be considered together. They do not indicate, as counsel for the appellant suggests they do, an acceptance by the Central Authority that it was reasonable to foresee that he would not voluntarily board an aircraft. Rather, they indicate acceptance that such a proposition “could be argued on his behalf”. That position may well have been adopted out of a concern on his part to be seen to have ostensibly taken on board certain of the Advocate General’s remarks in the early aftermath of the promulgation of his opinion, but in circumstances where all the nuances of that opinion may not yet have been fully appreciated.

35. Arguably, the Central Authority could be said to have over-reacted to the information received, in the absence of details of the degree to which the appellant suffered from the claimed fear or concerning how he had been affected by it up to that point in time. However, as counsel for the respondent correctly points out, how the Central Authority may have viewed the risk is not determinative of anything. Rather, the person required under statute to assess whether the circumstances advanced as constituting force majeure or “circumstances beyond the control” of the relevant authorities, were properly to be so characterised, was not the Central Authority but the High Court judge in the court below.

36. I am satisfied that the High Court judge’s assessment was in fact conducted with due diligence, and was consistent with the relevant evidence actually before him.

37. I would therefore dismiss the appeal.

MJELR -v- Gritunic

 

[2009] IEHC 342 (30 June 2009)

JUDGMENT of Mr. Justice Michael Peart delivered on the 30th day of June 2009

The application before the Court is one seeking the surrender of the respondent on foot of a European arrest warrant which was issued by a judicial authority in Paris, France on the 25th June, 2008 following the trial and conviction of the respondent on the 21st May 2008 in absentia for certain offences as set forth therein (“the second warrant”). There is some confusion said to exist by the respondent in this case as to exactly how many and/or what offences he was convicted for on that date, and I will come to that controversy in due course. But in any event he was sentenced to a term of five years’ imprisonment.

At any rate that warrant was received by the Central Authority here on or about the 21st November, 2008, following which an application to endorse that warrant for execution was made to the High Court on the 25th November, 2008. The warrant was duly endorsed for execution on that date, and on the following day, the 26th November, 2008, the respondent was duly arrested on foot of it and was brought before the Court as required by s. 13 of the European Arrest Warrant Act 2002, as amended. He has been remanded in custody from time to time thereafter pending the hearing of the present application.

There is however a history to the present application which is important. On the 6th February, 2007, a European arrest warrant was issued by the same French judicial authority seeking the surrender of the respondent to face prosecution for the offences set out therein (“the first warrant”). That warrant was endorsed by the High Court for execution on the 4th June, 2008. The Court has been informed that this first warrant had been received by the Central Authority here on the 14th March 2007, but thereafter further information was sought by the Central Authority, hence the application for endorsement did not proceed until the 4th June 2008. I should at this point refer to the fact that the date on which this application for endorsement was made and granted post-dated the trial and conviction in absentia of the respondent on the 21st May 2008. That fact had not been communicated to the Central Authority here and therefore it is clear that the High Court was not appraised of the fact that the respondent could no longer be surrendered to face prosecution. An issue arises in relation to that which I will come to.

On the 14th July 2008, again in the absence of any knowledge on the part of the Central Authority or the Court the respondent had already been tried and convicted in his absence, the respondent was duly arrested on foot of the first warrant and brought before the Court and was thereafter remanded in custody from time to time pending the application on foot of that first warrant for his surrender. An application for bail was heard by the High Court and was refused following objection to bail being made. By November 2008 the respondent had learned that he had been tried and convicted in his absence on the 21st May 2008 and his solicitors so informed the Central Authority of this fact on the 20th November 2008. On the 25th November 2008 an application was made to this Court in the presence of the respondent (since he had been remanded to that date and was present before the Court) to withdraw the first warrant. That application was granted, and immediately following that withdrawal, the respondent’s release from custody was ordered, and he was released. However, immediately thereafter the Applicant made the application to have the second warrant endorsed for execution, and a short time thereafter the respondent was re-arrested on foot of same and brought back to the High Court on foot thereof, and he was again remanded in custody pending the hearing of the present application for surrender on foot of the second warrant so that he can be surrendered to serve the sentence imposed on the 21st May 2008.

By the time the first warrant was withdrawn, the respondent had been in custody for a period of some nine months.
The number of offences:
Before addressing the points of objections raised by the respondent I should set out the differences in the two warrants and the actual conviction order of the French Court dated 21st May 2008 as to how many offences are involved in this case.
The first warrant:
In the first warrant, it is stated that the surrender of the respondent was being sought so that he could be prosecuted for “three offences” (my emphasis). In respect of these offences three separate boxes were marked with an ‘x’ in paragraph E.1. in order to indicate that all three offences were offences within the categories of offence set forth in Article 2.2 of the Framework Decision, and therefore ones in respect of which double criminality need not be verified. The first warrant sets out a recitation of facts giving rise to these offences as follows:

“In Paris on the national territory, since January 2006 and in the course of 2007, over 2005, 2006 and 2007 as perpetrator.
Aggravated procuring (several victims, several perpetrators), understanding for the purpose of committing such a violation as aggravated procuring, possession of forged administrative documentation, facts provided for and repressed by sections 225-5, 225-7, 225-11, 225-20, 225-24, 225-21, 450-1, 441-3, 441-9, 441-10, 441-12 of Penal Code.

On 29th June 2006 the French Central Department for the Repression of the Trafficking of Human Beings (OCRTEH) recorded the complaint of a Brazilian person, Oliviera Juara Moreira. The young woman explained that upon her arrival over the French territory she had been forced into prostitution by two men, Sacha and Leon.

She added that Leon had beaten her up and raped repeatedly. Further to that complaint the police arrested Constantin Bardan who admitted he had approached the young woman in Brazil and stated that Sasha, whose real name would be Igor GRITUNIC, would reside in Ireland. He would use a forged Spanish passport no X50395 and ID no RE 008800019325 in the name of Suwwan de Filipe Karim, born 20th April 1980 in Brasilia (Brazil). His mobile number in Ireland would be 353 862 190 236.”

I should add that additional information was provided to the Central Authority in the form of letters from the French judicial authority relating to the factual basis for these offences.
The three boxes marked with an ‘x’ in this first warrant were:

• Participation in a criminal organisation
• Sexual exploitation of children and child pornography

• Forgery of administrative documents and trafficking therein.

In the additional information provided, the French judicial authority stated that the box for ‘Sexual exploitation of children and child pornography’ was marked in error, and that the correct offence to be marked was ‘trafficking in human beings’.
The conviction in absentia on 21st May 2008:
The order of the French Court made on the 21st May 2008 following the conviction in absentia of the respondent states that he was found guilty of the following offences:

“Aggravated Pimping: Victim engaged in prostitution since her arrival in France, offence committed from January 2006 until the 27th of April 2006 and for a period not under the statute of limitations, in Paris and on the whole national territory”
Aggravated Pimping: Multiple perpetrators and accomplices, offence committed from January 2006 until the 27th of April 2006 [mistakenly stated as 2007] and for a period not under the statute of limitations, in Paris and on the whole national territory.

Possession of several falsified administrative documents, offence committed from January 2005 until January 2007 and for a period not under the statute of limitations, in Paris and on the whole national territory.

Use of falsified administrative documents stating a right, an identity or a quality, offence committed from January 2005 until January 2007 and for a period not under the statute of limitations, in Paris and on the whole national territory.”

This suggests that the respondent was convicted in respect of four offences whereas his surrender on foot of the first warrant was said to be for the purpose of prosecuting three offences as already set forth.
The second warrant:
This warrant seeks surrender so that he can serve the sentence of five years imprisonment imposed on the 21st May 2008 in respect of “two offences” (my emphasis). Paragraph c under the heading ‘Violations’, having referred to “two offences” states as follows as to the underlying facts:

“Facts committed in Paris, since January 2006 till 27 April 2006 within the provisions of the statutes of limitation as perpetrator.
“On 29 June 2006 the French National Vice Squad in charge of repressing procuring received a complaint from a Brazilian woman, Oliviera Juara MOREIRA. The young lady complained that upon her arrival in Paris she had been coerced in doing prostitution by two men, SACHA and LEON. She added that LEON had repeatedly raped and beaten her up. The investigation made it possible to arrest Constantin Bardan who admitted he had approached the girl in Brazil and added that SACHA, whose real name was Igor GRITUNIC, would reside in Ireland. He would use a forged Spanish passport no X 50395 and identification number RE 008800019325 in the name of Karim SUWWAN DE FILIPE, born 20 April 1980 in Brasilia (Brazil). It appeared he had opened a phone line under his alias and sent several money orders to Brazil between February and May 2006 to the benefit of Constantin BARDAN. He received Oliviera Juara MOREIRA at the Orly airport and brought her to the place where she would prostitute. In spite of the warrant of arrest he has not been arrested and should be seen as absconding and fleeing justice.”

The two offences referred to in the second warrant are described in the warrant as being:

• Procuring with aggravated circumstances (several victims, several perpetrators)
• Possession and use of forged administrative documents

The two offences are marked in the warrant as being Article 2.2 offences, namely:

• Trafficking in human beings
• Forgery of administrative documents and trafficking therein

 

The Respondent’s Points of Objection and Submissions:
A number of points of objection are raised against an order for surrender being made in this case.

 

1. Warrant void for uncertainty:
I have set forth the differences which appear in the first and second warrants and the French court order dated 21st May 2008 (conviction and sentence) as to the number and nature of the offences for which his surrender is now being sought. These differences form the basis for the respondent’s submission that the second warrant should be regarded as void for uncertainty, or otherwise one on foot of which the respondent should not be surrendered.

In my view this issue should be determined by reference only to the second warrant and the contents of the court order since the first warrant is not the subject of this application. That warrant has been withdrawn. Mr O’Higgins submits that because his surrender is sought to serve a sentence of five years for two offences, yet the conviction and sentence of five years, according to the court order itself, is in respect of four offences as set forth therein, neither the respondent nor this Court can know with the necessary degree of certainty precisely what offences his surrender is in respect of.

Mr O’Higgins refers to the fact that a composite sentence of five years was imposed in respect of the four offences referred to in the court order dated 21st May 2008, and that this Court and the respondent cannot therefore work out or know how much of that five years sentence is referable to the two offences only for which his surrender is sought. It is submitted that if the sentence is imposed for four offences it cannot be the case that the same five years is attributable to only two offences. Article 27.2 of the Framework Decision is relevant to this objection. It provides:

“27.2: 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.” (my emphasis)

Accordingly it is submitted that if surrendered to serve this five year sentence, he will be deprived of his liberty not only in respect of the two offences for which his surrender is sought but also for the remaining offences for which his surrender has not been sought. It has been submitted also that in spite of the fact that these difficulties have been drawn to the attention of the issuing judicial authority, the differences and the resultant confusion has not been explained or clarified.
Shane Murphy SC for the respondent submits that the alleged confusion is more apparent than real when one reads the transcript of the court’s decision dated the 21st May 2008. As I have already set forth, the two offences set out in the second warrant are described as:

• Procuring with aggravated circumstances (several victims, several perpetrators)
• Possession and use of forged administrative documents.

Mr Murphy submits that if one considers the contents of the court order dated 21st May 2008, the four offences for which he was convicted and sentenced to five years imprisonment are these offences, albeit that there are two convicted offences under each category of offence referred to in the warrant. He submits that the four offences for which he was sentenced are within the two offences set forth in the warrant and that there is no real confusion arising in this regard, and that the two “Aggravated Pimping” offences referred to in the conviction are a way of describing the first offence referred to in the Second European arrest warrant, and that the offences referred to in the conviction as “Possession of Several Falsified Administrative Documents” and “Use of Falsified Administrative Instruments Stating a Right, an Identity or a Quality” is a recitation of what the respondent was convicted for in respect of the second offence set forth in the warrant.
However, in addition, Mr Murphy has referred to the provisions of Article 27.2 of the Framework Decision which I have already set out, and he refers also to the provisions of s. 22 of the European Arrest Warrant Act 2002, as amended which puts in place a specialty rule for the purpose of the European arrest warrant arrangements under the Framework Decision. He refers to the presumption contained in s.22 (3) of the Act as follows:

“(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.” (my emphasis)

Firstly, it is submitted that this Court must presume therefore, until the contrary is proved, that the respondent if surrendered, will not be required to serve a sentence for any offence not the subject of the second warrant, and that the respondent has failed to prove the contrary in spite of the fact that he has had legal advice available to him from a French lawyer who has sworn no affidavit in support of his point of objection in this regard.
Secondly, it has been submitted by Mr Murphy that this Court must proceed on the basis, in any event, that if it was intended to imprison him in respect of any matter not covered by the warrant, that this would not occur before the French judicial authority had obtained the consent of he High Court here, as provided for in s. 22 of the Act.

Thirdly, it is submitted that this Court is entitled and obliged to presume, on the basis of the principle of mutual trust and confidence between Member States that the French judicial authority and/or the French State will comply with its obligations under the Framework Decision, and that these obligations include that upon surrender the respondent will not be imprisoned for any offence not the subject of the second warrant.
Conclusion:
The respondent has adduced in evidence a copy of the transcript of the French court’s conviction and sentence dated 21st May 2008 in an effort to prove that he was sentenced for offences other than those set forth in the warrant and submits therefore that if he is surrendered to serve the composite sentence of five years imposed, he will in effect be detained for offences not covered by the second warrant. I agree that the confusion between what is stated in the warrant as to “two offences” and the reference to four offences for which he was convicted in the order dated 21st May 2008 is more apparent than real, when one examines the transcript adduced in evidence by the respondent. It certainly does not dislodge the presumption contained in s. 22 (3) of the Act. If this Court had before it only the second warrant, and was considering the contents of the warrant as to the offences to which it refers, it would have seen that two offences were covered by the warrant, that the facts giving rise to those offences are set forth in paragraph c of the warrant, that two categories of offence are marked in the list of offences in the warrant for the purpose of Article 2.2 of the Framework Decision, and finally that a total of five years imprisonment has been imposed, all of which remains to be served. The court can also see that the offences are said to be in contravention of quite a large number of different provisions of the French Penal Code as set forth.

Even though the original purpose of the respondent obtaining and delivering to the Central Authority here a copy of the transcript dated 21st May 2008 was to demonstrate while in custody on foot of the first warrant that in fact he had already been tried and convicted for the offences for which his surrender was at that time being sought for prosecution, it is of course open to him to refer to this transcript now to try and dislodge the presumption that the sentence covers offences not covered by the second warrant, in my view it does not do so. It is clear for example that while the judicial authority in France has stated the “Nature and Legal Classification” of one of the offences is “Possession and use of Forged Administrative Documents” (see page 3 of second warrant), that offence has two elements, namely possession and use, and two of the offences for which his conviction is recorded in the transcript for the 21st May 2008 are “Possession of Several Falsified Administrative Documents” and “Use of Falsified Administrative Instruments Stating a Right, an Identity or a Quality”, as already referred to. In my view the matter is clear. The issuing judicial authority has completed paragraph c of the warrant by giving the two categories of offence for which five years imprisonment was imposed. Facts giving rise to the matters for which he was sentenced are contained, necessarily in summary form, in this warrant.

While it would have been possible to complete the warrant differently and in a way which made reference precisely to the four offences referred to in the conviction order itself, the fact that it is done in the way it has been does not in my view invalidate the warrant.

The important thing is that the respondent has been convicted for offences, all of which are within Article 2.2 of the Framework Decision. This is not a case where some difficulty might arise in the event that one or other of the offences does not correspond, and where as a result it may not be possible to say how much of the sentence imposed refers to the offence which does not correspond and those for which there is no such difficulty.

The Court must also accord to the issuing judicial authority the trust and confidence underpinning these new arrangements for surrender between Member States, being arrangements intended to remove the delays and complexities perceived to have previously existed under former treaty arrangements. It must operate on the basis of judicial cooperation, albeit that the necessary formalities must be properly fulfilled and completed. Nevertheless, this Court must not be too concerned with the sort of alleged ambiguities or lack of clarity submitted in this case, which are necessarily on occasion going to appear given the differences between the criminal systems and codes of different member states. The new arrangements are intended to reasonably accommodate these inevitable differences. Nevertheless matters must be done properly in accordance with what the Framework Decision and the Act here require, but a margin of appreciation must be allowed to take account of the differences to which I have referred and to the difficulties sometimes encountered with translated documents. In my view, as I have stated, this second warrant is completed sufficiently to cover the offences for which the respondent was convicted on the 21st May 2008 and for which the sentence of five years was imposed. In addition, I do not have any doubt but that the respondent is fully aware of the matters for which he has been sentenced since he himself has obtained the transcript in question.

A further matter of some comfort, though not of itself determinative, is that under the arrangements of the Framework Decision, the respondent, if surrendered, has the right to be retried on the offences for which he was tried and convicted in his absence, being the offences for which his surrender is now sought however they are categorised or set out in the warrant. I will come in due course to the point of objection raised in relation to the absence of an undertaking under s. 45 of the Act regarding a retrial.

2. Warrant fails to provide sufficient information for the purpose of s. 11 of the Act:
Under this heading of objection, the respondent submits that necessary details are absent from the warrant as regards the particular provisions of the French Penal Code alleged to have been infringed, and that a copy of those provisions of the French Penal Code and relevant provisions of the French Code of Penal Procedure have not been provided.

Secondly it is submitted that there is a lack of clarity as to the acts and conduct of the respondent which are said to have given rise to the offences, and/or when and where they were committed.

