New Appeal: Re force majeure under s 16 of the European Arrest Warrant Act 2003

In this determination, Minister for Justice & Equality v Skiba, the Supreme Court granted Skiba leave to appeal against the Court of Appeal’s decision to allow his surrender (already completed) to the Republic of Poland. Although the Court determined that an appeal would be largely moot, it allowed an appeal on the question:

was the Court of Appeal correct in its determination of the law applicable in the case of the applicant, in light of the subsequent decision of the Court of Justice in Vilken Case 640/15?

 

Background

The Polish authorities requested Skiba’s surrender under a European arrest warrant to serve a sentence of imprisonment. The High Court granted the order. The Irish and Polish authorities arranged for Skiba’s transfer on a commercial flight. Skiba’s solicitor informed the State authorities by phone that Skiba had a fear of flying. At the airport, Skiba refused to pass the departure gate. Due to the commotion, the captain of the plane refused to allow Skiba to board.

Afterwards, the Minister applied to the High Court under s 16(5) of the European Arrest Warrant Act 2003 for a second order for transfer, on grounds that the first was not executed because of circumstances beyond the State’s control. S 16(5) provides:

Where a person is brought before the High Court subject to ss. (4)(c) the High Court shall:

(a) if satisfied 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 ss. (3)(A), 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 sub-paragraph (1) pending the surrender, and
(b) in any other case order that the person be discharged.

 

The High Court granted the Minister’s request. And the Court of Appeal (here) dismissed Skiba’s appeal. The CoA held that the solicitor’s phone call was not sufficient to make it reasonably foreseeable, for the purposes of the 2003 Act, that Skiba would refuse to board the flight.

The State executed Skiba’s surrender to Poland in January 2017. Since then the Court of Justice of the European Union responded to a reference by the High Court in a case with comparable facts. (The CJEU named the case Vilkas, the Supreme Court names the case Vilken). Here, the CJEU held that:

55.  Therefore, so far as concerns the concept of force majeure as provided for in Article 23(3) of the Framework Decision, it is necessary to take account of the general scheme and the 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 (see, by analogy, judgment of 18 December 2007, Société Pipeline Méditerranée et Rhône, C‑314/06, EU:C:2007:817, paragraph 26).

56.  In that regard, it is to be recalled that Article 23(3) of the Framework Decision constitutes an exception to the rule laid down in Article 23(2). Accordingly, the concept of force majeure as provided for in Article 23(3) must be interpreted strictly (see, by analogy, judgments of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraphs 24 and 25, and of 18 July 2013, Eurofit, C‑99/12, EU:C:2013:487, paragraph 37).

57.  Furthermore, it is apparent from the wording of Article 23(3) of the Framework Decision that the occurrence of a case of force majeure can justify extending the period for surrendering the requested person only in so far as that case of force majeure means that his surrender within the period laid down is ‘prevented’. The mere fact that his surrender is simply made more difficult cannot therefore justify application of the rule set out in the first sentence of that provision.

 

The Supreme Court determined that, although Skiba had already been surrendered to Poland, any even though he has not challenged the legality of his detention there, the CJEU decision in Vilkas warrants any appeal on the question:

was the Court of Appeal correct in its determination of the law applicable in the case of the applicant, in light of the subsequent decision of the Court of Justice in Vilken Case 640/15?

Supreme Court will ask the CJEU to define “trial” within the Framework Decision on European Arrest Warrants

In this judgment, Minister for Justice & Equality v Lipinski, the Supreme Court held it necessary to make a reference to the Courts of Justice of the European Union on the scope of “trial” within Article 4a of the Framework Decision on European Arrest Warrants. Should trial be interpreted narrowly, limiting its application to a criminal prosecution? Or should trial be interpreted broadly, to also include later proceedings such as hearings to suspend sentences and hearings to revoke the suspension of sentences?

 

Background

In 1998, a Polish court sentenced Lipinski to fifteen years imprisonment for offences comparable to the Irish offence of assault causing harm. That sentence was reduced on appeal to ten years. Lipinski was present at the trial and represented at the appeal.

In 2004, another court ordered the suspension of the remainder of Lipinski’s sentence on condition that he remain under the supervision of a probation officer.

In 2006, Lipinski moved to Ireland, breaching the terms of the suspension of his sentence. At a hearing later that year, a Polish court made an order quashing the suspension, making Lipinski liable to serve the rest of the sentence. The Polish authorities did not notify Lipinski of that hearing and he was not present.

In 2013 the State received a European Arrest warrant for Lipinski’s surrender to the Republic of Poland. That warrant was executed in 2014.

