DPP v Fitzgerald: It is the defence’s burden to raise the issue of whether a witness is an accomplice

In this judgment, Director of Public Prosecutions v Fitzgerald, the Supreme Court held that it is the defence’s burden to raise the issue with the court as to whether a witness should be viewed as an accomplice. A trial judge cannot unilaterally decide to issue the jury with an accomplice warning.

 

Background

A jury convicted Fitzgerald of murder. At trial, Kelly gave evidence for the prosecution that Fitzgerald had been in her home prior to the killing; that he was in possession of a shotgun; that he left her home with the shotgun; that she heard shots fired at a neighbouring house; and that Fitzgerald returned to her home with the shotgun claiming to have killed the victim.

Fitzgerald was represented at trial by a solicitor, barrister and senior counsel. The trial judge inquired whether Fitzgerald wanted the jury to be given an accomplice warning. Fitzgerald’s legal team did not request a warning.

After his conviction, Fitzgerald changed solicitor and appealed his conviction to the Court of Appeal. Among other grounds, he claimed that his conviction was unsound due to the trial judge not giving the jury an accomplice warning on Kelly’s evidence. The Court of Appeal accepted that Kelly was an accomplice but dismissed his appeal on grounds that the trial judge was not required to give a warning where the defendant had not requested one. Fitzgerald applied to the Supreme Court for leave to appeal.

 

Supreme Court

The State objected to Fitzgerald’s application, arguing that the law in this area is clear and no issue of general importance arose. Also, it argued that Fitzgerald chose to undermine Kelly’s evidence by other means, and if the trial judge had done so it would have been an interference with Fitzgerald’s right to conduct his defence in the manner of his own choosing.

But the Court determined that:

In the circumstances of this case, it is clear that the Court of Appeal viewed Ms. Kelly as an accomplice; notwithstanding that view, having regard to the way in which the defence was conducted, it concluded that no corroboration warning was necessary in respect of her evidence. The question therefore arises as to whether such a warning is required or not. The Court is satisfied that the Applicant herein has raised an issue of general public importance, namely:

“Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.”

 

Judgment

Charleton J wrote the judgment for the unanimous five judge panel. He reviewed the case law on accomplices as witnesses and concluded:

27. This brief review of the law indicates that in cases where there is an issue as to whether a witness is an accomplice or not, the trial judge should hear submissions in the absence of the jury and rule on the issue. The trial judge should also rule on which pieces of evidence contended for by the prosecution to be corroboration could amount to evidence independent of the testimony of the accomplice which tend to show the commission of the crime by the accused. It is then a matter for the jury to decide, where this is an issue, (a) if a particular witness is an accomplice and, (b) in all cases whether they accept beyond reasonable doubt the independent testimony tending to show the commission of the crime by the accused and (c) in the light of that, whether they accept beyond reasonable doubt the testimony of the accomplice implicating the accused, bearing in mind the warning they have been given.

28. Given the central role of counsel in this process, particularly that of debating which items of evidence independent of the accomplice could amount to corroboration, the issue remains as to whether the trial judge, where counsel do not raise any accomplice point, could unilaterally make a decision that a witness was in fact an accomplice, warn the jury in that respect of the dangers of convicting on his or her uncorroborated testimony, and then proceed to put items to the jury as potential corroboration to be accepted by them. Any such step would have to be taken by the trial judge without submissions, a step always taken by counsel for the prosecution and defence in the absence of the jury on the issue of what, as matter of law, may or may not amount to corroboration. Such a unilateral decision in the absence of submissions from counsel for the prosecution and counsel for the defence would tend to undermine the role of counsel. That, however, is not the procedure. This review of the ordinary steps in dealing with accomplice cases makes it clear that counsel for the defence have a role in raising the issue and in addressing it. This is part of the burden of adducing evidence and this is borne by the accused; see in that regard the judgment of Walsh J in The People (AG) v Quinn [1965] IR 366 at 382 and DPP v Clarke [1994] 3 IR 289.