Mr O’Higgins has submitted that contrary to what is required by s. 11 (1)(f) of the Act the second warrant fails to provide clear and specific information to link the respondent to the offences referred to in the warrant. He has referred to the judgment of Denham J. in Minister for Justice, Equality and Law Reform v. Desjatnikovs, (Unreported, Supreme Court, 31st July, 2008) where at paragraph 21 of her judgment, she stated:

“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.”

Mr O’Higgins submits that there is a paucity of information about what actions or conduct of the respondent are said to have given rise to the offences in the warrant, and in particular that there is little if any detail of when or where these offences were committed, and that there ought to have been no difficulty in setting out more adequate detail especially given the fact that his trial has taken place and the evidence is therefore known. He submits also that this absence of information is particularly important in the present case given the facts already referred to as to the difference between the number of offences (two) referred to in the warrant, and the number (four) for which he was convicted on the 21st May 2008.
Mr Murphy has submitted on behalf of the applicant that the warrant contains sufficient information to satisfy the requirements of s. 11 of the Act. He refers to the fact that page 2 of the warrant states that the offences were committed in Paris between January 2006 and 27th April 2006. He submits that the recitation of facts in the warrant shows that the offences were committed during this period and shows in a general but clear way what the respondent is said to have done. He refers also to the clear statement as to the provisions of the French Penal Code which have been offended against as set forth in page 3 of the warrant. He submits that it is not required that copies of those provisions be attached to the warrant or provided to the respondent. He has referred to a judgment of my own in Minister for Justice, Equality and Law Reform v. Dimitrovas, (Unreported, High Court, 13th February, 2007) when I stated at page 4 thereof:

“…. The warrant is in compliance with the section. The Framework Decision itself of and the Act provide a specimen of the form of warrant to be used for a European arrest warrant. Its purpose is to ensure that a person arrested has the necessary basic information upon arrest as to the offences for which his surrender is sought. It is not a document designed or intended to provide him with every piece of information which he might wish to have for the purpose of his trial, but he is entitled to know in a general way what offence is alleged and the provision of the criminal law of the issuing state he is said to have infringed, and of course the potential penalty he might face if convicted. This Court also requires a certain minimum of detail if it is required to determine the question of correspondence and minimum gravity. That is another purpose fulfilled by a correct completion of the warrant.”

Mr Murphy submits that the respondent can be in no doubt as to the offences for which his surrender is sought and the sentence which he faces if surrendered, and he refers to the very detailed setting out of the provisions of the French Penal Code which were infringed by him. In this particular case he refers also to the fact that the respondent has in any event been provided with a copy of the court’s detailed consideration of the evidence against him in the transcript dated 21st May 2008, and that he cannot with any sincerity state that he is not fully aware of the facts which gave rise to his conviction.
In all these circumstances he submits that the requirements of s. 11 are satisfied.

I am satisfied that there is sufficient information in the warrant to fulfil in a reasonable way the requirements of s. 11 of the Act, even if it may clearly have been possible to insert a much more expansive recitation of the facts which emerged from his trial in absentia. The respondent can be sufficiently appraised from such detail as is contained in this warrant to know in at least a general way, and in some respects a specific way, as to what he was convicted for and what sentence was imposed, and what provisions of the French Penal Code he has offended against. That suffices for the purpose of a European arrest warrant, subject of course in an appropriate for that information to enable the Court to reach a conclusion as to double criminality. But that does not apply in the present case. It is noteworthy, though not itself determinative, that the respondent has not sworn any affidavit to state that he is unclear or unaware of what these offences refer to.

3. Applicant is not entitled to avail of Article 2.2 of the Framework Decision in relation to the offences marked.
The respondent’s submissions under this heading of objection relay to an extent on previous submissions as to the lack of precise information in the warrant. But at the heart of the submission is the fact that in respect of the forgery and use of forged documents offences the issuing judicial authority has, for the purpose of Article 2.2 of the Framework Decision, marked the box “Forgery of administrative documents and trafficking therein”.

Mr O’Higgins has submitted that there is nothing in the warrant to indicate that the respondent has been convicted in respect of trafficking in such documents and that the two elements of the category of offence must be read conjunctively. In other words, he is submitting that before this box can be marked the offence alleged against the respondent must be not only the forgery of the documents but also trafficking therein, and that in the present case it is only forgery of documents that is alleged. In fact Mr O’Higgins has gone further and has referred to some additional information which has come from the issuing judicial authority to the effect that under French law there is in fact no such offence as trafficking in such documents. Mr O’Higgins acknowledges that in the cases Minister for Justice, Equality and Law Reform v. Desjatnikovs, and Minister for Justice, Equality and Law Reform v. Ferenca, the Supreme Court has stated that it is for the issuing state to mark the relevant box as being applicable to the offence as it is defined under the law of the issuing state, and that it is not the role of this Court to engage in an analysis of the law of the issuing state as to whether the offence is one which can be so marked as being an Article 2.2 offence. Nevertheless he submits that there is nothing in the warrant to suggest that the respondent either forged such documents or trafficked them.

I am satisfied that this point of objection fails. Firstly there is clear reference in the recitation of facts in this warrant to the use of a forged passport and use of other false documents i.e. opening a phone line under an alias. The offence is described in the warrant as being “possession and use of forged administrative documents”. But in any event it is for the issuing judicial authority to mark the box if it considers that under its laws the conduct of the respondent comes within an offence on this list. This Court must, barring some obvious and manifest error, accept the marking of the box as precluding any need for verification of double criminality.

The only question is whether or not there must be alleged a trafficking in such documents before this box can be ticked. I believe not. If one looks at the list of offences coming within Article 2.2 of the Framework Decision it is clear that in several instances on this list more than one element exists. See for example “Illicit trafficking in weapons, munitions, and explosives”. Let us suppose that a person was sought to face prosecution in respect of trafficking guns, could it be rationally suggested that because he/she was not charged with trafficking munitions or explosives in addition to guns this box could not be appropriately ticked? I think not. Another example is “Sexual exploitation of children and child pornography” and the same conclusion must be obvious. There are other similar categories which can be pointed to. It would be completely contrary to the spirit of the Framework Decision and the purpose of setting out these categories of offences for which double criminality is not required to be verified to conclude otherwise.

4. Breach of fundamental rights arising from the withdrawal of the first warrant, breach of fair procedures, and abuse of process
I have already set out the history of events following the arrest of the respondent on foot of the first warrant, following which after the respondent had spent some nine months in custody, that warrant was withdrawn, and that immediately upon his release from that warrant he was re-arrested on foot of the second warrant which had in fact been issued in France on the 25th June 2008 (but not transmitted to the Central Authority here) before the respondent was first arrested on foot of the first warrant on the 14th July 2008. Indeed, that first warrant was not even endorsed for execution until the 4th June 2008, which post-dated the trial and conviction on the 21st May 2008. Mr O’Higgins has laid emphasis also on the fact that it was not until the respondent himself learned that he had in fact already been convicted in his absence on the 21st May 2008 and brought this to the attention of the Central Authority here that the first warrant was withdrawn by the French judicial authority, since it sought surrender for the purpose of prosecution. Mr O’Higgins submits that at all times it was incumbent upon the issuing judicial authority to keep the Central Authority here informed of relevant events, and in particular that by April 2008 it had been known to the French Court that the trial of the respondent was to take place, and after the 21st May 2008 that he had actually been tried and convicted in his absence. He refers also to the fact that it is clear that even in July 2008 additional information arrived from the issuing judicial authority in relation to a bail application by the respondent following his arrest on the first warrant, and that the French Court therefore was aware that the respondent had been arrested on foot of that warrant which sought his surrender for the purpose of prosecution and knew by then that he had in fact already been tried and convicted, and yet failed to inform the Central Authority here or this Court that this was the case.

He refers also to the fact that the second warrant, though issued in France on the 25th June 2008, was not in fact transmitted here until the 21st November 2008 so that it could be available for endorsement here immediately after the respondent was to be released following the application to withdraw the first warrant, and that this delay has caused the respondent to be in custody longer than he would have been had the second warrant been acted upon immediately it became known that the first warrant had ceased to be a correct basis for seeking surrender.

This series of events is submitted to constitute such a breach of the respondent’s fundamental right, including that of fair procedures, to amount to such egregious circumstances as to prohibit his surrender under s. 37 of the Act, and that it amounts to an abuse of process generally.

Mr Murphy submits that there is no evidence in the present case that what happened amounts to such egregious circumstances as to require this Court to refuse to order surrender on foot of the second warrant. He contrasts the facts and circumstances of this case with the circumstances existing in the case of Trimbole v. Governor of Mountjoy Prison [1985] I.R. 550 where there was shown to have existed a planned operation to hold the person in custody while extradition arrangements were being entered into between this State and Australia. He submits that the facts of the present case fall well short of demonstrating any conscious and premeditated plan on the part of France to keep the respondent in custody on foot of the first warrant until it could be withdrawn and he could be re-arrested on foot of the second warrant. He refers also to the need to accord mutual respect and a high level of confidence in the judicial authorities in France under the Framework Decision, and that the respondent has not discharged the heavy onus upon him to show that there has been an abuse of process by the French judicial authority.

There is no doubt in my mind that the manner in which the French court proceeded to try and convict the respondent in his absence where it must be taken as being aware that his surrender had been sought on foot a European arrest warrant for the purpose of prosecution, and without keeping the Central Authority here appraised of these developments is unsatisfactory and should not have happened. It led to a situation whereby the respondent was arrested on foot of the first warrant, it having been endorsed for execution here on the 4th June 2008, which was after the respondent had been convicted and sentenced in his absence. It seems clear from the information received by the respondent’s solicitor that even by the 9th April 2008 the French court had listed the case for trial on the 21st May 2008. The first warrant was endorsed for execution by the High Court on the 4th June 2008 after which on the 14th July 2008 the respondent was arrested. It must be presumed that the Central Authority would have kept the issuing judicial authority appraised of these developments. In fact there is evidence to show that at the end of July 2008 the issuing judicial authority has provided additional information to the Central Authority here in relation to opposing an application for bail being brought by the respondent, and yet no information about his in absentia trial and conviction was communicated. That is unsatisfactory to say the least. In fact, to make matters worse, it is clear that even by the 25th June 2008 the second warrant had been issued by the same judicial authority, and that was before the respondent had been arrested on foot of the first warrant. For some reason that second warrant was not transmitted to the Central Authority here until the end of November 2008.

What occurred in this case as outlined above ought not to have happened in the way they did. Clearly, the French judicial authority ought to have informed the Central Authority here, at least shortly after the 9th April 2008 when the respondent’s trial was listed for hearing on the 21st May 2008 that it wished to withdraw the first warrant (it having not been endorsed for execution by that date) to await the outcome of the trial, which would have permitted it to send over a second warrant in the event that surrender was thereafter being sought for the purpose serving any sentence imposed upon the respondent. That would have avoided the respondent being arrested and held in custody here needlessly on foot of the first warrant.

Despite these criticisms which I consider justifiable in relation to how this matter was dealt with, and of course I make no criticism whatever of the Central Authority here who are blameless, it is another matter altogether to conclude that as a result the surrender of the respondent must be prohibited on the basis of a past breach of fundamental rights and/or an abuse of process. Section 37 (1)(a) and (b) of the Act provide that:

“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) ………”

I cannot conclude that his surrender would be prohibited under this provision because of the events which occurred. The only scope for refusing to order surrender might be where the Court concluded that there had been so gross or egregious an abuse of process on the part of the issuing judicial authority as to require this Court to refuse to act upon the second warrant. There is no such compelling evidence in this case. The farthest this Court can go in my view is to say that matters were not dealt with as efficiently or as appropriately as they ought to have been, and that this is to be regretted. That however is an insufficient basis for refusing to order surrender.
It is to be noted also that Article 26 of the Framework Decision provides that:

“Article 26 Deduction of the period of detention served in the executing Member State
1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.

2. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 7 to the issuing judicial authority at the time of the surrender.”

In so far as the respondent was in custody here on foot of the first warrant for the period of question, it appears that the French state is obliged to deduct “all periods of detention arising from the execution of a European arrest warrant” from any period the respondent may serve upon surrender. In the following point of objection, Mr O’Higgins seeks to cast doubt as to whether this Article imposes the obligation to deduct only in respect of a period spent in detention in relation to the warrant before the Court now (i.e. the second warrant) and I will come to that. I just refer to that Article now in the context of the abuse of process point. In a case of a conviction and sentence case it is relevant. It may not be of much use to another respondent who is held in custody here on foot of a warrant which seeks his surrender for prosecution and which is subsequently withdrawn and replaced by a second warrant, since such a person may ultimately be acquitted at trial, and there would be no sentence from which the period of detention could be deducted. However, I need not speculate what consequences might flow from such an occurrence. For present purposes, it is not relevant.

5. No guarantee that time spent in custody on foot of the first warrant will be deducted from any sentence required to be served by the respondent:
It is submitted that in circumstances where the respondent has already spent some nine months in prison here following his arrest on foot of the first warrant the obligation upon the French authorities under Article 26 of the Framework Decision to deduct from any period of the sentence to be served following surrender on foot of the second warrant is not certain, and that the respondent may suffer prejudice as a result. Mr O’Higgins has characterised that obligation as one to deduct any period of detention spent by the respondent on foot of the warrant before the Court, namely the second warrant. I do not accept that this is a proper interpretation of the obligation identified in Article 26 which is already set forth above. It explicitly states that “the issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed”. (my emphasis)

There are many occasions when a person is arrested on foot of two warrants and is surrendered on foot of both, and the obligation clearly covers that situation because it refers to “a European arrest warrant”. But there is no basis for concluding that simply because an early warrant has been withdrawn and is replaced by a second warrant, that a period of detention spent in relation to the earlier warrant is excluded. Article 26 is clear in this regard, and it is to be presumed that the French state will honour its obligations under the Framework Decision. I have no doubt but that the Central Authority here will in due course, and in the normal way, provide the French authorities with all information regarding all periods of time spent by the respondent on foot of both the first and the second warrant to enable that obligation to be fulfilled upon any surrender ordered.

6. No sufficient undertaking under s. 45 of the Act (guarantee of retrial) has been provided:
It is uncontested in this case that his trial, conviction and sentence took place in absentia and in circumstances where he was not notified of the date, time and place of that trial. The provisions of Section 45 of the Act are therefore engaged on this application. That section provides:

45.—A person shall not be surrendered under this Act if—
(a) he or she was not present when he or she was tried for and convicted of the offence specified in the European arrest warrant, and

(a) (i) he or she was not notified of the time when, and place at which, he or she would be tried for the offence,

or

(i) he or she was not permitted to attend the trial in respect of the offence concerned,

unless the issuing judicial authority gives an undertaking in writing that the person will, upon being surrendered—

(i) be retried for that offence or be given the opportunity of a retrial in respect of that offence,

(ii) be notified of the time when, and place at which any retrial in respect of the offence concerned will take place, and

(iii) be permitted to be present when any such retrial takes place.” (my emphasis)

The respondent submits that the warrant does not contain any guarantee or undertaking by the issuing judicial authority that upon surrender the respondent will be retried or given the opportunity of a retrial in respect of the offences for which he has been convicted and sentenced in his absence.
The warrant states in paragraph b. dealing with a “decision passed in absentia” the judicial authority states in the English translation under the heading “state the nature of the guarantees”:

“may enjoy the benefit of a new trial if the above judgment is set aside”.

I should perhaps refer to the warrant in the French language (i.e. the original) and to what is stated in relation to the “guarantee. It states:

“Peut bénéficier d’un nouveau process s’il forme opposition”.

Mr Murphy has referred to these words and submits that this means that the respondent will be entitled to a new trial if he enters an opposition to the charges, and that this is sufficient for the purpose of s. 45 of the Act.

The English translation does not appear to me to precisely reflect the wording in the French language. Nevertheless, the English translation is marked as an official translation, and I am entitled to accept the translation as reflecting the entitlement as set out. The use of the word “may” falls short of a guarantee, and the reference to “if the above judgment is set aside” suggests a measure of discretion on the part of a judge on an application to set aside the judgment.

A letter from the issuing judicial authority dated 24th November 2008 to the Central Authority provides some further information about this. It states:

“If GRITUNIC Igor is surrendered to the French authorities, the warrant for arrest will be executed according to the following way: The judgment will be notified to him and he will have the possibility to file a petition to have the judgment set aside in order to stand for trial while being totally present with the assistance of a lawyer if he so requests, the initial judgment being quashed. Awaiting a new trial, the judge in charge of liberty and detention will decide, after having heard all parties involved, whether he should be released under probation or put in detention pending trial.” (my emphasis)

Mr Murphy for the applicant has referred to this statement and submits that the French language version of the “guarantee” read in conjunction with this letter removes any ambiguity which might be seen to exist from the English version of the “guarantee”. He has submitted also that if the Court has any doubts about the nature of the guarantee contained in the warrant it should exercise its powers under s. 20 of the Act to seek additional information to clarify the matter.
In relation to that submission it is relevant to state that in relation to this issue raised by the respondent, the Central Authority here, according to evidence before me, attempted by letter to the issuing judicial authority to obtain an actual undertaking for the purpose of s. 45 of the Act. In a letter dated 27th March 2009 the Central Authority sought such an undertaking and actually attached to its letter a form of undertaking mirroring that specified in the section. I am told that no response was received from the issuing judicial authority, and, as I understand it, in spite of reminders. In order to resolve this unsatisfactory situation the Central Authority wrote to Eurojust in order to seek assistance in trying to clarify exactly what form of guarantee exists as to e retrial. A letter was received from Eurojust which indicated that this body had received some information from the issuing judicial authority and it communicated that information by letter to the Central Authority by way of assistance. Upon objection by Mr O’Higgins to the admissibility of this information, through a third party, and therefore necessarily hearsay, I concluded that the letter from Eurojust should not be admitted as evidence of what procedures exist under the French Penal Code of Criminal Procedure, as information gained from Eurojust does not appear to be contemplated by s. 20 as a source of information which may be sought and obtained either by the Central Authority or this Court. It does not seem to me that this second-hand information could constitute the necessary undertaking or even guarantee that the respondent will have the opportunity for a retrial if surrendered. I therefore did not read it and handed back the letter to the representative from the Chief State Solicitor’s office who was in attendance at the hearing.