In the High Court, Lipinski argued that s 45 of the European Arrest Warrant Act 2003 (as amended) prohibited his surrender. S45 originally stated that a person should not be surrendered if they were not present at their trial, unless the issuing state guarantees a retrial. In 2012, s 45 was amended to state that a person should not be surrendered if they were not present at the “proceedings resulting in the sentence or detention order”. The High Court (here) ordered Lipinski’s surrender, but certified a question of law of exceptional public importance for determination by the Court of Appeal on whether s 45 as amended is engaged where the person was present at the trial for the offence but not present for the reactivation of the suspended sentence.

The Court of Appeal (here) held that the amendments were procedural rather than substantive, and if the legislature intended s 45 to extend to in absentia arrangements it would require clear wording. Lipinski sought leave of the Supreme Court to appeal that decision.

 

Supreme Court

Clarke J, writing for a five judge panel, held that s 45 must be interpreted in a manner consistent with the Framework Decision on European Arrest Warrants. Article 4a of the Framework Decision, the article which s 45 transposes into Irish law, provides for circumstances where an executing state will refuse surrender. That includes, where the subject of a warrant is sought to serve a sentence already imposed but was not present at the “trial”.

Clarke held that it is not acte clair whether trial in 4a must be interpreted narrowly to refer only to Lipinski’s original trial and sentencing (where Lipinski was present); or whether trial in 4a should be interpreted broadly to also include the proceedings where the suspension of the sentence was revoked (where Lipinski was not present).

The Supreme Court will make a reference to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union on the correct interpretation of trial in Article 4a of the Framework Decision.

MJ&E v O’Connor: No breach of Art 40.1 that leagl aid in European Arrest Warrant cases is not provided for by statute

Here, the Supreme Court (O’Donnell J writing) rejected O’Connor’s argument that the State’s failure to provide legal aid on a statutory basis to the subjects of European arrest warrant applications would breach his rights under Article 40.1 of the Constitution.

 

Background

In December 2006, Blackfriars Crown Court convicted O’Connor on two counts of tax fraud. The court released O’Connor on bail pending sentencing. When he did not attend court on the sentencing date in January 2007, the court sentenced him, in his absence, to two concurrent sentences of four years and six months.

In June 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 brought him before the High Court.

At trial, O’Connor objected to his surrender on grounds that the provision of legal aid to EAW subjects breached Article 40.1’s guarantee of equality before the law. He argued that he would qualify for legal aid under the statutory legal aid scheme, but that scheme was not applicable in EAW cases. (The State does provide legal aid for EAW cases under the Attorney General’s Scheme, but O’Connor did not apply for aid under that scheme.) He argued that as the AG scheme is an administrative scheme which allowed the AG to refuse to honor the court’s recommendation, the scheme discriminated between persons subject to a warrant for surrender to the International Criminal Court (who would qualify under the statutory scheme) and persons subject to an EAW.

The Legal Aid Board gave evidence that it would consider itself bound by a recommendation by the High Court that legal aid be provided. The High Court (Edwards J here) rejected O’Connor’s argument but certified a question for the Court of Appeal:

Is it correct that Article 11.2 of the Framework Decision (on the European Arrest Warrant) in conjunction with Article 47 of the EU Charter and the general principles of EU law imposes no obligation to provide legal aid, whether as of right or otherwise for indigent respondents in EAW cases that do not have the skill to represent themselves?

 

Here, in a two/one split decision, the Court of Appeal dismissed O’Connor’s appeal. Ryan P and Irving J upheld both the High Court’s decision; Hogan J dissented in part. Hogan J stated the opinion that the distinction made by the State between the provision of legal aid on an administrative basis for EAW cases, and the provision of legal aid on a statutory basis under the International Criminal Court Act 2006, breached the right to equality before the law as guaranteed by Article 40.1 of the Constitution. He also stated “the failure on the part of the Oireachtas to ensure that persons facing surrender requests under the 2003 Act had the same rights by law to legal aid as they would if facing trial on indictment in this state for corresponding offences amounts to a breach of Art. 40.1”.

 

O’Connor applied to the Supreme Court for leave to appeal. In its determination (here), the Court certified two questions for appeal:

(a) Whether, in the plenary proceedings, the determination as to unconstitutional inequality suggested in the dissenting judgment of Hogan J. represents the law and, if so, whether any such inequality established would render an order of surrender in the EAW proceedings inconsistent with the Constitution; and

(b) Whether, in the EAW proceedings, it is necessary or appropriate to refer a question of European law to the Court of Justice concerning the fact that legal representation for the purposes of defending an application for surrender under the 2003 Act is provided by means of an administrative scheme rather than (as in, for example, the relevant provisions in respect of the International Criminal Court) a statutory scheme.

 

Supreme Court

O’Donnell J outlined that the Constitution requires a broader provision of legal aid than is provided by statute, Carmody v MJELR [2010] 1 IR 635, [16]. However, rejecting the constitutional challenge, he stated that “Article 40.1 requires equality, not identity, of treatment” [20]. Once equal standards of legal assistance is provided it does not breach Article 40.1 that it may be provided by different means in different circumstances.