 

The Court dismissed Fitzgerald’s appeal.

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C v Minister for Social Protection: Principles of equity may be applicable to remedies in public law

In this case, C v Minister for Social Protection (McMenamin J, 2017), the Supreme Court allowed C’s appeal from the High Court and found that s 249(1) of the Social Welfare (Consolidation) Act 2005 is incompatible with the Constitution. But the court delayed making a declaration of unconstitutionality. In this latest judgment (O’Donnell J, 2018) the Court awarded C damages against the State for the non-payment of his contributory pension while in prison. Defending the Court’s 2017 decision to postpone granting C a declaration of unconstitutionally, O’Donnell J said:

20 … It is, however, not unknown for the discretionary remedies in equity to be tailored to the specific circumstances to ensure that justice is done in the particular case, sometimes by reference to the rights and interests of parties not before the court. … If the legal problem is complex, there is no reason why the remedy should not be nuanced. If that is the position in private law, it cannot be excluded in public law, where the issues may be more difficult and the consequences more far-reaching.

 

Background 

249.—(1) Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit under Part 2 (including any increase of benefit) for any period during which that person—

(a) is absent from the State, or

(b) is undergoing penal servitude, imprisonment or detention in legal custody.

C is a male in his late 70s who worked in the State and made Pay Related Social Insurance (PRSI) contributions. On his retirement in 2005, he was awarded the full State Contributory Pension. In 2011, C was tried and convicted for 60 counts of sexual assault and 14 counts of rape against a family member, for which he is serving a 12 year prison sentence. Subsequent to his conviction, the State ceased making C’s pension payments. In 2013, C issued High Court proceedings seeking (1) a declaration that s 249(1) is incompatible with certain articles of the Constitution and with the Convention; and (2) an award of damages.

C argued, among other things, that he had made PRSI contributions towards the payment of his pension and that the disqualification is a breach of his property rights and his right to earn a livelihood; that it was a form of double punishment; and that he was being treated unequally before the law from a wealthier person with a private pension who would not suffer loss of payments due to imprisonment.

The State argued that s 249(1) is part of a series of disqualifications from social welfare payments to persons who are outside the State or in detention at the State’s expense, and that it is a proportionate policy choice made by the Óireachtas.

The High Court refused to grant C the order and remedy he was seeking, but Binchy J awarded awarded C two thirds of his costs. C applied to the Supreme Court for leave for a leapfrog appeal (past the Court of Appeal). The State opposed that application, but it sought leave for a leapfrog appeal on the issue of costs if C’s application was successful.

The Supreme Court accepted that the case met the constitutional threshold for a leapfrog appeal: (1) it raised issues of general public importance, and (2) there are exceptional circumstances in that a leapfrog appeal would be an efficient use of court resources (the Court of Appeal would not narrow the issues for review but would add another layer of appeal). The Court also accepted that, in the interest of efficiency also, it should also address the issue of costs, should it be necessary.

 

Supreme Court 

In the 2017 judgment, the Court held that s 249(1) was an impermissible trespass by the Legislature into the judicial realm. McMenamin J found:

 

57. Having regard to its legislative history, and its impact, the impugned provision was, undoubtedly, originally intended to be punitive in purpose. It cannot be convincingly now said its effect has, as it were, “morphed” into something different, namely, a “social solidarity” provision. The sums of money involved are significant, and could amount in total to six figures by the conclusion of the sentence. While it may be said the provision’s purpose is to avoid unjust enrichment, its true effect can only be described as punitive, retributive, indiscriminate, and disproportionate. No such financial penalty is mandatorily imposed on prisoners with independent means. Thus, applying the Enright criteria, the provision is a penalty. …

65. My conclusion is, therefore, that the State may not operate a disqualification regime that applies only to convicted prisoners and, thereby, constitutes an additional punishment not imposed by a court dealing with an offender.