Section 45 of the Act was one of the issues which arose for consideration by the Chief Justice in his judgment in Minister for Justice, Equality and Law Reform v. Sliczynski, (Unreported, Supreme Court, 19th December, 2008). While the issue in that case was whether or not the notification to the respondent was sufficient not to invoke the provisions of s. 45, nevertheless, in relation to the meaning of s. 45 the learned Chief Justice stated at page 18:

“The section is very specific. It requires that “… the issuing judicial authority gives an undertaking in writing” that the person surrendered will be retried for the offence or be given an opportunity of a retrial in respect of the offence. The section does not require proof that the law of the requesting State provides for a retrial of the offence, or provides for the surrendered person to have an opportunity of a retrial, (and in any event Polish law appears to provide for a review of sentence only on appeal, if taken within time) but requires the Judicial Authority to give a written undertaking. The absence of an undertaking is a fatal flaw in the request concerning the fourth offence.”

In his judgment in Minister for Justice, Equality and Law Reform v. Marek, (Unreported, Supreme Court, 5th February, 2009), the Chief Justice considered the nature of the retrial which was referred to in the undertaking provided by the judicial authority in that case, and in the light of some additional information provided as to the nature of that retrial, and concluded that there was insufficient information from which the Court could conclude that the respondent would receive a retrial of a kind which could be regarded as a trial de novo – “a trial as if he was on trial for the first time for the offence or offences in question”.
As I have said, Mr Murphy places reliance on the contents of the letter dated 24th November 2008 which I have set forth already. He submits that this clarifies the position and that it constitutes a sufficient guarantee that the respondent will be retried if he applies for a retrial upon surrender.

I do not read the letter as guaranteeing that he will receive a retrial if he applies for one. It simply states that “he will have the possibility to file a petition to have the judgment set aside in order to stand for trial while being totally present with the assistance of a lawyer if he so requests, the initial judgment being quashed”. Since this letter is only to clarify what is contained in the warrant and not itself an undertaking, I cannot ignore the fact that in the warrant it clearly states that the respondent “may enjoy the benefit of a new trial if the above judgment is set aside”.

It is a great pity that the issuing judicial authority did not reply to the letter in March 2009 from the Central Authority which appended an undertaking in the form required by s. 45 of the Act. One might infer, but perhaps wrongly, that the failure to provide it meant that the judicial authority was not in a position to provide such a clear and unequivocal undertaking required by s. 45 of the Act. The question remained whether, before deciding that the respondent’s surrender could not be ordered because there is no undertaking provided, this Court should, as the Central Authority has attempted to do, again seek such an undertaking under the provisions of s. 20 of the Act.

Given the spirit of the Framework Decision which is a system of surrender between judicial authorities in Member States and based on the principle of mutual recognition and a high level of confidence between Member States, it seemed to me to be appropriate for this Court or the Central Authority at the Court’s request, to once again communicate with the issuing judicial authority to the effect that this Court has concluded that absent an undertaking which satisfies the requirements of s.45 of the Act, the Court is not in a position to order the surrender of the respondent pursuant to this warrant. A limited time should be allowed for the receipt of such an undertaking, particularly since the respondent is in custody awaiting the Court’s decision.

I therefore adjourned the matter further and remanded the respondent in custody for a further period to allow time for an appropriate undertaking to be sought and obtained.

Further correspondence with the French authority:
By letter dated 25th May 2009, the Central Authority wrote to the issuing judicial authority stating that under Irish law a formal guarantee as to the right to a retrial must be given and that a statement to that effect, as provided previously, does not suffice. The French authority was informed that the matter had been adjourned so that this guarantee could be provided in the form of the specimen guarantee previously supplied, and a further copy of that form of undertaking was attached to this letter.

In response to this letter the issuing authority replied by letter dated 5th June 2009, not by completing the pro forma undertaking in the form provided, but as follows:

“UNDERTAKING in compliance with Article 5(1) of the Framework Decision of the 13th of June 2002
I, the undersigned, Nicole Blondet, Magistrate of the Judiciary, Deputy Public Prosecutor to the Paris County Court, Legal Authority for issuing a European Arrest Warrant issued against Igor Gritunic, born, April 18, 1980 in Rautel (Moldavia) authorise:

GRITUNIC Igor, sentenced on 21 May 2008 by the 14th chamber of the Paris County Court to 5 years imprisonment for gravely living off immoral earnings, that following his handing over, will be retried for the events at the origin of the European Arrest Warrant and will have the possibility of a new trial with the assistance of a lawyer.

And that GRITUNIC Igor be informed of the date, the time and place where his new trial will take place and be permitted to attend his own trial.

I emphasise that all these guarantees have been given in my previous correspondence.”

While the French authority wrote in this form rather than by mere completion of the pro forma undertaking supplied, the letter does confirm the matters contained in the form of undertaking provided, and which reflects the provisions of s. 45 of the Act. If that was where matters remained, this Court would not have had to consider the matter further. However, it is not so simple because, though unsolicited by the Central Authority, a further faxed document was received by the Central Authority on the 9th June 2009, not from Madame Blondet but rather from a Vice Procureur named F. Chaponneaux. That fax is in fact the form of undertaking provided by the Central Authority, and which has been signed by him but only after he made certain hand-written alterations to the form. That undertaking, taking account of these alterations, undertakes that the respondent will be retried for the offences set out on the European arrest warrant or be given the opportunity of a retrial in respect of those offences if he wants a new trial. The form concludes with the words “this matter is already in the European Warrant”.
However, it can be seen clearly from the faxed form sent that M. Chaponneaux has put a line through the two sentences on the form provided which would have undertaken “(ii) that the respondent would be notified of the time when, and place at which any retrial in respect of the offences concerned will take place, and (iii) be permitted to be present when any such retrial takes place” – these latter two matters being required to be undertaken for the purpose of s. 45 of the Act.

Understandably, the receipt of this further fax from the French authority, albeit from a different person there, caused concern to the Central Authority here, as it appears to dilute the undertaking given by M. Blondet dated 5th June 2009 already received. Therefore by letter dated 15th June 2009, The Central Authority wrote again, referring to the document received on the 9th June 2009 by fax and asked:

“Could you confirm in writing (by fax) that the document previously transmitted on the 05/06/09 is the “real” undertaking & the most recent one (09/06/09) was sent by mistake.”

M. Chaponneaux replied by letter dated 17th June 2009 stating at the outset that he could not understand the request made of him as above. He goes on to refer to the initial request contained in the letter from the Central Authority dated 25th May 2009 for a guarantee that the respondent would receive a new trial, and states that such a commitment was given by letter dated 5th June 2009 by Madame Blondet, and he refers to the fact that she was informed on that occasion that because of the urgency of the request it was unnecessary for her to provide a translation of that undertaking. He then refers to a letter dated 9th June 2009 from the Central Authority (which I have not seen as yet) in which it would appear that a translation was requested. He goes on:

“In order to comply as soon as practicable, my colleague being unavailable, I filled in the form by hand and enclosed it with a previous correspondence. Admittedly the result is not perfect but what matters is the contents and not the form. It is therefore not a mistake but the desire to expedite things quickly.
Please advise me if you prefer a translation of the correspondence of 5 June 2009.

I should add, for your own information and that of the court, that requesting such commitment is offensive insofar as it comes down to suspecting that a magistrate will not comply with his own law.

Indeed, as already stated, a person subjected to an EAW and to a judgment in absentia will be brought before a magistrate of the Prosecution Department who will notify the EAW to her and enquire whether she will petition to have said judgment to be set aside and if yes, she will be summoned to court. The person will be brought with the assistance of an attorney or a public defender free of charge before the Judge in charge of Freedom and Detention who will decide whether or not she should be committed. This procedure is imposed by the Code of Penal procedure. It is therefore impossible that a magistrate who has taken the oath “to fully and faithfully meet the obligations of his functions, strictly protect the confidentiality of consultations of judges and in all occasions behave as a loyal and respectable magistrate” should disregard the law. And obviously in France the accused enjoys the assistance of a lawyer before the court.”

That was the state of play when the matter came back before me for further consideration on the adjourned date, namely the 17th June 2009, and having received this further correspondence and having heard some brief submissions in relation thereto, I adjourned same to today’s date so that I could consider the sufficiency of the information in the context of s. 45 of the Act. I indicated on that occasion that if the matter was confined to what was contained in the undertaking signed by M. Blondet on 5th June 2009, and without reference to the further document received from M. Chapponneaux on the 9th June 2009, I would have in all probability have been satisfied as to this matter, but I would have to consider the matter in the light of all correspondence received. I adjourned the matter to today for that purpose, indicating that if any further letter was received in the matter from the French authority I should be supplied with same in the intervening period.
Since that date I have been furnished by the Central Authority with the following letter dated 25th June 2009 which is signed by Madame Blondet:

“Answering your last letter, I confirm that my letter dated 5th June 2009 sets out the true position in accordance with French law in relation to the right of a retrial following surrender where there has been conviction in absentia.”

One must make all due allowance for the fact that legal systems differ as between this State and France and indeed all other Member State of the European Union, and further difficulties can arise simply because of translation difficulties. But I must say that it seems to have been an extraordinarily difficult and time-consuming matter to receive an undertaking in the form required by s. 45 of the Act. I must emphatically state that there is absolutely no suggestion emanating from this Court or the Central Authority that a magistrate in France would not comply with its own law, and certainly no offence was intended by attempting to seek clarification as to what that law actually is as far as the right to a retrial is concerned. This Court must satisfy itself under Irish law that the undertaking by the French authority meets the very specific requirements of s. 45 of the Act, which gave effect here to Article 5.1 of the Framework Decision. That is an optional article, and the Oireachtas has opted to make it a requirement that an undertaking as to a retrial is provided in the terms set forth in s. 45 of the Act. I have no doubt that the French authorities respect that law just as this Country respects French law. This Court is required under Irish law to be satisfied in this regard, and I formed the view that as contained in the European arrest warrant itself the position was not sufficiently clear to satisfy the requirement for an undertaking in the form provided to the French authority.
The fact now is that by Undertaking dated 5th June 2009 the necessary undertaking has been given. The later communication received by fax on the 9th June 2009 from M. Chaponneaux, while obviously intended to assist matters, served only to again “muddy the waters” so to speak. It was appropriate to clarify the matter once again, and Madame Blondet has done that by her letter dated 25th June 2009. I am satisfied that the undertaking dated 5th June 2009 from her satisfies the requirements of s. 45 of the Act.

For all these reasons, I am satisfied that an order for the surrender of the respondent can and must be made, and I will so order.

 

Minister for Justice, Equality and Law Reform v. Stafford

 

[2006] IEHC 63 (14 February 2006)

Judgment of Mr Justice Michael Peart delivered on the 14th day of February 2006:

The respondent was arrested and brought before this Court on the 12th April 2005 on foot of a European Arrest Warrant issued forth of Bow Street Magistrates Court in London, England dated the 18th March 2005. This warrant had been duly transmitted to the Central Authority in this State, namely the Minister for Justice, Equality and Law Reform as provided by s. 6 of the 2003 Act, and was endorsed for execution by Order of this Court made on the 25th March 2005 following an application for endorsement made by the Central Authority.

The arresting officer is Sgt. Anthony Linehan of An Garda Siochana, and he has filed an affidavit in relation to the arrest of the respondent for the purpose of this application now for an order under s. 16 (1) of the 2003 Act for the delivery of the respondent to the appropriate person in the issuing State, the United Kingdom, authorised to receive him.

In the said warrant there are six offences set forth in respect of which the respondent’s surrender to the United Kingdom is sought. These are unlawful wounding, kidnapping, false imprisonment, rape, sexual touching, and murder.

Following the bringing of the respondent before the Court following his arrest on the 12th April 2005, the respondent was remanded from time to time and this application was heard by me on the 22nd July 2005. Points of Objection had been filed and delivered on the 26th April 2005. These points were as follows:

1. That there is no evidence to substantiate offences 2 to 6 inclusive, namely kidnapping, false imprisonment, rape, sexual touching and murder.
2. That the Warrant is not in the form required by section 11(1) of the 2003 Act and in particular is not in the form set out in the Annex to the Framework decision in that it does not specify any or any adequate description of the circumstances in which the offences were committed, including the time, place and degree of participation in the offences by the requested person.
3. That there is insufficient information provided in relation to the aforesaid offences 2 to 6 inclusive and the warrant does not comply with the provisions of the 2003 Act, and in particular section 11(e) and section 11(2) thereof.
4. That the Court should pursuant to section 20(1) of the 2003 Act require the issuing judicial authority to provide it with appropriate additional documentation or information.
5. That the applicant is required to prove the relevant correspondence in relation to the offences appearing in the warrant.
6. That Mr Stafford is currently charged with offences in this jurisdiction and has been remanded in custody by the District Court.
7. That the surrender of the respondent would constitute a contravention of the Constitution and in particular Article 38.1 thereof.
Michael O’Higgins SC for the respondent applied at the hearing of this application before me for liberty to amend his Points of Objection by adding two additional points. Firstly he submitted that given that the respondent was arrested on the 12th April 2005 and brought before the Court, the 60 day time limit (or in some circumstances 90 days) specified by the Framework Decision has expired. At the time, that point was the subject of an appeal before the Supreme Court. It was suggested by Counsel for the respondent that it would be appropriate to await the decision of the Supreme Court on the point, before delivery of this judgment, as it could affect the capacity of this Court to make the order sought herein, even if this Court is otherwise satisfied that an order should be made under s. 16 of the Act.I readily agreed to that course.

By now judgment has been delivered by the Supreme Court in the case of Dundon to the effect, inter alia, that the fact that the period of sixty or ninety days may have been exceeded is not a bar to an order for surrender being made under s. 16 of the Act.

Secondly, Mr O’Higgins submitted that the endorsement for execution of the Warrant received from the United Kingdom has been signed by a Registrar of the High Court and not a judge of the High Court. However, by Statutory Instrument 23 of 2005 the form of endorsement is provided for at s.2 (3) thereof, and this form provides for signature by “Registrar”. That point is no longer pursued by the respondent.

Patrick McCarthy SC on behalf of the applicant makes application for an order under section 16(1) of the Act. Before making such an Order this Court must be satisfied that the person before the Court is the person in respect of whom the warrant was issued. Mr O’Higgins has conceded that this is so.

The Court must also be satisfied that the warrant was endorsed in accordance with s. 13 of the Act for execution. I am so satisfied.

As this is not a case of a conviction of the respondent in absentia in the United Kingdom, the undertaking referred to in s. 16(1)(c) of the Act is not required. Neither is the Court required in this case to refuse to surrender the respondent as provided in s. 16(1) (d) of the Act, and neither is his surrender prohibited by Part 3 of the Framework Decision (including the recitals thereto).

The matters which require the Court’s determination are really confined to correspondence of offences, and whether the European Arrest Warrant on foot of which the respondent was arrested is in conformity with that provided for by Framework Decision.

Correspondence:

By Article 2 of the Framework Decision, it is provided that a large number of offences set forth in that article shall “and without verification of the double criminality of the act, give rise to surrender”. In other words correspondence is presumed, provided that in this State such offences are punishable by at least three years’ imprisonment. The offences of murder, kidnapping and rape are specifically named in this article as offences in which double criminality does not need to be verified. Also included in the list is one referred to as “illegal restraint” which I take to mean or include “false imprisonment”, but in any event I am satisfied that the facts as set forth in the warrant are sufficient to show that if committed in this State they would give rise to a charge of false imprisonment contrary to common law. In respect of the offence of unlawful wounding, the facts as set forth in the warrant would in my opinion give rise to a charge of assault causing serious harm under s. 4 of the Non-Fatal Offences Against the Person Act, 1997. In respect of the offence charged of “sexual touching without consent” I am of the view that the facts set forth in the warrant would if committed in this State give rise to an offence of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act, 1990.

I am satisfied that the minimum gravity requirement under the 2003 Act is met in respect of all the offences for which the respondent is sought to be surrendered.

The contents of the warrant:

Mr O’Higgins has submitted that the contents of the European Arrest Warrant which has been endorsed and executed in this State is not in conformity as to its contents with the form as provided for such a warrant by the Framework Decision. He has at the outset highlighted the need as recognised in the jurisprudence of our Courts to do things right in matters which affect the fundamental rights of a person, particularly where the liberty of the person is at stake. In the present case he has pointed to the radical effect of the extradition process on the liberty of the person in a situation where, as in this case, a person can be arrested and incarcerated here not on the basis of anything alleged to have been done in this State but on the basis that somebody in another State alleges that the person has done something unlawful there. For that reason he submits that the onus of establishing that everything required under the 2003 Act and the Framework Decision has been done as required and specified in that legislation. Having said that, Mr O’Higgins has acknowledged that the bar is set at a low level in terms of what is required to be shown in the warrant under the Framework Decision. Nevertheless he submits that there must be some minimum level of evidence available from the contents of the warrant to show that an offence has been committed. He accepts that it is not necessary that a prima facie case need be made out in respect of the offences charged, and he is not making what he referred to as “a strength of case” argument, but he is saying that there must be sufficient contained in the warrant and any accompanying documents so that this court can be satisfied as to the existence of facts which could give rise to the offences being charged, and that in the present case this is not done. He submits that the warrant does not conform to the requirements of the Framework Decision.