Dismissing this appeal, O’Donnell J stated that “there may be merit in placing the entire area [provision of legal aid] on a comprehensive statutory footing” [25]. However, “[i]t has not been established that any issue of European law arises in the fine distinctions that exist between the provision of legal aid under the 2013 regulations and the 1962 Act [24].

MJE v Horvath: State not allowed raise argument on appeal not raised at trial

Here, the Supreme Court (Denham CJ writing) dismissed the State’s appeal against the High Court’s refusal to order Horvaht’s surrender to Hungary under a European Arrest Warrant. The Court held that the High Court’s interpretation of s 45 of the European Arrest Warrant Act (pre-amendment) was correct. And that the State could not argue for a post-amendment interpretation as it had not raised that argument at trial.

 

Background

In May 2011 the High Court endorsed a European Arrest Warrant from Hungary seeking the surrender of Ferenc Horvath. That was the third warrant issued for Horvath and contained additional information:

– the named person was convicted at first instance and that a sentence of 3 years and 6 months was imposed on him;

– the named person is now sought for the purposes of prosecution and not to serve the above sentence imposed on him at first instance;

– the named person is now sought for the purposes of an appeal hearing and this appeal is a full hearing of the case.

 

Section 45 of the European Arrest Warrant Act 2003

S 45 originally prohibited the surrender of a person convicted in their absence unless a retrial was available. In 2012 s 45 was amended to permit the surrender of such persons where an appeal (on merits, including fresh evidence) is available.

S 45 must be interpreted in light of Article 5(1) of the Framework Decision on the European Arrest Warrant 2002/584/JHA. Article 5(1) limits surrender to cases where the surrendered person “will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment”.

 

High Court

The trial judge (Edwards J) refused to order Horvath’s surrender. Edwards held that the amendment to s 45 only applied to cases commenced after the amendment was introduced. And as no guarantee of retrial was provided surrender was prohibited. But, on application from the State, he granted leave to appeal on a point of law of exceptional public importance:

Whether the High Court was correct in law in its decision that the surrender of the respondent to Hungary for the purposes of a second instance prosecution fell within the scope of an application of s. 45 of the European Arrest Warrant Act of 2003, as amended.

 

Supreme Court

Dismissing the appeal, Denham CJ stated:

50. As the High Court decided the case by reference to the un-amended s. 45, and counsel for the Minister now argue that the amended version of s. 45 applies, a situation has arisen where the Minister wishes to argue a ground which was not argued in the High Court. It is not in accordance with the jurisprudence of this Court to consider an appeal on issues not argued in the High Court, and further which were not part of the certificate providing for appeal to this Court, and nor were identified in the grounds of appeal.

51. On the issue of the application of s. 45 of the European Arrest Warrant Act, 2003, as amended, (prior to 2012) I would affirm the decision of the High Court that the surrender of the respondent was prohibited in the absence of an undertaking as required by section 45.

Supreme Court grants five new appeals: privacy, garda sick pay, extradition and planning

CRH v Competition and Consumer Protection Commission

In this determination (here) the Supreme Court granted the State leave for a leapfrog appeal of the High Court decision by Barratt J that the Commission acted ultra vires s 37 of the Competition and Consumer Protection Act 2014 and in breach of a CRH employee’s constitutional and EU Charter rights to privacy. The case relates to the Commission’s seizure of a CRH employee’s business email account, in its investigation of anti-competitive practices in the sale of bagged cement products.

 

Garda Representative Association v Minister for Public Expenditure and Reform

In this determination (here), the Supreme Court granted the Garda Representative Association (GRA) leave to appeal the Court of Appeal’s decision that the Minister was not obliged to consult with the GRA before exercising his delegated power to introduce a statutory instrument regulating the terms of sick pay for all public servants.

Background

Prior to 2012, garda sick pay was the responsibility of the Minister for Justice. In 2012, the Department of Public Expenditure and Reform initiated a process to reform the payment for sick leave for all public servants. The GRA sought to have garda sick pay regulated on different terms from other public servants, on grounds that gardai faced a higher likelihood of injury in their daily work routine. Initially, the Minister agreed to that request and set up a working group to make a recommendation. But the Minister decided against treating gardai separately after objections from other public servants.

The GRA issued judicial review proceedings seeking a declaration that the Public Service Management (Sick Leave) Regulations 2014 should not apply to members of An Garda Síochána. The High Court dismissed those proceedings (here); as did the Court of Appeal (here).

The Supreme Court determined that the GRA raised three questions of general public importance which warranted a further appeal:

(a) Whether decisions of Government which impact on existing entitlements of workers in the public service require, prior to being changed to the detriment of such workers, either consultation with those so affected or any other form of procedure, such as procedural fairness?