 

However the Court delayed making a declaration of unconstitutionality, “for a limited period”, to allow both parties to make further submissions on the appropriate remedy.

16 months later, in this second judgment, O’Donnell J goes to considerable length to defend the Court’s jurisdiction to suspend making a declaration of unconstitutionality, but concludes:

22 However, it becomes apparent that this discussion is somewhat beside the point in this case, although, as it transpires, it is a useful entry point for analysis of the issue which is to be determined here. The problem in this case, if there is one, will not be addressed by deferring the determination of invalidity: no legislation taking effect prospectively can now address the fact that while imprisoned the appellant was disqualified from receiving benefit in circumstances which offended the Constitution, because of the effective limitation of the provision to convicted persons, and where the application of that disqualification was not a component of a sentence imposed by the court, with jurisdiction to try and sentence him. The problem, latent in this case, is, however, the closely related question of the impact of any declaration of invalidity (whenever that might be made) on the disqualification from benefit of the appellant pursuant to the invalidated section while it was in force.

47 … It seems conceivable that it would be entirely permissible to make at least some adjustment to the entitlement to social welfare of persons detained by the State and whose expenses are reduced by that fact, although not necessarily extending to the blanket removal effected by s. 249(1)(b).

O’Donnell J held that C would only be entitled to recover lost benefits from the date at which he instituted proceedings and approximated that sum to be €10,000.

New Appeal: Challenge to High Court’s application of the rule on locus standi from Cahill v Sutton

In this determination, Zalewski v Adjudication Officer & Ors, the Supreme Court granted Zalewski leave for a leapfrog appeal from the High Court finding that he did not have standing, under the rule from Cahill v Sutton [1980] IR 269, to challenge the constitutionality of certain sections of the Workplace Relations Act 2015.

Background

Zalewski worked as a supervisor for the notice party, Buywise Discount Store. Buywise dismissed him from that position. He submitted a complaint to the Workplace Relations Commission. The Adjudication Officer adjourned proceedings on the first date, as a Buywise witness was not available. On the date set for the adjourned hearing, the Adjudication Officer informed Zalewski that she had already heard the evidence at an earlier date and had made her determination, which was in favor of Buywise. Zalewski applied to the High Court for leave for judicial review challenging the constitutionality of the statutory provisions providing for the adjudication process.

In the High Court, the Workplace Relations Commission conceded to an order of certiorari quashing the decision of the Adjudication Officer and to an order that Zalewski’s case be determined by a different Adjudication Officer.

In his judgment (here), Meenan J cited Cahill v Sutton on the test for standing to challenge the constitutionality of legislation:

On the contrary, in other jurisdictions the widely accepted practice of courts which are invested with comparable powers of reviewing legislation in the light of constitutional provisions is to require the person who challenges a particular legislative provision to show either that he has been personally affected injuriously by it or that he is in imminent danger of becoming the victim of it. This general rule means that the challenger must adduce circumstances showing that the impugned provision is operating, or is poised to operate, in such a way as to deprive him personally of the benefit of a particular constitutional right. In that way each challenge is assessed judicially in the light of the application of the impugned provision to the challenger’s own circumstances.

Keenan J granted Zalewski an order of certiorari but refused him leave to challenge the constitutionality of the 2015 Act, stating:

27. It could be that the decision of December 2016 may have been as a result of some of the alleged constitutional infirmities in the Act of 2015, as the applicant says he has identified, but it seems to me that it was as a result of a complete failure on the part of the Adjudication Officer to follow fair procedures.

Zalewski sought leave of the Supreme Court for a leapfrog appeal of that decision. He argued that even though his case was before a different Adjudication Officer, he is still in imminent danger of becoming a victim of the impugned statutory provisions.

Granting leave, the Supreme Court determined that the issues raised  are of general public importance and are unlikely to benefit from refinement in a hearing before the Court of Appeal. The Court granted leave on the grounds set out in section 6 of Zalewski’s application for leave (here).