The starting point for this submission is s. 11 (1) of the 2003 Act, as substituted by s. 72(a) of the Criminal Justice (Terrorist Offences) Act, 2005 (“the 2005 Act”) which provides:

“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.”

Section 11(1A), as inserted by the 2005 Act sets out in paragraphs (a) to (g) a number of matters, which are in any event specified in the prescribed form of warrant in the Framework Decision, which a European Arrest Warrant shall specify, such as the name and nationality of the person in respect of whim it is issued, the name and address and contact details of the issuing judicial authority, the offence to which the warrant relates, and the penalties applicable to the offence. The other matter included at paragraph (f) of this section is one upon which Mr O’Higgins relies and it relates to “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…” (my emphasis)

This requirement in paragraph (f) of s.11(1A) of the Act, as amended is mirrored in the prescribed form of warrant contained in the Framework Decision at section (e) thereof where the person completing the form of warrant is required to provide details under the following heading:

“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”. (my emphasis)

Mr O’Higgins then refers to the form of warrant on foot of which the respondent was arrested and to the fact that in section (e) of the warrant this ‘heading’, following which details must be set forth, has omitted therefrom the words “”and degree of participation in the offence(s), even though there follows in section (e) of the warrant nevertheless three full pages of narrative intended to no doubt provide all the detail required. But Mr O’Higgins submits that in fact it may be no accident that has resulted an abbreviation of the ‘heading’, because, in his submission, the details provided, albeit extensive, do not in fact disclose any “degree of participation in the offence(s)” by the respondent.

Mr O’Higgins has made it clear, following a question from me, that his objection is not one based simply on the technical defect, if it be such, that the ‘heading’ has been abbreviated from the form of warrant prepared and transmitted. His objection is that the necessary details have not been provided in the narrative. He is simply pointing to the abbreviation of the ‘heading’ in the form used, and submits that this perhaps is indicative of the fact that the person preparing the warrant was conscious that the narrative being provided did not give all the details which the ‘heading’ required to be inserted.

It is submitted that this part of the warrant must provide a nexus between the person named in the warrant and the offence(s) specified, and at least in some respects it does not do so in the present case. In order to examine this submission, I must set out some of the detail provided in the narrative section of the warrant. Firstly it is to be recalled that the offences charged are kidnapping, false imprisonment, murder, rape, unlawful wounding, and sexual touching.

The unlawful wounding is in respect of a man, David Lee Goodall on the 25th July 2004. Mr O’Higgins’s submissions do not, and in all reality could not relate to this charge since the details given clearly make out a degree of participation in an assault on Mr Goodall which resulted in an injury, and it recites date, time and place.

The remaining offences are in respect of a lady named as Michelle Gunshon and between the 3rd December 2004 and the 7th December 2004. Her body has never been found. The narrative indicates that on the 3rd and 4th December 2004 she was in the company of two other male work colleagues in Birmingham. They were involved in some work at the Birmingam Exhibition Centre and all stayed at a premises called The Dubliner Public House. She stayed in Room 2, Flat 3. On the 4th December 2004 they all finished work at 6.30pm and got back to the hotel at 7.15pm, travelling in her car, a blue Ford Escort. She parked her car in a street between these premises and a Coach Station. They all had some drinks, following which she went to her room. She was last seen at 9.30pm on the 4th December 2004 when one of the men, named Finney, went ot her room to borrow money from her. At 10.05pm her partner (not one of the two work colleagues) rang her and she informed him that she was tired and was going to bed. On the 6th December she was reported missing, and her work colleagues stated that they saw her belongings and her mobile phone (with 27 missed calls displayed thereon) in her room at 3pm on the 6th December 2004, but that by 5pm that day these items had been removed.

The narrative goes on to say that CCTV footage was recovered from the surrounding area and that it shows her car being driven at 7.05am on the 5th December 2004from where she had parked it. This footage is said to show “one person” approaching the car and getting into it, and that it is not possible to say if this person is male or female.

The narrative then states that at between 8.29 am and 9.08am on the same date this car is spotted on speed cameras coming into the city centre, and that this footage has been examined by the licensee of the Dubliner Public House and that he has identified the driver of this car as the respondent, Martin Stafford.

She did not turn up for work on the 5th December 2004, thereby leaving her work colleagues stranded for transport back to London, and she has not been seen since.

The narrative goes on as follows:

“On 7 December 2004 Michelle Gunshon’s car was found on a street near to The Dubliner. On examination blood was recovered from a jacket in the boot, blood was also recovered from the front drivers door frame and from the steering wheel. This is Michelle’s blood. Semen was also recovered and this matches a profile held on the DNA database for Martin Stafford.

Martin Stafford had been staying at The Dubliner in Room 5, Flat 3 and had stayed at the Pub from time to time under a loose agreement with the landlord Paddy Finn, whereby he would walk the family dog and collect glasses in return for free accommodation. He did not stay at The Dubliner from Sunday 5 December 2004 to Wednesday 8 December 2004. On 8 December 2004 he was seen by a witness, Sheila Mohan at the main coach station where they both travelled to Dublin via Holyhead. Mr Stafford told Sheila Mohan not to tell anyone that she had seen him.

On 23 February 2005 a further search was carried out for evidence, and property belonging to Michelle Gunshon was recovered on a small piece of waste land next to The Dubliner Public House. This included her wallet and bank cards, a bag of mens clothing, a tube of mascara, a T mobile telecommunications paperwork (sic) and two kitchen knives with a serrated edge.

Although Michelle Gunshon’s body has not been found, the circumstantial evidence is such to render the commission of her murder certain and leave no grounds for reasonable doubt.”

Of some relevance also is a statement in the warrant at (e) thereof by the issuing judicial authority as follows:

“I am satisfied that a Crown Prosecutor in the Crown Prosecution Service, whose function is to decide whether or not to prosecute an individual for the alleged commission of a criminal offence, has decided to charge the person named herein and to try him for the offences specified above and for which this warrant is issued.”

However, in relation to the objection raised by Mr O’Higgins it is the contents of the above narrative of the facts thought to give rise to the charges which need to be considered for the purpose of seeing if they satisfy the requirement to provide within the warrant a description of “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…” (my emphasis)

Mr O’Higgins submits that there is only brief reference to the respondent in this longish narrative. He has been identified as the driver of Ms. Gunshon’s car at 8.29am and 9.08am on the 5th December 2004, as it proceeded into the city centre, although it was not possible to identify who was driving that same car one hour and fourteen minutes earlier away from Mill Lane where she had parked it. But the only other reference to the respondent is that semen which on examination had a DNA match to DNA held on a database for the respondent. Mr O’Higgins says that this is not evidence of rape, since it says nothing about lack of consent to any sexual activity, and there is nothing in his submission to indicate that anything which happened in the car, if anything happened, was not consensual. He submits that this narrative cannot satisfy the requirement in the specimen warrant annexed to the Framework Decision to give a description of the facts which includes “the degree of participation in the offences by the respondent. He submits also that there is nothing which speaks to the charge of murder.

I have mentioned it already, but I should say again that Mr O’Higgins is not making a “strength of case” argument, but is simply relying on the lack of conformity by the UK authority with the requirements of the Framework Decision, and that this Court should not too easily assume that everything is in order where so little connection is made to the respondent in an otherwise substantial narrative of the background to the charges.

Conclusions:

The warrant transmitted to this State by the UK authority must be looked at in the context of the Framework Decision itself, effect to which was given by the passing of the 2003 Act. In the Preamble of the Framework Decision it speaks at paragraph (5) thereof of replacing extradition between member states, with “a system of surrender” so as “to remove the complexity and potential for delay inherent in the present extradition procedures.”

Paragraph (6) provides:

“The European arrest warrant provided for in this Framework Decision 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.”

It goes on at paragraph (10) of the Preamble to say as follows:

“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 consequences set out in Article 7(2) thereof.”(my emphasis)

Article 1.2 reflects this aspiration of mutual recognition of judicial instruments emanating from an issuing state when it provides:

“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.”

I set forth these paragraphs from the Preamble in order to highlight the change brought about in the nature of the process of surrender between Member States with the introduction of the European arrest warrant.

I am of the view that the submission made by Mr O’Higgins fails to take adequate account of the principle of mutual recognition referred to in the Framework Decision. What is required to be included in paragraph (e) of the warrant, according to the specimen form of warrant annexed to the Framework Decision is a description of the circumstances in which the offences were committed, and this description should include details such as time, place and degree of participation by the requested person. The requesting judicial authority has stated in the warrant that the Crown prosecution Service has decided to charge the respondent and to try him for these offences. The principle of mutual recognition must be interpreted in a way which precludes this Court, except in the most obvious and glaring inadequacy and failure in the make any link between the person named in the warrant and the alleged offence, from seeking to go behind the description contained in paragraph (e) and in so doing questioning the bona fides of the warrant signed as it is by the issuing judge. Surrender, or extradition as it was formerly named, is something intimately linked to the comity of nations and comity of courts – a theme touched upon by Denham J. in her very lucid and helpful judgment in Attorney General v. Parke, unreported, Supreme Court, 6th December 2004 as to the nature of the process undertaken by the Court when hearing an application for the surrender of a person to another jurisdiction. She stated therein:

“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 two 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 back drop 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.”

Even though this was stated in the context of the now virtually defunct arrangements set forth in Part III of the 1965 Act (repealed by the 2003 Act), it remains pertinent and relevant to the new arrangements set forth in the 2003 Act.

Nevertheless this Court must consider an application under s. 16 of the Act in a manner which accords to the requested person due protection against any infringements of his fundamental and constitutional rights, so that the hearing is in due course of law.

The requirement that the warrant contains a description of the degree of the respondent’s involvement in the offences means just that – a description thereof. There is no requirement that a particular level of involvement be described in the sense of having to pass a certain threshold of involvement so as to show anything like a prima facie case. That would be to require a strength of argument demonstration. In my view the principle of mutual co-operation is consistent with the requesting authority being expected to show a degree of participation or involvement by the respondent in the offences set forth in the warrant. Beyond that it is a matter for the requesting authority, who in this case has stated that it has been decided to charge and try the respondent with the charges, to prove its case at trial beyond a reasonable doubt so as to dislodge the presumption of innocence which he presently enjoys as of right. To go further in my view and expect that the requesting authority should at this stage be required to set forth all of its proposed evidence in more detail is not something required by either the letter or the spirit of the Framework Decision.

The detail contained in the narrative to the effect that the respondent has been identified as being the driver in the missing person’s car on the morning of the 5th December 2004, combined with the fact that the semen which has a DNA match to the DNA of the respondent, as well as finding blood in the car, and the alleged conversation with Ms. Mohan on the way to Dublin is more than enough by way of degree of involvement in the alleged offences numbered 2 to 6 in the warrant in order to satisfy the requirement contained in the form of warrant provided for in the Framework Decision.

It follows that Point 4 of the Points of Objection fails, namely that the Court should, pursuant to the provisions of s. 20 of the 2003 Act require the issuing judicial authority to provide it with appropriate additional documentation or information.

Neither am I satisfied that the surrender of the respondent would constitute a contravention of the Constitution and in particular Article 38.1.thereof, as pleaded at Point 7 of the Points of Objection.

I am satisfied that there is nothing in Part 3 of the Act which prohibits the surrender of the respondent and neither is there any reason arising under ss.21A, 22, 23, or 24 of the said Act which should require that such an order be not made.

I therefore make the necessary order under s. 16(1) of the Act for the surrender of the respondent to a person of the United Kingdom authority duly authorised to receive him.

Approved: Peart J.

Minister for Justice and Equality v Busby

[2014] IESC 70
Judgment delivered on the 12th day of December, 2014, by Denham C.J.

1. On the 29th July, 2013, the High Court (Edwards J.) ordered the surrender of Adam Stuart Busby, the appellant/respondent, referred to as “the appellant”, to the United Kingdom, pursuant to a European arrest warrant.

2. The appellant was granted bail on the 3rd March, 2014. On a medical certificate being produced, he was not required to attend at the hearing of this appeal.

3. A European arrest warrant was issued by the United Kingdom on the 13th July, 2012. On the 17th July, 2012, it was endorsed before the High Court. The appellant was brought before the High Court on the 18th July, 2012.

4. The European arrest warrant seeks the surrender of the appellant for prosecution for offences which have been identified by the ticking of the box marked “terrorism” on the warrant.

5. The European arrest warrant certified:-

“that the offences are not extra-territorial offences”.
6. The circumstances in which the alleged offences were committed by the
appellant by reference to the law in Scotland were as follows:-

“Adam Busby is the self-proclaimed leader of an extremist group called the Scottish Liberation Army. His conduct giving rise to the offences is that:
1) On 27 November 2009 at the Scottish Sun Newspaper, the Guild Hall, 57 Queen Street, Glasgow he did, by means of telephone communication sent to Nicholas Sharp, an employee of the Scottish Sun Newspaper, Guild Hall, 57 Queen Street, Glasgow utter threats to said Nicholas Sharpe, did purport to represent an organisation called the Scottish National Liberation Army, and did threaten to contaminate the drinking water supplies of major English towns and cities with a noxious substance, with ‘the intention of inducing in said Nicholas Sharpe, and others, a belief that there would be danger to human life and a serious risk to human health.

2) On 20 December 2009 at the Scottish Sun Newspaper, Guild Hall, 57 Queen Street, Glasgow he did by means of telephone communication send to the Scottish Sun Newspaper, Guild Hall, 57 Queen Street, Glasgow a text message, the content of which he knew or believed to be false, with the intention of inducing in employees of said Scottish Sun Newspaper a belief that various packages containing caustic, poisonous or other noxious substance had been sent to a number of political figures, including the then Prime Minister of the United Kingdom, Gordon Brown, which was capable of endangering human life or of creating a serious risk to human health:

Contrary to the Anti-terrorism, Crime and Security Act 2001, Section -114(2)

3) On 15 April 2010 at the Press Association, 1 Central Quay, Glasgow he did communicate, by telephone, information to Victoria Mitchell, Deputy Editor of the Glasgow branch of the Press Association with the intent of inducing in her the false belief that a bomb, or other thing liable to explode or ignite, was present at the bridge at the Argyle Arcade in Glasgow.

Contrary to The Criminal Law Act 1977, Section 51(2) and (4).

4) On 15 April 2010 at the Glasgow branch of the Samaritans, 210 West George Street, Glasgow, he did communicate, by telephone, information to another person namely Margaret Foley, with the intent of inducing in her the false belief that a bomb, or other thing liable to explode or ignite, was present at The Hilton Hotel, Glasgow. Contrary to The Criminal Law Act 1977, Section 51(2) and (4).

5) On 9 June 2010 at the Edinburgh Evening News, Edinburgh he did communicate, by telephone, information to another person namely Simon Lyle, a Reporter there, with the intent of inducing in him the false belief that a bomb, or other thing liable to explode or ignite, was present at the Forth Road Bridge.

Contrary to The Criminal Law Act 1977, Section 51(2) and (4).

6) On 9 June 2010 at the Scottish Daily Express Newspaper, Glasgow, he did communicate; by telephone, information to another person namely Tom Martin, Executive News Editor, with the intent of inducing in him the false belief that a bomb, or other thing liable to explode or ignite, was present at the Erskine Bridge, Glasgow. Contrary to The Criminal Law Act 1977, Section 51(2) and (4).

7) On 9 June 2010 at the Scottish Sun, Guild Hall, 57 Queen Street Glasgow he did communicate, by telephone information to another person, namely Gail Cameron, a News Reporter there, with-the intent of inducing in her the false belief that a bomb, or other thing liable to explode or ignite, was present at the Erskine Road Bridge, Glasgow.

Contrary to The Criminal Law Act 1977, Section 51(2) and (4).

Incidents 2-7 were hoaxes: no noxious substances or bombs were found.”

7. The appellant has been prosecuted and convicted in the State for similar offences.
8. On the 29th July, 2013, the High Court (Edwards J.) ordered, pursuant to s. 16 of the European Arrest Warrant Act 2003, as amended, that the appellant be surrendered to such person duly authorised to receive the appellant on behalf of the United Kingdom of Great Britain and Northern Ireland.

9. On the 31st July, 2013, the High Court (Edwards J.) certified that the order of the 29th July, 2013, involved one point of law of exceptional public importance being:-

(i) Where an offence is deemed extra-territorial for the purposes of s. 44 is it necessary to show that the executing state could prosecute the act or omission of which the offence consists on a similar basis to the jurisdiction asserted by the issuing state?
The High Court ordered that it was desirable in the public interest that an appeal should be taken to the Supreme Court on the point.
Certified Point
10. The first part of the point certified is not presented as a question. Thus, the certified point is raised on an assumption that the offence is deemed extra-territorial for the purposes of s. 44 of the European Arrest Warrant Acts. The Court is not required to address that matter.

