Minister for Justice v JAT: second European Arrest Warrant was an abuse of process in the circumstances of the case

Here, the Supreme Court overturned the High Court order for JAT’s surrender to the UK authorities, as the cumulative effect of the unique circumstances of the case made the second European Arrest Warrant (EAW) application an abuse of process.

Background

In March 2008, a Welsh Magistrates’ Court issued an EAW application seeking to have JAT surrendered to the UK authorities to stand trial for alleged tax offences. in January 2009, the High Court ordered JAT’s surrender. JAT appealed to the Supreme Court, which heard an appeal in October 2010 and delivered judgment in December 2010. Hardiman J delivered judgment for the Court (here) allowing JAT’s appeal. The Court found that the EAW was invalid due to internal inconsistencies.

Later, in June 2011, a London Magistrates’ Court issued a second EAW application seeking JAT’s surrender for the same alleged tax offences. In September 2011, the High Court endorsed that EAW. However, JAT was not arrested on foot of that EAW until July 2012.  At the High Court hearing, JAT argued that the issue of a second EAW constituted an abuse of process, where: the inconsistencies in the first EAW were due to want of care on the part of the issuing judicial authority, who could have amended those inconsistencies during the first proceedings; the authorities have failed to provide reasons for the failure to amend the first proceedings or for the delays in issuing and proceeding the second EAW application; and given JAT’s personal circumstances (alcohol addiction, history of mental health issues and self harm, and being the prime carer for his son who suffers from schizophrenia).

The High Court, Edwards J (here), held that, given all the circumstances of the case, the proceedings were a de facto abuse of process. However, Edwards J determined that it was appropriate to deal with that abuse of process by admonishment of the parties, not by refusing the EAW application. The court ordered JAT’s surrender. JAT appealed to the Supreme Court against the High Court to order his surrender where it had found there to be an abuse of process. The High Court certified a question for appeal:

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

Supreme Court

Writing for the majority, O’Donnell J was emphatic that this was a unique and exceptional case, and that he did not want it to set a precedent for applications claiming that a second warrant represented an abuse of process.

He stated that, in the interests of clarity, terms such as “de facto abuse” or “harassment and oppression” should not be used in opposition to an EAW: something is either an abuse of process or it is not; harassment and oppression are concepts from Henderson v Henderson and their use blurs two lines of case law. If a warrant is defective that is enough for the courts to refuse its enforcement; the care taken in its preparation is irrelevant.

However, just as there is a public interest that people charged with offences in this jurisdiction stand trial, there is a public interest that people charged with offences in other jurisdictions also stand trial. And there is a corresponding interest that any one country does not become a refuge for persons seeking to evade surrender for trial.

Therefore, where a court has found a warrant to be defective that does not preclude the issuance of a second warrant, and concepts such as oppression or harassment should not be used in relation to repeated issuance of warrants.

O’Donnell J rejected the proposition that there is a duty on the part of an executing authority to provide an explanation for an error in a previous warrant where it is executing a second warrant. The sole issue is the validity of the second warrant. The issue of delay in the issuance of the second warrant is worthy of criticism, but it is not an abuse of process.

However, overturning the High Court order for JAT’s surrender, O’Donnell J held that:

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.

 

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