New Appeal: How should the Court of Appeal exercise its discretion to allow an appeal, out of time, in cases concerning constitutional rights?

In this determination, Seniors Money Mortgages (Ire) Limited v Gately and McGovern, the Supreme Court granted McGovern leave to appeal the Court of Appeal’s decision not to grant her an extension of time to appeal. The Court of Appeal held that McGovern did not meet the three part test set down in Eire Continental. McGovern says it should have exercised its discretion, as the case involved an infringement of her constitutional rights.

 

Background

Noelle McGovern granted Senior Money a deed of mortgage over home in County Leitrim in 2007. Noelle McGovern died in 2009. Her daughter, Jacqueline McGovern (notice party and appellant), now resides in the property. Gately (defendant) is the administrator to the estate.

Senior Money issued High Court proceedings against Gately for possession of the property under s 62(7) of the Registration of Title Act 1964. Gately had legal representation. The High Court added Jacqueline McGovern as notice party. She represented herself in court. The information before the court was that the property was a registered property. The High Court granted the order for possession in January, 2017.

In April 2018, McGovern, through her solicitors, issued a notice of motion in the Court of Appeal seeking an extension of time to appeal the High Court decision. Her grounds of appeal is that the property is unregistered therefore the High Court order was made without jurisdiction. Refusing that application (here), the Court of Appeal applied the three part test from Eire Continental Trading Company Limited v Clonmel Foods Limited [1955] 1 IR 170. It held that that McGovern had established an arguable ground of appeal but did not meet the other two parts of the test: she had not formed a bone fide intention to appeal within the permitted time, nor did she establish a mistake that would justify the delay.

McGovern applied for leave to appeal to the Supreme Court. Granting leave the Court stated:

the Court considers that the decision of the Court of Appeal does raise a matter of general public importance namely the question as to what matters the Court of Appeal should take into account in exercising its discretion whether or not to extend time to issue a notice of appeal in circumstances where, having regard to the questions identified by Eire Continental, an applicant establishes that she has an arguable ground or grounds of appeal but does not satisfy the Court that she formed a bona fide intention to appeal within the time and there is nothing in the nature of a mistake which would justify delay.

New Appeal: Does “is” mean “ is or was” in s 19 of the Mental Health Act 2001?

In this determination, F v The Mental Health Tribunal & Ors, the Supreme Court granted the Mental Health Commission leave to appeal from the decision of the Court of Appeal. The CoA held that the words “… on the grounds that he or she is not suffering from a mental disorder” in s 19 of the Mental Health Act 2001 must be interpreted as “… on the grounds that he or she is or was not suffering from a mental disorder”. The Commission submitted that this decision overturned the accepted precedent of Charleton J in Han v President of the Circuit Court [2008] IEHC 160, [2011] 1 IR 504 and raised issues of general public importance.

 

Background

In October 2015, a consultant psychiatrist signed an admission order under s 15(1) of the 2001 Act for F’s involuntary detention. An order under s 15(1) is valid for 21 days. The Commission assigned legal representation to F and referred the case to the Mental Health Tribunal for independent assessment. The Tribunal affirmed the admission order.

Separately, the treating psychiatrist issued a renewal order for F’s continued detention.

F appealed the admission order in the Circuit Court. Groake P ruled that the appeal was moot as the admission order was spent, F’s continued detention was under the renewal order, and it was subject to an appeal to the Tribunal.

The High Court refused an order of certiorari of the Circuit Court decision. Relying on the decision in Han, Barrett J held that the admission order was replaced by the renewal order, and s 19 limited the Circuit Court’s jurisdiction to appeals as to whether a patient is or “is not suffering from a mental disorder” at the time of the appeal.

The CoA overturned that decision. It held that the basis of detention at all times is the admission order, and s 19 must be interpreted as “is or was not suffering from a mental disorder” at the time the admission order was made.