11. The point for determination is:-

“… is it necessary to show that the executing state could prosecute the act or omission of which the offence consists on a similar basis to the jurisdiction asserted by the issuing state?”
12. Thus, it is not necessary to decide an extra-territorial issue on this appeal in light of the question certified. The decision in The Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16, is not of assistance to the issue in this case, as the matter for decision in this case did not arise for determination in Bailey.
Decision
13. Under s. 10 of the European Arrest Warrant Act, 2003, as amended, 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 an offence to which the European arrest warrant relates, that person shall, subject to and in accordance with the provisions of the said Act, be arrested and surrendered to the issuing state. Thus, the Court must be satisfied that the requirements of the Act must be complied with, and if they are so, is bound to make the order.

14. In this case the offences were identified by the tick box system in the warrant: the box labelled “terrorism” being ticked. This was an innovation under the European Arrest Warrant Scheme introduced in Europe. It was described in Article 2(2) of the Central Framework Decision of the 13th June, 2002, as:-

“The following offences, if they are punishable in the issuing Member State by a custodial sentence or 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.”
There then follows the list of offences, including “terrorism”.
15. This was in addition to the conventional approach to identifying offences which may be subject to orders of extradition by acts described on the warrant. Thus, Article 2 of the Framework Decision defines the scope of the European arrest warrant as including:

“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.”
16. The European arrest warrant system is based on the Framework Decision and each member state’s national law. The Court is required to interpret the provisions of the European Arrest Warrant Act, 2003, as amended, as far as possible in light of, and so as not to conflict with, the Framework Decision: Case C- 105/03 Criminal Proceedings against Pupino [2005]E.C.R. 1 – 5285.
17. The European arrest warrant system is based on the principle of mutual recognition of the judicial decisions of the legal systems of other member states, and of mutual trust. As is stated in Recital 6 of the Framework Decision:-

“The European Arrest Warrant provided for in this Framework Decision 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.”
18. In other words, what is established is a system of mutual recognition of judicial decisions, not an identical system in each state. However, an assumption may be made. As Fennelly J. stated in MJELR v. Stapleton [2008] 1 IR 669.
“It follows, in my view, that 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 freedom’. Article 6.2 provides that the Union is itself to ‘respect fundamental rights, as guaranteed by the European Convention on Human Rights and Fundamental Freedoms … and as they result from the constitutional traditions common to the Member States, as general principles of community law.”
19. This assumption does not mean that a court has no jurisdiction to consider the circumstances. The appropriate approach was described by Murray C.J. in Minister for Justice Equality and Law Reform v. Brennan [2007] 3 IR 732, where he stated:-
“[38]… 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.
[…]

[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…. 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.”

20. Similarly, in Minister for Justice Equality and Law Reform v. Stapleton [2008] 1 IR 669, Fennelly J. stated that he could not see that any of the differences discerned by the learned trial judge between the right to seek prohibition of trial in the English Courts and our own could amount to the establishment of infringement of the right to fair trial, or fair procedures, whether by reference to the Convention or the Constitution. He held that they certainly did not amount to a clearly established and fundamental defect in the system of justice of the requesting state.
21. There is no requirement for parity of procedures between the member states. As Fennelly J. stated in Minister for Justice Equality and Law Reform v. Stapleton [2008] 1 IR 669.

“The trial judge was mistaken in seeking parity of procedure in the issuing member state. It is apparent that, even under the long established extradition jurisprudence, as it applied between some member states prior to 2004 and, as it still applies between this country and third countries, such a comparison was not required. Extradition does not demand that there be parity of criminal procedures between contracting states. It is notorious that criminal procedures vary enormously between states. Indeed, it is obvious that they approximate much more closely between this country and the United Kingdom than between either of those states and the great majority of member states practising the civil law system, where, for example, there is no tradition of cross-examination of the sort practised in our courts, and which is here regarded as totally fundamental to the rights of the defence.”
22. Applying the well established principles from case law (which do not include Minister for Justice Equality and Law Reform v. Bailey [2012] IESC 16, where the issue that arises in this case was not addressed) I would answer the question certified in the negative. Subject to such caveats as are described in the jurisprudence set out above, parity of process is not necessary. I would answer the question thus: it is not necessary to show that the executing state could prosecute the act or omission of which the offence consists on a similar basis to the jurisdiction asserted by the issuing state.

Minister for Justice and Equality v JAT (No. 2)

[2016] IESC 17
Judgment delivered on the 28th day of April, 2016 by Denham C.J.

1. This is an appeal by J.A.T., the respondent/appellant, who is referred to as “the appellant”, from the order of the High Court (Edwards J.) made on the 5th June, 2014 and perfected on the 6th June, 2014 and the written judgment delivered in relation thereto on the 9th June, 2014, which ordered the surrender of the appellant to the United Kingdom, pursuant to s. 16 of the European Arrest Warrant Act, 2003. The Minister for Justice and Equality, the applicant/respondent, is referred to as “the Minister”.

2. The High Court held that the appellant had suffered unjust harassment in that the proceedings against him “were de facto abusive of the Court’s process”.

3. However, the learned High Court judge held that this was not a case in which he

“would be justified in denying the [Minister] relief by refusing surrender, notwithstanding that the manner in which the [appellant’s] rendition has been pursued has been abusive of the process”.
4. The High Court held that the abuse of process would be addressed appropriately by an admonishment of the parties responsible.
5. The following question was certified by the High Court for an appeal to this Court:-

“Where such an abuse of process has been found to have occurred is it sufficient or appropriate for the Court to admonish the parties responsible whilst also surrendering the [appellant]?”

Cross appeal
6. The Minister has brought a cross appeal contending that:-
(i) The High Court erred in law and in fact in holding that the appellant had suffered unjust harassment on account of the manner in which his rendition has been pursued;
(ii) The High Court erred in law and in fact in holding that cumulatively the proceedings reported at [2008] IEHC 118, referred to as “T. No. 1”, and the Supreme Court appeal in Minister for Justice v T. [2010] IESC 61, and the present proceedings, were oppressive to the appellant and/or to his family, and

(iii) The High Court erred in law and in fact in holding that the proceedings constituted an abuse of the Court’s process.

European Arrest Warrant for the appellant
7. The appellant is sought by the United Kingdom on foot of a European arrest warrant (referred to as “the EAW”) relating to four offences:-
(a) Conspiracy to cheat the public revenue, contrary to s. 1(1) of the Criminal Law Act, 1977;
(b) A second offence of conspiracy to cheat the public revenue, contrary to s. 1(1) of the Criminal Law Act, 1977;

(c) Cheating the public revenue, contrary to common law; and

(d) Conspiracy to commit money laundering, contrary to s. 1(1) of the Criminal Law Act, 1977.

8. The section of the European arrest warrant where details of the offences are given is headed “Tax Fraud”.
9. The particulars of the first offence given in the EAW was as follows:-

Between the 1st day of January 1997 and the 31st December, 2005, with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise, conspired with others to cheat the public revenue by dishonestly submitting false 715 CIS 24 and CIS 25 vouchers issued pursuant to Inland Revenue construction industry taxation schemes.
The description of the said offence was given as:-
Between 1997 and 2005, the appellant was at the centre of a large scale fraud on the UK Public Revenue. He managed and controlled a large number of companies and individuals in the UK associated with the construction industry, which were used to systematically defraud the Revenue by dishonestly pretending that payment had been properly made to third parties which held tax exemption vouchers under the Inland Revenue Construction Industry Scheme (“CIS Scheme”), thereby resulting in the dishonest submission of such vouchers to the Revenue. Such pretence allowed payments to be made by a contractor gross of tax and VAT to be passed down the chain accordingly. False invoices were raised to justify such payments. Tax and VAT were not accounted for to the Revenue. Instead, the funds passed down the chain were ultimately withdrawn in cash, to pay an off record workforce cash in hand without deduction of tax, and also to benefit the appellant and others involved in the fraud. The loss to the Revenue is in excess of £10 million.
10. The second offence described that between 1997 and 2005, the fraud operated on the UK Revenue by the appellant and others extended to companies and businesses independently of the Revenue Construction Scheme (CIS Scheme). It was stated that in pursuance of the fraud, false invoices were created to give the impression that work had been legitimately carried out by parties, so as to disguise the dishonest extraction of funds from those companies and businesses, which sums were ultimately converted to cash and falsely accounted for, thereby necessarily reducing the taxable profits of the companies and businesses. The fraud, it was stated, was perpetrated against the UK public revenue. And, it was also stated that, the appellant was based in London, in the UK, throughout the period of the offending.
11. The third offence alleged is that of cheating the Public Revenue, contrary to Common Law. The particulars given are that between the 1st January, 1997, and the 31st December, 2005, he cheated the public revenue by failing to disclose his income to the Inland Revenue. In that time, it was stated, in excess of £2 million was received into personal bank accounts held by the appellant, which income he concealed, and failed to make any or any proper return to the Revenue, or to make any payment of income tax.

12. The fourth offence alleged is described as money laundering, of which particulars and a description are given.
Statement of Opposition on behalf of appellant in the High Court
13. The appellant did not consent to being surrendered on the EAW. It was opposed on the basis that in the particular circumstances the issue of the warrant and the application to the High Court amounted to an abuse of process on the part of the domestic prosecuting authority of the issuing State and/or the Minister.

14. It was submitted that the appellant had suffered an abuse of process in light of all the circumstances of the case such that his surrender is prohibited.

15. The circumstances and the factors referred to, in relation to the abuse alleged, which was stated to be, but not limited to, included:-

(i) The failure, refusal and/or neglect of the issuing judicial authority to apply Article 2.2 “ticked box” provision for the four offences in the first proceedings on the first EAW, the subject of the decision of this Court in T. No. 1.
(ii) The contents of the EAW, where it is conceded that the EAW is a “reissued Part 3 warrant”, alongside the statement that it addresses the observations of this Court in T. No. 1, which statements concede that the issuing judicial authority and/or the Minister failed or neglected or misused the Article 2.2 provision available to them in the first EAW.

(iii) The detrimental effect and prejudice to the appellant and his family by reason of the proceedings in T. No. 1, including the effect on his health and well being, the stress and anxiety caused, the impact of the proceedings upon family members and the appellant’s family life in general, and the impact of the overall length of time concerned in these proceedings on the appellant and members of his family.

(iv) The detrimental impact upon the appellant’s health, well being and family life and the impact upon the appellant’s family members arising from the institution and prosecution of these proceedings against him after the refusal of surrender in T. No. 1.

(v) The impact of stated time periods and delays in the proceedings, being: (a) the time from the alleged offences, being between 1997 and 2005; (b) the time between the appellant’s alleged failure to attend at a police station on the 26th January, 2006 (which was denied), and the issuance of the domestic warrant and the EAW in T. No. 1, which EAW was issued on the 7th March, 2008; (c) the time period involved in T. No. 1 proceedings which period was from the date of endorsement of the warrant on the 12th March, 2008, and the appellant’s arrest on the 3rd April, 2008, and the conclusion of the proceedings in the Supreme Court on the 21st December, 2010; (d) the time period between the conclusion of the proceedings in T. No. 1 in December 2010 and the issuance of the EAW in these proceedings on the 13th June,2011; (e) the time period between the issuance of the EAW in these proceedings and the transmission to the Minister and the endorsement before the High Court on the 16th September, 2011; (f) the time period between the endorsement of the EAW on the 16th September, 2011, and the arrest of the appellant in July, 2012; (g) the cumulative effect of the elapse of time on the appellant, and his health and well being and that of his family.

(vi) The individual and/or cumulative effect and prejudice to the appellant’s constitutional rights and ECHR rights, the appellant’s health and well being and the detrimental impact upon his family members arising from all of the above factors.

(vii) The surrender of the appellant would be prohibited by s. 37 of the European Arrest Warrant Act, 2003, referred to as “the Act of 2003”, in that to surrender the appellant from such offences would be to breach or violate his constitutional and ECHR rights in the following aspects: (a) it would breach or violate his constitutional rights to fair procedures where he is subject to repeated applications for his surrender; (b) the application is oppressive and unjust whereby the issuing judicial authority had open to it the provisions of Article 2.2 in T. No. 1 but failed, neglected or refused to apply them to the offences the subject matter of those proceedings where the same offences are the subject matter of this application; (c) the surrender of the appellant would be lacking in proportionality in light of the circumstances of the case both as regards his constitutional and ECHR rights, including failing to vindicate his right to bodily integrity, his right to fair procedures, his right to liberty, and/or would be unfair in light of his current state of health and well being and/or present a risk to his life such that his surrender should be prohibited.

(viii) The surrender of the appellant is prohibited by s. 37 of the Act of 2003, in that to surrender the appellant for such offences would be to breach his constitutional rights to fair procedures and the enjoyment of his family life (under Article 41 of the Constitution and/or Article 8 of the European Convention on Human Rights). In the circumstances the surrender of the appellant would be an unjust and disproportionate interference in his family life and is contrary to fair procedures in all the circumstances of the case.

(ix) The proceedings herein constitute an abuse of process whereby the appellant is prejudiced in respect of appeal to the Supreme Court arising from a determination that he should be surrendered to the issuing State. The restriction on the right of appeal provided by s. 16(12) of the European Arrest Warrant Act, 2003, with effect from the 24th August, 2009, thereby has prejudiced the appellant’s position in respect of this matter where no such restriction could have applied in T. No. 1.

The High Court
16. When this application came before the High Court the relevant points of objection were summarised by the learned High Court judge as comprising:-
“an objection based upon an alleged abuse of this Court’s process by the domestic prosecuting authority of the issuing state and/or the [Minister] in seeking to ‘come again’ in circumstances where they failed or neglected or misused the ticked box procedure available to them pursuant to article 2.2 of the Framework Decision in T. (No. 1).”
Also
“Moreover, delay has been specifically pleaded and is relied upon as an aspect of the case based upon abuse of process; as an aspect of the case based upon prejudice to the health and wellbeing of the [appellant] and his family; and as an aspect of the case based upon the right to respect for family life guaranteed by article 8 ECHR and the contention that it would be a disproportionate measure to surrender the [appellant] in the circumstances of this case.”
17. The High Court set out in great detail the facts of the case, which may be seen at Minister for Justice and Equality v. J.A.T [2014] IEHC 320.
18. An earlier warrant had been issued for the appellant from the United Kingdom, in relation to the same offences. That warrant was issued on the 7th March, 2008, by a District Justice at a Magistrates’ Court in London. The appellant was arrested in Ireland pursuant to that warrant, which he contested. On the 21st December, 2010, this Court discharged the appellant from that warrant.

19. In Minister for Justice v T. [2010] IESC 61, Hardiman J., inter alia, pointed out difficulties in that EAW and the lack of scrutiny, stating:-

“It appears to me that this very grave difficulty has arisen because the drafters of the warrant, presumably the prosecuting solicitors to the Inland Revenue, failed to distinguish between the completed offence of cheating the Revenue, which might or might not be capable of description as ‘fraud’, on the one hand, and the offence of conspiracy to cheat the Revenue which, as the warrant itself proclaims, is not within the framework list. Notwithstanding this, the warrant earlier contains a certificate that all of the offences were on the list.”
20. However, the authorities in the United Kingdom have maintained their request for the surrender of the appellant. It was stated by them that this second EAW takes into account the judgment of this Court: see Minister for Justice v T. [2010] IESC 61, Hardiman J., nem diss.
21. On this second EAW the High Court concluded:-

“The Court is satisfied, on balance, that the [appellant] has suffered unjust harassment on account of the manner in which his rendition has been pursued to date, and that cumulatively the proceedings in T. (No. 1), and the present proceedings, have subjected the [appellant] in particular, but also his family, to oppression. In those circumstances the present proceedings must be regarded as being de facto abusive of the Court’s process and I so find.
However, having carefully weighed the various considerations that I identified as relevant, I do not consider that this is a case in which I would be justified in denying the [Minister] relief by refusing surrender, notwithstanding that the manner in which the [appellant’s] rendition has been pursued has been abusive of the process.

It is a matter of significance that nobody has set out to deliberately abuse the Court’s process or by underhand and despicable means to secure an unfair advantage. That said, a duty of care was owed both to the court and to the [appellant], which has ostensibly been breached. This is not a case, however, where irremediable ongoing prejudice has been caused to the [appellant] by the unjustifiable prolongation of the rendition efforts. The [appellant’s] medical conditions were pre-existing and were not caused by the additional oppressive stress to which he has been subjected. Moreover, his medical conditions, though they remain ongoing, have fortunately not significantly worsened with the effluxion of time. Indeed, there has been some improvement. The many risk factors for self harm and suicide identified by Dr. M. in his report existed at the time of the first proceedings. Though Dr. M. has stated that the stress of being surrendered to the United Kingdom authorities may potentially have a negative impact on both the [appellant’s] mental health and that of his son, I am satisfied on the evidence that that was always going to be the case given the vulnerabilities of those parties. Accordingly, while oppression has occurred, and it is very regrettable, it may be regarded as an historical prejudice at this time in the sense that the case is now at the point that it ought to have been at in January 2009, when the High Court gave judgment in T. (No 1), had the initial rendition request been addressed with due diligence. However, any surrender that may happen hereafter, with all its direct and indirect consequences, is something that the [appellant] and his family would have to have faced in any event even if the first case had been properly conducted. Moreover, the court is entitled to take account of the fact that the [appellant], and others affected, may possibly have legal remedies open to them to pursue in respect of any suffering which they have been caused to experience unnecessarily.

In this Court’s view the abuse of process that has occurred in this case can be appropriately addressed by admonishment of the parties responsible for it, and particularly of the [Minister] who had carriage of the proceedings in this jurisdiction at all stages. The Court wishes to deprecate in strong terms the fact that the [appellant] has been unjustly harassed and oppressed and unnecessarily twice vexed with litigation. That having been recorded, I consider that the abuse that has occurred has not been so egregious that the mere fact of going forward in the light of it would be offensive. On balance, taking into account all of the circumstances of the case, I believe that it should still be allowed to proceed in the overall interests of justice.”

Cross appeal
22. The Minister has brought a cross appeal against the finding by the High Court that there was an abuse of process.
23. The Minister has cross-appealed contending that the High Court erred in finding that the appellant has suffered unjust harassment, oppression, and abuse of process.

24. I have considered carefully the lengthy and detailed judgment of the learned High Court judge; the affidavit of the appellant sworn on the 11th January, 2013 (which is detailed in the judgment of the High Court also) and the exhibits thereto; the appellant’s second affidavit, sworn on the 15th March, 2013, with updated medical information; and the two additional medical reports accepted by the learned trial judge, being the report of Dr. H., dated the 25th May, 2013, on the appellant’s son and the report of Dr. S.M. based on his assessment of the appellant on the 27th May, 2013.

25. I am satisfied that there was an evidential basis upon which the learned trial judge could, and did, find that in the circumstances there was an abuse of process. I would not interfere with the findings by the learned trial judge that the appellant has suffered unjust harassment, oppression, and that the proceedings may be regarded as being de facto abusive of the Court’s process, an abuse of process.

26. Consequently, I would dismiss the cross-appeal of the Minister.
The Issue
27. Thus, the issue on this appeal is the question as certified –

“Where such an abuse of process has been found to have occurred is it sufficient or appropriate for the Court to admonish the parties responsible whilst also surrendering [the appellant]?”
In other words, where the learned trial judge has found such an abuse of process, is it sufficient or appropriate for the Court to admonish the parties, while surrendering the appellant?
Decision
28. Historically, the issue of extradition has been a matter of treaties between States. Treaties negotiated by the executive branch of the governments of the States. In Ireland the procedure has been that the individual applications have been processed through the courts, under a scheme established by legislation, whether it be pursuant to the Petty Sessions (Ireland) Act, 1851, the Extradition Act, 1965, or the European Arrest Warrant Act, 2003 There have been many bilateral treaties between Ireland and other States. A corpus of jurisprudence has grown up around applications for extradition and the decisions of the judiciary.

29. In developing the Irish jurisprudence courts have been referred to, and have referred to, international conventions and the domestic laws of other states, in analysing the issues raised. For example, in Bourke v. A.G. [1972] I.R. 36, the issue which arose before the court was as to a “political” offence, and the application of the Extradition Act, 1965, referred to as “the Act of 1965”. The Court referred to the European Convention on Extradition, to s. 50 of the Act of 1965, and to it being derived from the said Convention, and to the principle of the non-extradition of political offenders. Reference was made to the Belgian law of 1833, which marked the historic turning point in the evolution of this principle. There were wide ranging references to the laws on extradition in many other European states, before the Court concluded, by a majority, in the judgment of O’Dálaigh C.J.:-

“Therefore, my conclusion is that Blake’s offence in escaping was a political offence and that the plaintiff’s offence in assisting that escape was connected with Blake’s offence in escaping, as has already been shown. Therefore, the plaintiff may not be extradited”.
30. The underpinning of the relevant legislation is an extradition agreement between states, as referred to in Wyatt v. McLoughlin [1974] I.R. 378. In the High Court Finlay J. stated:-
“… I am satisfied that I am entitled to have regard to the fact that an extradition Act is necessarily the consequence, as Mr. Liston contends, of an agreement between two sovereign States reposing confidence in each other, and that I should not in the first instance, suppose that the court and the other authorities of the country by which extradition is sought are using a deceit so as to secure the apprehension of the plaintiff.”
31. In the Supreme Court in Wyatt v. McLoughlin Walsh J. held:-
“Extradition is the formal surrender, based upon reciprocating arrangements by one nation with another, of an individual accused or convicted of an offence who is within the jurisdiction of the requested country when the requesting country, being competent to try and punish him, demands his surrender. The formal arrangements by which this may be secured and the principle of reciprocity enshrined are either by way of treaties or by reciprocal legislation.”
32. However, the courts do not simply rubber stamp a warrant from another state with which Ireland has an extradition agreement. For example, in Gillespie v. Attorney General [1976] I.R. 233, the point in the High Court, and in this Court, was whether the plaintiff should be allowed to adduce evidence of an expert in English law to show that the English warrant on which he was to be extradited was invalid because it was issued without jurisdiction. Henchy J. giving the decision of the Court held:-
“Section 55, sub-s.1, allows a court to attribute an authenticity and a lawful origin to a warrant with a duly verified signature, but the court is debarred from ascribing that, or any other, probative value to the document if and when good reason to the contrary emerges. This means that when it is sought, in the District Court or in the High Court, to adduce evidence showing that the authenticity or evidential value of the document put forward as the warrant is not what it would otherwise be, the court is bound to receive that evidence if it is otherwise admissible.”
The appeal was allowed on this point.
33. The issue of injustice, oppression and invidiousness are part of the Act of 1965, which has been interpreted by the Courts. Thus, in Fusco v. O’Dea (No. 2) [1998] 3 I.R. 470, this Court considered the issue of injustice, oppression and invidiousness in the context of that appeal. In that case the plaintiff had been tried for offences before the Crown Court in Northern Ireland. While awaiting judgment he escaped from prison in Belfast, on the 10th June, 1981. A few days later he was found guilty and sentenced in Belfast. On the 18th January, 1982, the plaintiff was arrested in the State, tried pursuant to the Criminal Law (Jurisdiction) Act, 1976, before the Special Criminal Court, and convicted of offences relating to the said escape. The plaintiff was due to be released from prison on the 16th December, 1991. On the 11th December, 1991, he was arrested on five warrants pursuant to the Act of 1965 in respect of the convictions and sentences which had been imposed on him by the Crown Court in Northern Ireland. The plaintiff sought his release on a number of grounds, including that the Court should infer that following the plaintiff’s arrest in the State, the Northern Ireland authorities had made a decision not to seek his extradition and that this decision was communicated to the plaintiff by implication. Accordingly, it was submitted that the Northern Ireland authorities were then estopped from seeking his extradition. The High Court ordered the release of the plaintiff. This Court allowed the State’s appeal. The plaintiff had been convicted by the Crown Court in Northern Ireland of offences of murder, attempted murder, possession of firearms and ammunition, namely a M60 machine gun and a quantity of ammunition. He had been sentenced to imprisonment for life, with a recommendation of a minimum of 30 years, on the first offence, and to life and 20 years each on the other offences, all ordered to run concurrently. Hamilton C.J. held at p. 499:-

“As I have already stated, the interests of justice require that persons accused of serious offences should be brought to trial and if convicted, should be obliged to serve sentences lawfully imposed.
Having regard to all the circumstances of this case, I am of the opinion that there is no basis for holding that it would be unjust, or oppressive, or invidious to deliver up the plaintiff herein for the purpose of serving the sentences lawfully imposed on him in respect of the serious offences of which he had been found guilty, other than one.

I am of the opinion that it would be both unjust and oppressive to deliver up the plaintiff to serve the said sentences if credit were not given for the period of imprisonment which he served in respect of offences committed in Northern Ireland and which were the subject of the trial before the Special Criminal Court.”

In that case I stated, at p. 523, that:-
“However, the specific terms of s. 50(2)(bbb) – lapse of time, exceptional circumstances, unjust, oppressive, invidious – require the Court to look at all the circumstances. In determining the circumstances the warrants are relevant. Thus, the fact that the warrants are for convictions is relevant, it reflects specifically on the issue of prejudice and a trial. The length of sentence remaining to be served may be important, if it did not exceed the ‘concurrent’ sentence served in Portlaoise he would be entitled to an order for release. Thus, the Court weights the convictions in determining the exceptional circumstances.”
In that case I analysed the factors raised and held that individually none of the factors was an “exceptional” circumstance, nor taken together did they create a pattern of exceptional circumstances, such that he should not be surrendered.
34. Prior to the Act of 1965 the method of processing extradition requests to Ireland from the United Kingdom was a procedure under s. 29 of the Petty Sessions (Ireland) Act, 1851, “the Act of 1851”, a “backing” of warrants process. This continued to be used until in State (Quinn) v. Ryan [1965] I.R. 70, this Court held the section to be unconstitutional. The applicant had sought habeas corpus in relation to a warrant backed under s. 29 of the Act of 1851. There was a clear flaw and it was obvious that the applicant would be released. A second warrant was prepared by the English police, sent to Dublin, and endorsed. Members of An Garda Síochána sat in court with the new warrant as the applicant’s release was ordered. They then arrested him immediately in the vicinity of the Court, and drove him over the border into Northern Ireland, where they handed him over to the English police officers. All this was technically legal within s. 29 of the Act of 1851. The Act of 1851 had been previously held not to be inconsistent with the Constitution. However, the Supreme Court refused to uphold this extradition procedure, stating that it deprived the plaintiff of access to the Court. O’Dalaigh C.J. held, at p. 117.

“From the survey of the evidence it becomes clear that a plan was laid by the police, Irish and British, to remove the prosecutor after his arrest on the new warrant from the area of the jurisdiction of our Courts, with such dispatch that he would have no opportunity whatever of questioning the validity of the warrant.”
And at p. 118:-
“In plain language the purpose of the police plan was to eliminate the courts and to defeat the rule of law as a factor in Government.”
And at p. 122:-
“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts’ powers in this regard are as ample as the defence of the Constitution requires. Anyone who sets himself such a course is guilty of contempt of the Courts and is punishable accordingly.
The proper order to be made in respect of Detective In¬spector Matthew G. Ryan is that he be served with notice to show cause why he should not be held to be guilty of contempt of the Courts and dealt with accordingly.”

Subsequently, there were affidavits before the Court and apologies on behalf of the Irish gardaí . Counsel on behalf of the British police indicating that they would not tender an apology unless and until they had been found in contempt. Four persons were before the Court to show cause why they should not be held guilty of contempt of the Court and punished accordingly. O’Dalaigh C.J. stated at p. 133:-
“The Court accepts that the Petty Sessions (Ireland) Act purported to authorise instant deportation, but it cannot accept the view that in a State whose Constitution guarantees personal rights it is enough to look to statute only as the warrant for one’s actions.”
The Court referred to the regret expressed by the Irish officers, to their knowledge that there cannot be a recurrence of the conduct in question, and considering this, the Court stated that it would forego the imposition of penalty in their case. The English police officers tendered apologies after the Court found that they had been in contempt. The Court held that in the absence of an unqualified apology the Court would have found it necessary to impose an exemplary penalty upon them. However, such apology having been made to the Court they were discharged without penalty.
Thus, this Court has expressed the view that the courts cannot be eliminated from the equation to defeat the rule of law in the context of an extradition exercised so as to deprive a person of access to the courts, or to deprive a citizen of his constitutional rights. While that view was expressed in relation to actions under s. 29 of the Act of 1851, they are general principles appropriate to any actions taken to eliminate the courts from an extradition process so as to set a citizen’s rights at nought.
New Procedure
35. A new statutory procedure was introduced under the European Arrest Warrant Act, 2003, referred to as “the Act of 2003”. It is under this procedure that the appellant is sought to be surrendered to the United Kingdom.
The Framework Decision
36. On the 13th June, 2002, the Council Framework Decision, referred to as “the Framework Decision”, addressed the issue of the EAW and the surrender procedures between member states. Reference was made to the conclusions of the Tampere European Council of the 15th and 16th October, 1999, according to which formal extradition procedures should be abolished among member states.

37. It was recited that the EAW provided for in this Framework Decision was 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 co-operation.

38. The Framework Decision envisaged the new system to be based on decisions of a judicial authority. This Recital (8) stated:-

“Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.”
39. It was recited that the role of central authorities in the execution of a EAW must be limited to practical and administrative assistance.
40. Recital (12) stated:-

“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 the 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.”

41. The General Principles of the Framework Decision commence in Article 1 with:-
“Definition of the European arrest warrant and obligation to execute it.
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 European Union.”

42. Article 6 specifies that the issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a EAW by virtue of the law of that state. And the executing judicial authority shall be the judicial authority of the executing member state which is competent to execute the EAW by virtue of the law of that state.
43. In Ireland the decision making judicial authority is the High Court i.e. a superior court.

44. The time limits and procedures for the decision to execute the EAW are addressed in Article 17 which states:-

“Time limits and procedures for the decision to execute the European arrest warrant
1. A European arrest warrant shall be dealt with and executed as a matter of urgency.

2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.

3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.

4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days.

5. As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled.

6. Reasons must be given for any refusal to execute a European arrest warrant.

7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level.”

The Act of 2003
45. The Act of 2003 is described in its long title as an Act to give effect to the Framework Decision on the European arrest warrant and the surrender procedures between member states, to amend the Act of 1965 and certain other enactments, and to provide for matters connected therewith.
46. In defining the term “judicial authority” the Statute reflects the Framework Decision, stating that the term means “the judge, magistrate or other person authorised under the law of the Member State concerned to perform functions the same as or similar to those performed under section 33 by a court in the State.” Thus, the decision of who is a judicial authority is taken by each member state.

47. In Ireland, under s. 33 of the Act of 2003, a court may, upon an application made by or on behalf of the Director of Public Prosecutions, issue a EAW, where it is satisfied in accordance with the terms set out in the Act.

48. At the foundation of the EAW Scheme is the concept of mutual trust and co-operation. This is reflected in s. 4A of the Act of 2003, which provides that it shall be presumed that an issuing state shall comply with the requirements of the Framework Decision, unless the contrary is shown.

49. Section 11 of the Act of 2003, as amended, provides that a EAW shall, insofar as practicable, be in the form set out in the Framework Decision as amended by the Council Framework Decision 2009/299/JHA.

50. The Act of 2003, as amended, sets out the requirements for a EAW.

51. Section 16 provides that 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 to such other person as is duly authorised by the issuing state to receive him, provided that inter alia:-

(a) the High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,
(b) the EAW has been endorsed in accordance with s. 13 for execution of the warrant,

(c) the EAW states, where appropriate, the matters required by section 45.

(d) the High Court is not required, under s. 21A, 22, 23 or 24 (as inserted by the Criminal Justice (Terrorist Offences) Act 2005) to refuse to surrender the person under the Act,

(e) the surrender of the person is not prohibited by Part 3.

52. Part 3 covers provisions on the prohibition on surrender. It includes section 37, which provides that:-
“(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 s. 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

[…]

53. Section 45C provides that:-
“For the avoidance of doubt, an application for surrender under section 16 shall not be refused if the Court is satisfied that no injustice would be caused to the person even if –
(a) there was a defect in, or an omission of, a non-substantial detail in the European arrest warrant or any accompanying document grounding the application,

(b) there is a variance between any such document and the evidence adduced on the part of the applicant at the hearing of the application, so long as the Court is satisfied that the variance is explained by the evidence, or

(c) there has been a technical failure to comply with the provisions of this Act, so long as the Court is satisfied that the failure does not impinge on the merits of the application.”

54. Thus, this scheme in relation to EAWs between the member states, is based on the decisions of judicial authorities, mutual respect and co-operation. As is clear from the Framework Decision and the Act of 2003, as amended, the decision made in a member state is not administrative. The decision is made by a person designated in the member state as a judicial authority. The scheme of EAWs is grounded on principles of co-operation and mutual respect between judicial authorities in the member states. However, each judicial authority has responsibilities and duties. The process is not a rubber stamp. If a surrender is refused that may well be a reflection on the particular circumstances which have developed in a case, rather than on the system itself.
55. In developing the jurisprudence on extradition the courts have been cognisant, as has been illustrated earlier in this judgment, of their duty to protect constitutional rights and the rule of law. This has continued while implementing the Act of 2003.

56. At one extreme there may be issues of torture and inhumane or degrading treatment. In Minister for Justice v. Rettinger [2010] 3 IR 783, the Minister sought the surrender of the respondent to Poland to serve the balance of a two year sentence imposed for the offence of burglary. The respondent opposed the application on the grounds that if he was returned to Poland he would be exposed to a real risk of torture or inhumane or degrading treatment, in breach of art 3. of the ECHR and s. 37 (1)(a) and (i) of the Act of 2003. The respondent filed affidavits as to the prison conditions. On behalf of the Minister there were letters from Poland stating that the prisons had improved in recent years. The High Court held that the respondent had failed to establish a real risk of torture or inhumane treatment, as required, and ordered his surrender. However, questions were certified for this Court. This Court allowed the appeal of the respondent and remitted the matter to the High Court, holding that the burden rested on the respondent to adduce evidence proving that there were reasonable grounds for believing if he was returned to Poland he would be exposed to a real risk of torture etc. The burden did not shift to the Minister. Reference was made to s. 37 (1)(i) which required that there be reasonable grounds for believing that the real risk existed, not proof on balance of probabilities. As to art. 3 of the Convention, the test was whether there was a real risk of prohibited treatment. Reference was made to a series of cases before the European Court of Human Rights as to prison conditions in Poland. I addressed relevant principles and the test to be applied, and remitted the matter to the High Court for the test to be applied.