The Supreme Court determined that the Commission had raised issues of general public importance warranting a further appeal and granted leave on the grounds set out in the Commission’s application (link).

New Appeal: Is s 9(1)(b) of the Offences Against the State (Amendment) Act 1998 unconstitutional?

In this determination, Sweeney v Ireland & Ors, the Supreme Court granted the State leave for a leapfrog appeal from the High Court decision that s 9(1)(b) of the Offences Against the State (Amendment) Act 1998 is repugnant to the Constitution. In the High Court, Baker J held that “the offence created by s 9(1)(b) is impermissibly uncertain as, in the absence of statutory protection, it can result in a person being unable to discern the relationship between the right to remain silent and the consequences of so doing” [110].

S 9(1)(b) of the Offences Against the State (Amendment) Act 1998

(1) A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in—

(a) preventing the commission by any other person of a serious offence, or
(b) securing the apprehension, prosecution or conviction of any other person for a serious offence, and fails without reasonable excuse to disclose that information as soon as it is practicable to a member of the Garda Síochána.

(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding five years or both.

 

Background

The facts of the case are not in dispute. Gardaí arrested Sweeney on suspicion of murder and advised him of his right to silence. They did not advise him of the consequences of s 9 of the 1998 Act. The Gardaí questioned Sweeney and released him without charge in relation to the offense on which he was arrested. At a later date, the State prosecuted Sweeney under s 9 of the 1998 Act.

Sweeney challenged the constitutionality of s 9 of the 1998 Act. The High Court (here) granted him a declaration that it was unconstitutional, on the grounds stated above. The State lodged an appeal with the Court of Appeal and also sought leave of the Supreme Court for a leapfrog appeal.

 

Supreme Court 

The State argued that the case raised questions of general public importance, specifically:

1. The High Court judgment has resulted in an important provision for tackling serious crime being declared unconstitutional and hence unavailable to the State’s investigatory and prosecutorial authorities.
2. It is important both for the individual and State authorities that the question of the potential future use of such a provision be settled in early course.
3. The case involves consideration of the interplay of the right to silence, privilege against self-incrimination and fair trial rights, in the context of the State’s duty to protect it’s people, combat crime and subversive activity and to legislate for these aims.

 

Granting leave, the Court stated:

3 In the circumstances, the Court considers that this is an appropriate case to appeal to this Court pursuant to the provisions of Article 34.5.4°. There is no factual controversy in the case. The case was a matter of legal argument alone. It appears unlikely that the issues in the case would be significantly reduced or clarified by requiring a full hearing in the Court of Appeal. The decision of the High Court involving as it did the invalidation of a piece of legislation, means that while an appeal is extant, uncertainty will exist in relation to the legislation itself, and moreover the implications of the decision for other offences. It is desirable therefore that there should be a final resolution of the issue.

New Appeal: Interpreting Article 13 of the Hague Convention

In this determination, S v R, the Supreme Court granted S leave to appeal the Court of Appeal’s decision, overturning the High Court’s order that his children be returned to him in Poland. The court granted leave on three questions relating to the interpretation of Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction as applied by Council Regulation (EC) 2201/2003, 27th September 2003:

(i) Whether the Court of Appeal was correct to approach the case de novo and exercise its own discretion on the materials before the court;

(ii) Whether the information and evidence before the court was sufficient to permit the court to exercise its discretion under Article 13 to refuse to order the return of the children to Poland; (

iii) If so, whether the Court of Appeal was correct to exercise its discretion to refuse to order the return of the children.

 

Article 13:

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

 

Background

S and R are Polish nationals. They met in Ireland. They had two children, born in 2010 and 2013. In 2015 they separated. S returned to Poland with the two children, with R’s consent. In 2016 R went to Poland and sought the return of the children to her in Ireland, under the Hague Convention. The Polish courts dismissed those proceedings. Despite that, in January 2017, R brought the children to Ireland without S’s knowledge or consent. It is not in dispute that the children were in habitual residence in Poland at that time.