Fennelly J. pointed out that this Court was being requested to consider for the first time the standard of proof which it must apply in an EAW case where a person facing surrender complains of the danger of being subjected to inhumane or degrading treatment in the requesting state. Fennelly J. pointed out also that the Court was invited to prohibit the surrender pursuant to s. 37 of the Act of 2003.

In relation to art. 3 of the Convention, Fennelly J. referred to the absolute protection against treatment prohibited by art. 3. He said in paras. 71 and 72:-

“[71] The inevitable consequence of the principle of absoluteness is that the objectives of the system of surrender pursuant to the Council Frame¬work Decision on the European Arrest Warrant and the Surrender Proce¬dures Between Member States (2002/584/JHA) cannot be invoked to defeat an established real risk of ill-treatment contrary to article 3. This does not mean that there is any underlying conflict between the Convention and the Framework Decision. As is stated in recital 10, ‘[t]he mechanism of the European arrest warrant is based on a high level of confidence between member states’. The normal presumption is, as I said in my judgment in Minister for Justice v. Stapleton [2007] IESC 30, [2008] 1 IR 669, at p. 689, the courts, ‘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 rights and fundamental freedoms”’. The amended version of Article 6 now in force does not affect this principle. Recital 13, however, declares 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 pun¬ishment.’

[72] Furthermore, article 1.3 provides:¬

‘This Framework Decision shall not have the, effect of modifying the obligation to respect fundamental rights and legal principles as enshrined in Article 6 of the Treaty on European Union.’”
In considering the issues of the onus of proof and the burden of proof, Fennelly J. held at para. 74:-

“[74] A partial answer to these questions can be found in the very word¬ing of s. 37(1)(c) of the Act of 2003. According to the section, it is sufficient to establish that ‘there are reasonable grounds for believing that’ the person would be ‘subjected to … inhuman or degrading treatment’. The European Court in Soering v. United Kingdom (App No. 14038/88) (1989) 11 EHRR 439 spoke of ‘substantial grounds for believing that the person concerned, if extradited, would face a real risk of being subjected to torture or to inhuman or degrading treatment’. Each test focuses, firstly, on the quality of the evidence or ‘grounds’ and, secondly, on the level of risk. In practice, the two elements are closely connected and will, in many cases, merge into a single test. The subject matter of the enquiry is the level of danger to which the person is exposed. There is no discernible difference between ‘reasonable grounds’ and ‘substantial grounds’. It is equally clear that 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’. Recital 13 of the Framework Decision speaks of ‘serious risk’; the term ‘real risk’ is consistently used by the European Court in its case law, including Soering v. United Kingdom (App No. 14038/88) and Saadi v. Italy (App No. 37201/06) (2009) 49 EHRR 30. It is appropriate to the seriousness of the subject matter. It would be absurd to require a person threatened with expulsion to a state where he may be exposed to inhuman or degrading treatment, not to mention torture, to prove that he would probably suffer such treatment. It must be sufficient to establish ‘real risk’.”
Fennelly J. also remitted the matter to the High Court to apply the test identified.
57. The issue of an abuse of process has arisen before. For example, in Minister for Justice v. Tobin [2012] IESC 37. In that case there had been amending legislation after the first EAW was sought and before the second EAW was sought. Fennelly J. held:-

“10. The consequence of the amending legislation was that the appellant has faced a second process of arrest, objection, High Court hearing and appeal. All this is the result of what appears to have been a legislative error followed by its correction. None of this was the responsibility of the appellant. For the reasons given by Hardiman J, this is quite different from cases where an earlier proceeding has failed by reason of defects in a warrant. In those cases it will be apparent that the surrender (or extradition as the case may be) is the result of a particular defect in the warrant and that, on established principles, the error can be remedied and a new warrant can be issued without the defects.
11. These are in essence the reasons why I agree with Hardiman J that the appeal should succeed on the ground of abuse of process. The principle of national procedural autonomy permits the courts of the Member States to apply national procedural rules so long as they do not infringe either the principle of non-discrimination or of effectiveness.

12. I am not sure that it is relevant to introduce the element of inequality of arms between the appellant and the State authorities. Inequality in that sense will be present in every case under the Framework Decision or in extradition generally. I cannot see that it adds anything to the appellant’s case. Nor do I believe that delay would constitute a ground for refusing surrender on the facts of this case. This Court in its decision in Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669 considered how an issue of delay should be treated in the context of the European Arrest Warrant in the case of surrender for prosecution. The possibilities must be more limited where a conviction has already recorded.

13. I would confine the decision on abuse of process to the special and unique circumstances of this case. There was an Arrest Warrant; the appellant was arrested and taken before the Court; he opposed his surrender through the judicial process in accordance with the law. He succeeded. It was not then suggested that the law was erroneous. The appellant had no reason to expect that it would be changed, if he successfully invoked its provisions. The law was changed. His surrender was sought a second time. I would allow the appeal and decline to order the surrender of the appellant.”

A majority of the Court allowed the appeal and refused to surrender the appellant.
58. The Court considers carefully the rights of persons sought to be surrendered. Thus, in The Minister for Justice v. Marek, Supreme Court, Unreported, 5th February, 2009, it was stated by Murray C.J., that before making an order for surrender, the Court must, having regard to s. 45 of the Act of 2003, be satisfied that the Judicial Authority has given the appropriate undertaking concerning a re-trial. He held:-

“The Court is not satisfied that there is, in relation to the request for surrender founded on the European Arrest Warrant, sufficient documentation or information regarding the nature and form of the re-trial that will take place if the appellant is returned to it and therefore it does not consider that the Order for surrender made by the High Court was correctly made in the circumstances outlined. That however is not the end of the matter. The European Arrest Warrant and the scheme and system of surrender envisaged by it anticipated that there may be circumstances in which there is a lack of clarity or a gap in the information before a Court dealing with such a request. That this should be anticipated is not surprising considering the number of countries covered by the system of surrender and the different languages which requires the translation of relevant documentation which may give rise to ambiguities.
Having come to the conclusion that because of, at the very least, an ambiguity in respect of the undertakings given having regard to what is contained in page 2 of the European Arrest Warrant the Court, as I have indicated, feels it should set aside the Order of the High Court, it having been incorrectly made, and considers that the matter should be remitted to the High Court in order that the High Court can, pursuant to s. 20 of the Act, require the issuing Judicial Authority to provide it with such additional documentation or information as will enable it to determine the nature and form of the re-trial which the requesting Judicial Authority says may take place, and will if the appellant so requests, on his return to the Czech Republic, should that Order eventually be made.”

59. In Bolger v. O’Toole [2008] 4 IR 780, the Act of 1965 was applicable to issues of delay, medical negligence, and exceptional circumstances, which were analysed:-
“[70] 68. In the final analysis, it is necessary to stand back and consider the entire history in accordance with the correct application of para. (bbb). I accept that the lapse of time of ten years qualifies as sufficiently exceptional to satisfy the first requirement. I have also indicated that the delays between 1995 and 1998 constitute another exceptional circumstance, but I have come to the conclusion that it is to be considered against the contribu¬tion of the plaintiff himself to the total period. The ultimate question is whether, in all the circumstances, it would be unjust, oppressive or invidious to deliver the plaintiff to the authorities in the United Kingdom. For that purpose, both his illness and the length of the sentence to be served have to be put in the balance. The decisions of this court in M.B. v. Conroy [2001] 2 ILRM 311 and Carne v. O’Toole [2005] IESC 22, (Unreported, Supreme Court, 21st April, 2005) strongly suggest that his illness would not justify making an order for release. In the former case, the decisive element was that the illness appeared to have supervened after the plain¬tiffs return to Ireland. Keane C.J. there accepted that it would not be logical to refuse delivery to another country to stand trial on the ground of an illness which would not prevent a trial here. Similar considerations apply where his delivery is required in order to serve a sentence.
[71] 69. The length of the sentence (which must now be limited to two years) is not an exceptional circumstance. It could be considered, if it tended to show that delivery would be unjust, invidious or oppressive, but I cannot see how that is so in this case. However, when appraising all the circumstances, the plaintiffs own behaviour is material. It cannot be ignored that the plaintiff failed to attend the balance of his trial and that the only evidence he produced for the English court took the form of two medical certificates. Like Peart J., I cannot escape the impression that he refused cooperation with an independent medical examination. He has greatly added to the length of the proceedings as a whole by the pursuit of utterly unmeritorious legal proceedings.

[72] 70. I am satisfied that it would not be unjust, oppressive or invidious to deliver the plaintiff pursuant to the orders of the District Court. I would allow the appeal from the order of the High Court directing his release.”

Second Warrant
60. This is the second EAW issued by the requesting state for the surrender of the appellant. The appellant has raised this as specific ground for the refusal of his surrender. However, it has long been settled jurisprudence in relation to applications for extradition or surrender that the fact that there was an earlier warrant is not a basis of itself upon which to refuse to surrender.
61. It is clear, and remains the law, that simply because a second EAW is issued for the same offences does not, of itself, indicate an abuse of process, or is a reason of itself to refuse to surrender the person requested.

62. In Bolger v. O’Toole, Unreported, ex tempore, Supreme Court, 2nd December, 2002, Mr. Bolger, the applicant/appellant, appealed against an order of the High Court (O’Neill J.), delivered on the 8th June, 2000, which dismissed his claim. The proceedings were brought because it was a second set of warrants seeking the rendition of the applicant to England. I stated:-

“The fact that a previous set of warrants existed and on which the applicant was discharged does not prima facie exclude the production and endorsement of a second set of warrants. It may well be that for good reason, in the circumstances of a case, a court may determine that an application for rendition should be refused. Thus, if it were an abuse of process the application may fail. In this case the applicant has been refused leave to make a specific application grounded on specific issues of abuse of process. However, that would not be a bar to any subsequent application for habeas corpus on different issues. Similarly, issues such as delay, which may arise in accordance with the legislation as well as the Constitution, are separate issues which may be raised. However, these matters are not before this court.
For the reasons stated in this judgment, I am satisfied that the order and judgment of the High Court should be affirmed and the appeal dismissed.”

63. In Gibson v. Gibson, ex tempore, Supreme Court, 10th June, 2004, an earlier warrant had been issued arising out of the same facts and had been refused. The question on the appeal was whether a new warrant could proceed. Keane C.J. held:-
“It is necessary to say at the outset that, in my view, it is clear beyond argument that in extradition cases, the mere fact that a warrant has been issued and an application made arising out of the warrant to the court for an order or extradition, that a warrant has been issued on an earlier occasion arising out of precisely the same alleged offence, and has been adjudicated upon by the District Court or any court of competent jurisdiction, that fact does not, of itself and by itself, preclude a subsequent application to a court of competent jurisdiction. If there were any doubts that that is the state of the law, they were, in my view, laid to rest by the decision of this court in Bolger -v- O’Toole (unreported decision of the court, delivered on 2nd December, 2002).”
64. Consequently, the fact that the Court has before it a second EAW seeking surrender of the appellant is not of itself an indication of an abuse of process. It is a fact to be considered in light of all the circumstances of the case.
Time Passing
65. A great deal of time has passed: it is alleged that the appellant committed the offences between 1997 and 2005; the first warrant issued on the 7th March, 2008, the judgment of this Court in Minister for Justice v. J.A.T. [2014] IEHC 320, was delivered on the 21st December, 2010; the arrest on the second EAW on the 24th day of July 2012; and the hearing of this appeal. The scheme under the Framework Decision, and the Act of 2003, aspires to be a speeded up procedure. This has not been achieved in this case. The time which has passed since the alleged offences, the first arrest on the first EAW, the second EAW, and the hearing of this appeal, is not of itself a factor upon which a request for surrender would be refused. However, this time period has to be considered in light of all the circumstances of the case.
Medical factors
66. Medical factors were put before the courts on the first EAW, and on this EAW, in relation to the appellant and to his son.
Medical factors relating to the appellant
67. An updated medical report in relation to the appellant was before the High Court from the appellant’s General Practitioner’s practice. It stated:-

“To Whom It May Concern:
The above man is a patient in this practice and has been for the past number of years. He primarily is a patient of Dr. Moore but attends me also, I know [J.] well. He has had a chequered history with depression, chronic anxiety and also has an addiction to alcohol which was waxed and waned over the years.

To give a synopsis of his psychiatric history, he attempted suicide in 2008 by way of an overdose and was admitted to [a hospital] in Mullingar. At that time he was taking anti-depressants in the form of Cymbalta and Lexotan which is an anti anxiety and sleeping tablets. Further to that he was maintained on other anti-depressants in the form of Mitrazepam and Zyprexa at night and occasional Xanax. He suffered a great deal of stress and anxiety with recent proceedings between 2007 and 2010 with regards to extradition proceedings.

He is very anxious and stressed again because of the renewal of the extradition proceedings. He is not sleeping, a lot of anxiety and depression. In particular he is worried about the care of his son who is a young man with chronic schizophrenia who is attending this practice and also is attending the local psychiatric services and CAD for an alcohol addition

Over the past 8 months, [J.] has been in to see Dr. Moore on about 7 occasions, generally speaking with abdominal pain and pain in his right upper quadrant. We have referred him on to the surgical clinic in Mullingar for assessment for this.

Certainly today [J.] presented to me in quite a distressed state and I would fear for his mental health with regards to going through the full process of hearings and court appearances and extradition proceedings again against him. He feels very unfortunate and does feel to a degree that he is being unfairly treated. We had a good in-depth discussion about this and he feels his family has fallen apart since this whole episode has begun.

He also has a daughter in England who has mental health issues which does seem to have started from around the time of the initial proceedings. She worries quite a lot about her parents and feels strongly that he is being unfairly treated. She has become stressed and unwell because of this and is under the care of physiatrists here and in England. I have seen her myself on numerous occasions.

[J.] feels again that his whole family is falling apart. He thought he had put this behind him but now it has reared its head again and he feels that he will be unable to cope as well as his family. He has asked me to write to you as I do feel that this is genuine and as I said we know [J.] and both his son and daughter well in the practice, and it is putting quite a lot of pressure on the family as a whole as you can well imagine.”

Medical factors relating to the appellant’s son
68. An updated medical report dated the 30th November, 2012, in relation to the appellant’s son, D. was also before the High Court on this second EAW application. It stated:-
“To Whom It May Concern:
The above man is a patient in this practice and has been for the past number of years. He has a diagnosis of chronic schizophrenia who is attending this practice for seven years. He is also attending the local psychiatric services under the care of Dr. Corcoran. His medications are Zispin 50mg nocte, Zyprexa 20mg nocte and Xanax on a prn basis. He has a lot of negative problems associate with the schizophrenia and also has an alcohol addition.

[D.] is very dependant on his Dad [the appellant] at present in all aspects of his care. [D.] doesn’t drive, socialise or mix well and [the appellant] tends to take him everywhere he needs to go and in general keeps him on an even keel and keeps a good watch on his 24 hours a day. [D.] is very withdrawn, introverted and really his only life it (sic) that of his family. He has a chronic psychiatric illness which will not get better and in fact will most probably deteriorate as he gets older, especially if he continues to abuse alcohol.

His Dad [the appellant] looks after him very well and I feel [D.] is very dependant on him at present.”

Conclusion
69. The High Court made a finding of an abuse of process. This is a serious finding which may not be diminished by this Court.
70. However, it is clear that no deliberate actions were taken to intentionally create this abuse of process. Thus, it is not a situation similar to State (Quinn) v. Ryan [1965] I.R. 70, and no issue of mala fides or contempt of court arises.

71. The High Court indicated that it would order an admonishment. An admonishment of “the parties involved” would appear to relate to the Minister, the Central Authority, and the prosecuting authorities in the United Kingdom. “To admonish” such parties in the circumstances would have no effect on the appellant, if he is surrendered to the United Kingdom, despite the finding that the proceedings against him “were de facto abusive of the Court’s process”. In fact, it would mean that the “parties responsible” achieve a benefit, despite their abusive behaviour. And the appellant, who has suffered from the abuse of process, is surrendered despite that abuse of process. This outcome is tainted, as it could be considered to be the fruit of abusive procedures.

72. In general, if there is an abuse of process by authorities they should not benefit. The rule of law, and the right to fair procedures, requires that such a general principle be applied.

73. Of course, there may be circumstances where a court considers that there has been an abuse of process, but to a limited degree, and applying the principle of proportionality, a surrender procedure could proceed. However, such a finding would arise only in a situation where a process was found to be an abuse, but in a limited manner, and with limited effect.

74. In this case there is an accumulation of factors.

75. It is clear, and remains the law, that simply because a second European arrest warrant is issued that does not of itself indicate any abuse of process. See Bolger v. O’Toole, unreported, Supreme Court, 2nd December, 2002, and Gibson v. Gibson, ex tempore, Supreme Court, 10th June, 2004, Keane C.J..

76. In analysing a case where there has been a finding of an abuse of process, the circumstances of each case are relevant and critical to the ultimate decision.
Factors
77. I have reviewed the circumstances of this appeal, which include the following factors:-

(a) this is the second EAW issued in relation to the offences alleged;
(b) failings in the first EAW could have been addressed in the first application;

(c) a considerable time has passed since the alleged offences and a considerable time has passed since the arrest of the appellant on the first EAW;

(d) the medical condition of the appellant, who is a vulnerable person;

(e) the medical condition of the appellant’s son, for whom the appellant is a significant carer;

(f) the family circumstances;

(g) the oppressive effect which the two sets of EAWs have had on the appellant; on his son; and on his family;

(h) no explanation has been given for delays;

(i) there has been no engagement by the authorities with the issues as to the first EAW or the delays;

(j) the Central Authority has a duty to bring to the attention of the issuing State authorities defects or internal contradictions in a warrant, and to consider whether all the documentation is complete and clear, before being relied upon for the purpose of seeking to endorse an EAW;

(k) the duty of the Court to protect fair procedures; and

(l) the principle that a party in litigation should not benefit from proceedings which were de facto abusive of the Court’s process.