S issued proceedings in the Irish High Court seeking an order for the return of the children under the Hague Convention. The court appointed a psychologist to interview the eldest child, A, then aged seven. He expressed a desire to remain in Ireland. He said that he “had fun in Ireland, liked living with the respondent and his sibling. He objected to returning to live in Poland with the applicant because he alleged the applicant beat and screamed at him and grabbed him”.

The High Court accepted that A was sufficiently mature to have his views taken into consideration. But nevertheless, it granted S an order for the return of the children to him in Poland.

The Court of Appeal reversed that decision. It held that it could exercise its own discretion based on the same facts that were before the High Court; that the High Court order would return A to a situation which would be intolerable under Article 13; and reversed the decision regarding the younger child, also.

S applied to the Supreme Court for leave for a further appeal.

Granting leave, the Court determined that the case raised matters of general public importance in that it was likely:

“that the decision in this case would be seen as establishing a bench mark for other cases under the Hague Convention, in terms of the age of the child the nature of the views expressed and the manner in which the information was provided to the court”.

New Appeal: Allegation of apparent bias against An Bord Pleanála re North-South Interconnector decision

In this determination, North East Pylon Pressure Campaign Limited & Anor v An Bord Pleanála & Ors, the Supreme Court granted the NEPPC leave to appeal the High Court decision dismissing their challenge to the process for granting of approval for a proposed North-South Interconnector (electrical). The Court determined that the NEPPC had raised questions of general public importance regarding An Bord Pleanála’s lawful designation as a “compotent authority”, its appearance of bias in the process, and of whether the Environmental Impact Assessment Directive required that Environmental Impact Statements (EIS) for alternatives to the proposed development be carried out.

 

Background

Some important background facts on the process are set out in the determination:

3. The proposed development of the North-South Interconnector is a “strategic infrastructure development” for the purposes of the Planning and Development (Strategic Infrastructure) Act 2006, as amended and is a “project of common interest” for the purposes of the TEN-E Regulation (347/2013) and the PCI Regulation (1391/2013). The process for seeking approval for such a project is governed by s. 182A and 182B of the Planning and Development Act 2000, as amended (“The PDA”).

4. The application for approval in this case was made by EirGrid. It is the licensed transmission system operator with, under statute, the exclusive function “to operate, ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system” (the Internal Market in Electricity Regulations). Under those regulations the ESB, the transmission system owner, is obliged to enter into an agreement with EirGrid for the purpose of enabling the latter to discharge its functions under the Regulations. Pursuant to the agreement, it was for EirGrid to seek planning permission/approval for any projected development. The ESB is obliged to implement any planned project designed by EirGrid, and has the requisite statutory powers to carry out construction without the consent of landowners. The ESB is also the owner of the substation in this jurisdiction which will be linked to an equivalent substation in Northern Ireland.

5. Pursuant to the regulations the State is required to designate “one national competent authority” to be responsible for facilitating and coordinating the permit granting process for projects of common interest.

6. The competent authority is to take actions to facilitate the issuing of the comprehensive decision within a time limit specified in the regulation. The regulation gives member states a choice of three schemes or models, under which the competent authority plays a greater or lesser role. The third model, which is the one chosen in this jurisdiction, is the collaborative scheme – the process leading to the comprehensive decision is coordinated by the competent authority, in consultation with other authorities concerned where relevant.

7. The regulation obliges a project promoter to facilitate public participation and report to the competent authority on the results thereof. Where relevant, the competent authority is to “actively support the activities undertaken by the project promoter.”

8. By letter dated the 4th December, 2013, copied to the Commission, An Bord Pleanála (“the Board”) was informed that it was thereby designated the competent authority for the purposes of the regulation.

 

Additional background facts are outlined in the High Court judgment (here).

On March 4th 2016, the NEPPC brought its first High Court application, seeking on order to restrain the Board’s oral hearing. The High Court dismissed that challenge. The NEPPC brought two further applications to the High Court. The first challenging EirGrid’s changing of temporary access routes from those examined in the EIS; the second seeking a declaration that the Board’s designation as a compotent authority was invalid.

The High Court allowed for amended pleadings. NEPPC sought 12 remedies on 46 grounds. The High Court refused to grant NEPPC any of the remedies sought.

Supreme Court

Granting leave for appeal, the Court determined that the NEPPC had raised points of general public importance, stating:

Leave will accordingly be granted on the questions whether the Board was lawfully designated as the “competent authority”; whether its functions in that role created a conflict in respect of its role in approving the proposed development; and whether, should the designation be found to have been invalid, there are any legal consequences for its decision in this case. Leave will also be granted on the issue concerning the obligation, if any, to provide an EIA for alternative proposals considered by the developer. The parameters of the issues may the subject of further refinement at case management.

MJ&E v O’Connor: Brexit poses no substantial risk to deprevation of rights to warrant refusal of extradition

In this judgment, Minister for Justice and Equality v O’Connor, the Supreme Court held that O’Connor did not establish that Brexit posed any real risk that any of his rights would not be respected if he was surrendered under a European Arrest Warrant to the United Kingdom.

 

Background

In 2006 Blackfriars Crown Court convicted O’Connor on two counts of tax fraud and released him on bail pending sentencing. When he did not attend court for sentencing, the judge sentenced him, in his absence, to two concurrent sentences of four years and six months.

In 2011 the UK issued a European arrest warrant seeking O’Connor’s surrender from this jurisdiction. The High Court endorsed that warrant. Gardai arrested O’Connor, and the High Court granted the Minister an order for O’Connor’s surrender. The Supreme Court granted O’Connor leave to appeal on an issue of the provision of legal aid (post). When that appeal was unsuccessful, the case returned to the High Court.

O’Connor then objected to his surrender on grounds that, as the United Kingdom had triggered the Brexit process, his rights as an EU citizen could not be guaranteed after March 2019. The High Court rejected that argument (here) and refused to grant a certificate for an appeal to the Court of Appeal. O’Connor applied for leave to appeal to the Supreme Court.

Generally applications for leave to appeal to the Supreme Court are determined on written submissions by three judges. In this case, the Court convened an extended panel and heard oral submissions from the parties.

O’Connor opposed the Minister’s intention to surrender him to the United Kingdom in circumstances where it may not be within the jurisdiction of the CJEU post Brexit and where rights accruing to him under the Charter of Fundamental rights may not be capable of enforcement.

The Court accepted that this is an issue of general public importance (there are 20 similar cases pending). The Court also determined that the case met the constitutional threshold of involving exceptional circumstances for a leapfrog appeal, as the High Court had refused a certificate to appeal to the Court of Appeal.

The Court proposed the following draft questions:

Having regard to:

(1) (a) The giving by the United Kingdom of notice under Article 50 of the TEU;

(b) The uncertainty as to the arrangements which will be put in place between the European Union and the United Kingdom to govern relations after the departure of the United Kingdom; and

(c) The consequential uncertainty as to the extent to which Mr. O’Connor would, in practice, be able to enjoy rights under the Treaties, the Charter or relevant legislation, should he be surrendered to the United Kingdom and remain incarcerated after the departure of the United Kingdom.

Is a requested state required to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be permitted, either

(i) in all cases?

(ii) having regard to the particular circumstances of the case? or

(iii) in no cases?

(2) If the answer to Q. 2 is that set out at (ii) what are the criteria or considerations which a court in the requested member state must assess to determine whether surrender is required?

(3) In the context of Q. 2, can the Court of a requested member state postpone the finalisation of a request for surrender to await greater clarity about the relevant legal regime which is to be put in place after the withdrawal of the relevant requesting member state from the Union?