The family factor
79. While there is an obligation to surrender, it is not absolute. Recital 12 of the Framework Decision specifically states that it 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. Further, it is stated that the Framework Decision does not prevent a member state from applying its constitutional rules relating to due process, amongst others.
80. Reflecting the Framework Decision, s. 37 of the Act of 2003, provides that a person shall not be surrendered under this Act if his or her surrender would be incompatible with the State’s obligations under the Convention, or the Protocols to the Convention, or would be a contravention of any provision of the Constitution, with an exception which is not relevant to this case.

81. Article 8 of the Convention provides:-

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

82. I have regard to H(H) v. Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening), H(P) v Same (Same Intervening), F – K v Polish Judicial Authority [2013] 1 AC 338, a decision of the Supreme Court of the United Kingdom, as a relevant authority. In the second of these appeals, the appeal was allowed, the Court referring to factors including that the loss of the wife to her younger children would be exceptionally severe, that her husband’s ill health would render him incapable of becoming the effective priority carer, as well as the overall delay.
83. In this case the appellant has health issues; his son suffers from schizophrenia; the appellant is his son’s primary carer; the appellant’s wife is not in a position to be their son’s primary carer; in the running of the family the appellant plays a primary role, which includes the fact that they live in the country and he is the only driver in the family, and drives his son to medical appointments etc.

84. Bearing in mind s. 37 of the Act of 2003, and Article 8 of the Convention, the family factors in this case are relevant.
Conclusion
85. While no single factor, as set out above, governs this appeal, in circumstances where the High Court has found, correctly in my view, that there has been an abuse of process, I am satisfied that the factors, referred to in this judgment, taken cumulatively, are such that there should not be an order for the surrender of the appellant.

86. To answer the question certified, where such an abuse of process has been found to have occurred, it is not appropriate for the Court to admonish the parties responsible while also surrendering the appellant.

87. Thus, I would allow the appeal, and refuse to make an order for the surrender of the appellant.

 

 

 

Judgment of O’Donnell J delivered on the 28th day of April 2016

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] UKSC 25, [2013] 1 AC 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] EWHC 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 IR 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] IESC 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] EWHC 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.

Minister for Justice v LG

, unreported, High Court, October 7, 2005
Judgment of Mr Justice Michael Peart delivered on the 7th day of October 2005:

This is an application which came before me yesterday under Section 16(1) of the European Arrest Warrant Act, 2003, as amended (“the Act”), for an order for the surrender of the respondent to the Lithuanian authorities in relation to two charges described in the European Arrest Warrant (as translated into the English language) (“the warrant”) issued by a judicial authority in Lithuania on the 28th February 2005 as “misappropriation of property” and “Forgery of an Official Document or Use or Sale of a Forged Document”.

The warrant issued herein by the said judicial authority is dated the 28th February 2005, but was not ordered by this Court to be endorsed in accordance with Section 11 of the Act until an application in that regard was made to the Court on the 5th day of August 2005. There is no information before this Court as to why that delay of five months in bringing that application occurred.

Following that endorsement for execution, the respondent was arrested in this State on foot of same on the 10th August 2005, and brought before this Court on the following day, the 11th August 2005, when he was remanded to await the hearing of this application.

Under s. 16(1) of the Act, this Court may make the order sought in this case provided it is satisfied as to a number of matters set out in that section, namely:

(a) that the person before the Court is the person in respect of whom the warrant was issued;
(b) the warrant has been endorsed in accordance with section 13 of the Act for execution;
(c) where appropriate (i.e. in cases of a conviction/sentence imposed in absentia) an undertaking as required by section 45 of the Act;
(d) that the Court is not required to refuse to surrender the respondent under sections 21A, 22, 23 or 24 of the Act;
(e) that the surrender of the respondent is not prohibited by Part III of the Act, or the Framework Decision annexed thereto.
In addition the Court must be satisfied in relation to correspondence of the offences charged, and that the offences referred to in the warrant would carry in Lithuania a penalty of the required minimum gravity, namely a maximum term of imprisonment of not less than twelve months, and also, as required by section 21A of the Act (as inserted), that a decision has been made by the Lithuanian authorities to charge and try the respondent with the offences specified in the warrant.

Ms. Melanie Greally BL on behalf of the applicant has, in presenting this application, submitted that all of these requirements are met in this case. Mr Kieran Kelly BL for the respondent has conceded that no issue is raised in relation to the arrest or identification of the respondent, and further that no issue is taken regarding the question of correspondence of the first offence stated in the warrant, namely the misappropriation of property. He rightly and fairly accepts, and the Court agrees, that the act as appearing in the warrant in this regard would if committed in this State give rise to an offence under s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. He raises no point either in relation to the undertaking referred to above at (c) above, since this is not a case in which there has been any conviction or sentence in absentia.

Mr Kelly raises four points of objection.

Firstly, he submits that the requirements of the Act have not been complied with regarding the endorsement of the warrant by order of this Court on the 5th August 2005, and that before this Court can grant the order sought it must be so satisfied. He points to the fact that the warrant is dated 28th February 2005, and that no application for its endorsement was made until the 5th August 2005, and that accordingly, and in the absence of no explanation for the delay in so doing since the 28th February 2005, it has not been endorsed as soon as practicable, as required. In this regard he also refers to the fact that in the Framework Decision annexed to the Act, reference is made to the objective of removing delays from the extradition process – for example paragraph 5 of the Preamble to the Framework Decision. He submits that the gap of five months which elapsed has not been explained and therefore, in spite of the fact that the Court on the 5th August 2005 may appear to have been satisfied to order the endorsement of the warrant in spite of the delay of five months, since it so ordered, the Court on this present application under s. 16 of the Act cannot be satisfied that the warrant was endorsed “in accordance with section 13”.

Section 13(1) of the Act provides:

“13.—(1) The Central Authority in the State shall, as soon as may be after it receives a European Arrest Warrant transmitted to it in accordance with section 12, apply, or cause an application to be made, to the High Court for the endorsement by it of the European arrest warrant………”

Ms. Greally on the other hand has submitted that the Court on the 5th August 2005 must have been so satisfied, and that in any event the period of five months is not so excessive as to go outside a concept of “as soon as may be”. In relation to this first point of objection, it happens in this case to be the fact that on the 5th August 2005 I heard the application under s. 13 of the Act for the endorsement of the warrant. As far as I am aware the question of any delay in the making of that application did not arise on the application. But nevertheless I am of the view that the requirement contained in section 16(1) of the Act that the Court be satisfied that the warrant was endorsed in accordance with section 13 of the Act means that this Court must ensure that the warrant was endorsed for execution prior to the arrest and bringing before the Court of the respondent. While that section states that the application should be made as soon as may be, I am not satisfied that the Court prior to endorsing the warrant must at all times enquire as to whether the application might not have been made earlier, except in very clear cases of what I will loosely term significant or extreme delay. No strict time limit has been inserted in the Act or in the Framework Decision itself. The phrase “as soon as may be” permits of some passage of time clearly. In the present case I am satisfied that the warrant has been endorsed for execution in accordance with section 13 of the Act.

Secondly, Mr Kelly submits that the terms of the Act and the Framework Decision are not complied with in relation to the question of minimum gravity of the offences stated in the warrant. It is necessary that the offences referred to carry a maximum penalty of a term of imprisonment of not less than twelve months. He refers to the fact that in the warrant at paragraph (c) thereof the maximum length of custodial sentence applicable is stated to be “Imprisonment for a term of up to 3 years”. He submits that the meaning of this phrase is unclear and could easily be read as meaning that the maximum term of imprisonment could be anything from one day to three years. I do not agree with this submission. It is perfectly reasonable in my view to read this as meaning that the offences stated in the warrant carry a maximum penalty which exceeds twelve months i.e. three years. In this way I am satisfied that the minimum gravity requirement is met.

Thirdly, Mr Kelly submits that correspondence has not been made out in relation to the charge of forgery set forth in the warrant. Ms. Greally has suggested to the Court that the facts set forth in the warrant in relation to forgery would if done in this country amount to an offence under section 25 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 which provides as follows:

“25.– (1) A person is guilty of forgery if he or she makes a false instrument with the intention that it shall be used to induce another person to accept it as genuine and, by reason of so accepting it, to do some act, or to make some omission, to the prejudice of that person or any other person.”

Such an offence carries a penalty on conviction of a fine, or imprisonment for a term not exceeding 10 years or both.

Ms. Greally submits that all the ingredients of an offence under section 25 of that Act are present in the facts set forth in the body of the warrant and that correspondence is therefore made out. I should set forth the relevant facts so appearing in the warrant. They appear in the following way:

“…during the period of time from 22 November 2001 until 21 September 2002, [LG], while working as a salesperson in the shop ‘Giedra’ ………… made alterations to the conducted cash transactions by several analogous actions, scissoring off the bottom part of the cash receipts that were given to the buyers. By these acts, [LG] forged genuine documents – receipts of the electronic cash register.”

Mr Kelly on behalf of the respondent has submitted that contrary to what is submitted by Ms. Greally, the act of “scissoring off the bottom of the cash receipts” as described in the warrant would not be sufficient to ground an offence of forgery in this jurisdiction given way in which section 30 of the said Act defines what is meant by a false instrument for the purpose of the offence under section 25 thereof. Section 30, sub-section (1) contains an exhaustive list of what can constitute a false instrument for the purpose of the charge, and in his submission that sub-section does not permit of any further categories since it does not include a phrase such as “shall include the following”. In this regard he has referred to my own judgment in Attorney General v. Fay, High Court, 22nd July 2003. Since the concept of altering the document by “scissoring off the bottom of the cash receipts” is not one of the methods stated by section 30 to constitute a false instrument for the purpose of the offence of forgery in this jurisdiction, he has submitted that correspondence has not been made out. In this regard, Mr Kelly has been referring to section 30, subsection (1) of that Act. I have however considered the terms of section 30, subsection (2) of that Act which provides as follows:

“30.–(2) A person shall be treated for the purposes of this Part as making a false instrument if he or she alters an instrument so as to make it false in any respect (whether or not it is false in some other respect apart from that alteration).”

It seems to me that what is alleged against the respondent in this charge is that he altered “conducted cash transactions, and cut off the ends of cash receipts thereby altering them so as to create a false instrument. I accept that the way in which the translation has been expressed leaves something to be desired as far as absolute clarity is concerned, but I believe that sufficient is stated to enable the facts as set forth in the warrant to come within what is stated in s. 30, subsection 2 of that Act.

The final point raised by Mr Kelly arises from requirement under the Act that this Court must be satisfied before making an order for the surrender of the respondent that a decision has been made in the requesting country to charge and try the respondent for the offences set forth in the warrant. This arises from the fact that one of the matters referred to in section 16(1)(d) of the Act is that before the Court can order the surrender of the respondent, it must be satisfied that the Court is not required to refuse to surrender him by virtue of section 21A (as inserted by section 79 of the 2005 Act. Section 21A, as inserted, 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.”

Section 21A(2) goes on to provide that it shall be presumed until the contrary is proved, that such a decision has been made. Ms. Greally has relied upon this presumption in the present case and has referred the Court to the fact that at the very commencement of the warrant itself at the top of page 1 thereof, the District Prosecutor General requests “that the person mentioned below be arrested and surrendered for the purposes of conducting criminal prosecution” (my emphasis).

But Mr Kelly has drawn the Court’s attention to an unusual feature of the warrant in this case, appearing in paragraph (d) thereof. Paragraph (d) is a paragraph which needs to be completed by the requesting judicial authority in cases where the respondent has been convicted in absentia – a situation which does not arise in this case. Nevertheless the requesting authority has completed an answer in the space provided and it reads as follows:

“Pursuant to the provisions of the Code of Criminal Procedure of the Republic of Lithuania, the person arrested must, within 48 hours after his surrender to Lithuania, be brought before the judge for the purpose of ascertaining whether there are grounds for his arrest.”

Mr Kelly submits that this indicates that under the Lithuanian Code of Criminal Procedure, the decision as to whether there are grounds to arrest the respondent will not be made until after he is surrendered, and that therefore the decision to charge and try him for these offences cannot be regarded as having been made already, in spite of the presumption in that regard contained in Section 21A(2) of the Act, as amended, and in spite of the statement appearing at the very commencement of the warrant to the effect that the authority wants the surrender of the applicant so that he can be prosecuted for the offences.

Ms. Greally submits that what has been inserted in this paragraph has simply been completed in error since paragraph (d) relates to in absentia cases, which the present case is not, and that what is stated therein is superfluous and irrelevant, and should be disregarded completely. Mr Kelly on the other hand submits that the presumption created by section 21A as inserted is one which may be rebutted, and that in this case it is clearly rebutted by the requesting state’s own document, namely paragraph (d) of the warrant, in which it is stated that under the Code of Criminal Procedure in Lithuania, the decision as to whether or not there are grounds to arrest the respondent must be made within 48 hours of his surrender to that country. He submits that what this must be regarded as meaning is that if the respondent is ordered to be surrendered by this Court, he will within 48 hours of his surrender be brought before a Lithuanian judge who will only at that stage make a decision as to whether there are any grounds to arrest him for these offences, and that it is of course a possibility that there will be no such grounds found to exist, and he will not be arrested, charged and tried. In a situation where such a situation is clearly possible, this Court, he submits, must regard the presumption as rebutted, and must refuse to order his surrender under Section 16(1) of the Act.

In my view there is no doubt that paragraph (d) has been completed in error. Nevertheless, what is contained therein is information which is before this Court, and which has been provided by the Lithuanian judicial authority itself as to what the law of Lithuania is in this regard. It does not seem to me to make sense to say that what is stated in that paragraph applies only to an in absentia case, since in such a case clearly the respondent has long since been arrested, charged, tried, convicted and possibly sentenced in his absence, and there would therefore be no sense in a decision being arrived at after his surrender to serve his sentence, as to whether “there are grounds for his arrest”.

It seems to make more sense to me that its meaning is that under Lithuanian Code of Criminal Procedure, the respondent in this case, if surrendered, must then within 48 hours of surrender, be brought before the judge, who will then decide whether there are sufficient grounds for proceeding with the arrest and prosecution of the respondent for the offences set out in this warrant. It appears to me not to be applicable in an in absentia case, but rather to a case such as the present one.

At best a serious ambiguity appears in the warrant in this respect such that I cannot be satisfied that a decision has already been made in the requesting state to try this respondent for the offences appearing, and to this extent I am entitled to regard the presumption as rebutted.

In deciding as I have done that the ambiguity created by the contents of paragraph (d) is sufficient to rebut the presumption, I have had regard to the stated objective in the framework Decision of mutual trust and co-operation between signatory states. But that objective cannot override the requirement to comply with a level of reasonable strictness with the requirements of the Framework Decision as brought into effect by the Act of 2003, given the implications of the Court’s decision for the liberty of the respondent.

Accordingly, I am not satisfied that the order sought can be made in this case and I refuse the application.

I want to add one other matter which arises in this case, and in others which have come before me. The Rules of Procedure for dealing with these applications has provided that Points of Objection must be filed by a respondent who wishes to raise objections on an application under Section 16 of the Act. What was filed in this regard in the present case, and in some others which have come before me, really serves no useful purpose, since it is brief to the point of being simply a traverse, containing absolutely no information as to the basis upon which objection will be made. That renders pointless the requirement to file such Points of Objection and serve same on the applicant. In my view there is no reason why the Points of Objection should not state in meaningful detail exactly what points of objection are going to be argued. The Points of Objection in the present case state as follows:

1. The surrender of the respondent is prohibited under the provisions of the European Arrest Warrant Act, 2003.
2. The lack of correspondence between the alleged offences in Lithuania and Irish Law.
3. The rights of the respondent including his constitutional rights would be infringed by his extradition.
4. Such other grounds as may be permitted to be argued by this Honourable Court.
With all due respect, the Court, and no doubt the applicant, is absolutely none the wiser, having read this document, as to what precisely these objections are.

In proceedings of a civil nature, such a document would bring forth a Notice for Particulars, so that the applicant might attempt to discover what points are being made, given the generality of the language used. That is not appropriate in applications such as those under section 16 of the Act. The purpose of the Points of Objection document is so that the applicant and the Court may know in advance of the hearing the reasons why the respondent is contending that the order should not be made. In applications of this kind, the Court conducts its own enquiry as to whether the provisions of the Act have been complied with, and it is entitled to be assisted by the arguments and submissions made by Counsel for the applicant and Counsel for the respondent. Counsel for the applicant is in my view unfairly disadvantaged in meeting the objections being made if the detail of them becomes apparent only at the time that they are expressed in Court at the hearing of the application. Since it is clearly inappropriate that following the delivery of Points of Objection a Notice for Particulars be served, given the tight timeframe in which these applications must be heard, it follows that Points of Objection should contain sufficient detail of the objection so as to serve the intended purpose, namely to indicate in advance of the hearing the nature of the objections being submitted to the Court. In future, I would urge practitioners to adopt this more fulsome approach to the drafting of their Points of Objection in order to avoid the possibility that the Points of Objection might be regarded as not sufficient.

Approved: Peart J.