 

The Court requested that the CJEU fast track this case. The CJEU declined that request. However, the High Court made a reference with almost identical questions, where the application was in continued detention, Minister for Justice, Equality and Law Reform v. R.O. [2018] 2 I.L.R.M. 199. In that case the CJEU acceded to the request for an expedited hearing. And it delivered judgment in that case in September (here).

The Court held that, in RO, the CJEU had provided answers to the questions it referenced in this case, citing specifically from para 62:

In the absence of substantial grounds to believe that the person who is the subject of that European arrest warrant is at risk of being deprived of rights recognised by the Charter and the Framework Decision following the withdrawal from the European Union of the issuing Member State, the executing Member State cannot refuse to execute that European arrest warrant while the issuing Member State remains a member of the European Union.

O’Connor argues that, due to the expedited case hearing in RO, the CJEU decided the case incorrectly, failed to consider different arguments he wanted to raise, or did not adequately consider or address those alternative arguments.

The Supreme Court stated it would withhold lifting the stay on O’Connor’s surrender for four weeks from the  judgment date, October 9. That time is to allow O’Connor to persuade the CJEU to re-open the questions decided in RO. Otherwise, the stay on his surrender will be lifted after those four weeks.

New Appeal: Is the Minister for Justice required to give reasons for decision not to refuse extradition?

In this determination, Marques v Minister for Justice and Equality, the Supreme Court granted Marques leave to appeal on “the meaning of s 15(2) of the 1965 Act [Extradition Act 1965] and the nature of the Minister’s role thereunder”. The Court will consider whether s 15(2) obligates the DPP and the Minister to give reasons, of the judicial review standard, for decisions which are subject to the Act.

 

Background

In 2013, gardai searched Marques’ home on foot of a search warrant secured on information received from the FBI. It is alleged that Marques operated a web-hosting service which was “the largest facilitator of child pornography websites on the planet”. Soon after Marques’ arrest, the US sought his extradition. The High Court granted the Minister an order to extradite. In 2016, the Court of Appeal upheld that order and the Supreme Court refused Marques leave to appeal.

In 2017, Marques wrote to the Minister referring to her statutory duty under s 15(2) of the Extradition Act 1965.

S 15 states:

(1) Extradition shall not be granted for an offence which is also an offence under the law of the State if –

(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings for the offence against the person claimed, or

(b) proceedings for the offence are pending in the State against the person claimed.

(2) Extradition may be refused by the Minister for an offence which is also an offence under the law of the State if the Director of Public Prosecutions or the Attorney General has decided either not to institute or to terminate proceedings against the person claimed in respect of the offence.

 

Marques requested that the Minister satisfy herself that his extradition would be in the public interest and that the DPP’s decision not to prosecute him in this jurisdiction was based on legitimate considerations. The Minister wrote back stating that it was neither necessary nor legitimate to seek the DPP’s reasons not to prosecute given the independence of that office, and that she had considered the views expressed by the High Court and Court of Appeal in deciding to proceed with the extradition. It is that decision that is the subject of this appeal.

Marques sought judicial review of the Minister’s decision. In the High Court the Minister conceded that she was obliged to give reasons for her decision. The trial judge held that the Minister’s reasons were adequate and that s 15 of the 1965 Act did not create a statutory exception to the DPP’s immunity from giving reasons. Dismissing Marques’ appeal, the Court of Appeal went further and held that, as there is no substantive right not to be extradited, the Minister was not required to give reasons not to refuse extradition to the judicial review standard.

Marques applied to the Supreme Court for leave to appeal that decision. Granting leave, the Court determined that the case raised issues of general public importance as to the correct interpretation of s 15(2) and the Minister’s role thereunder. The Court also determined that there was a genuine legal question concerning the different interpretations of the Minister’s obligations in the decisions by High Court and by the Court of Appeal.

 

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