(b) Where a representation is made which gives rise to a legitimate expectation that Government will be bound to a particular course of action, may this be resiled from or withdrawn without legal consequence?

(c) Whether the conditions for liability for legitimate expectation also require that the party or parties, to which such a representation is held out, change their position to their detriment, or otherwise act on same so that it would be inequitable for the Government to go back on that representation?

 

Attorney General v Lee

The US wants to extradite Lee for fraud offences committed in the US. Lee argues, firstly, that the State, through a number of statutes, has asserted extraterritorial jurisdiction over such offences; and secondly, that s 15 of the Extradition Act 1965 prohibits his extradition. S 15 states:

Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.

The Attorney General argued that, although the State has asserted extraterritorial jurisdiction over those type of offences, the offences in question were not committed within the State. The Court of Appeal accepted that argument.

Here, the Supreme Court granted Lee leave on:

whether the Court of Appeal erred in deciding that:

(a)    there was a distinction to be made between an offence which was regarded as having been committed within the State, and an offence committed in another state, over which extraterritorial jurisdiction is claimed under Irish Law?

(b) in determining that, in the latter case, such an offence could not be said to be an offence which “is regarded under the law of the State as having been committed in the State”, for the purposes of s.15 of the Extradition Act, 1965?

This Court will also consider whether:

(c) the judgment of this Court in Attorney General v. Pocevicius [2015] IESC was correctly decided?

 

Minister for Justice & Equality v Lipinski

The Republic of Poland issued a European Arrest Warrant for Lipinski’s return from Ireland to Poland to serve the remainder of a suspended sentence reactivated in his absence. In the High Court, Lipinski argued that s 45 of the European Arrest Warrant Act 2003 (as amended) prohibited his surrender. S45 originally stated that a person should not be surrendered if they were not present at their trial, unless the issuing state guarantees a retrial. In 2012, s 45 was amended to state that a person should not be surrendered if they were not present at the “proceedings resulting in the sentence or detention order”. The High Court ordered Lipinski’s surrender, but certified a question of law of exceptional public importance for determination by the Court of Appeal on whether s 45 as amended is engaged where the person was present at the trial for the offence but not present for the reactivation of the suspended sentence.

The Court of Appeal (here) held that the amendments were procedural rather than substantive, and if the legislature intended s 45 to extend to in absentia arrangements it would require clear wording. Lipinski sought leave of the Supreme Court to appeal that decision. Aside from the issue of the interpretation of s 45, Lipinski raised the argument that Article 38.1 of the Constitution guarantees the right to appeal against a decision to reactivate a suspended sentence, and his surrender would breach that right.

In its determination (here), the Court granted leave on two issues:

(a) That the Court of Appeal erred in deciding that s 45 of the 2003 Act, substituted by s 23 of the 2012 Act, was not engaged where a person, such as the applicant, was present for the hearing concerning his guilt or innocence, and the imposing of his sentence, but was not present for, or notified of, the application to activate the suspended sentence?

(b) In the circumstances set out in para (a), would an order for the surrender of the applicant violate the applicant’s rights under Article 38.1 of the Constitution of Ireland; Article 47, 48 and 53 of the Charter of Fundamental Rights & Freedom, and Article 6 ECHR?

 

Sweetman v An Bord Pleanála

In 2012, Donegal County Council identified a quarry operated by Heuston (the notice party) as one which fell under the criteria of s 216A of the Planning and Development Act 2ooo, as a development requiring regularisation. The Council directed Heuston to apply to An Bord Pleanála for substituted consent for the development. In 2014, the Board granted the Heuston substituted consent without considering whether there were exceptional circumstances which warrant the grant of substituted consent in circumvention of EU law requiring an Environmental Impact Statement. Sweetman instigated judicial review proceedings in the High Court seeking an order quashing the Board’s decision, or a declaration that s 216A is contrary to EU law, as it allowed the circumvention of the requirement of an EIS. The State made an application to have Sweetman’s proceedings struck out on grounds that the proceedings are a collateral attack on the Council’s decision, taken out of time.

In the High Court (here), Hedigan J dismissed the State’s application. And the Court of Appeal (here) dismissed the State’s appeal. The State sought leave of the Supreme Court for a further appeal on grounds that the case raised an issue of general public importance.

In this determination (here), the Supreme Court granted leave to appeal on whether:

(a) having regard to the provisions of the Planning and Development Acts, 2000-2010, and having regard to the events and circumstances involved in this case, it can properly be said that the challenge brought on behalf of Mr. Sweetman to the decision of the Board amounted to a collateral challenge to the earlier decision of Donegal County Council; and (b) whether, in the light of the determination on issue (a), the decision of the Court of Appeal to refuse to dismiss Mr. Sweetman’s application as against the State should be overturned.

Balmer v Minister for Justice: Court explains why the Constitution does not apply extraterritorially

Here, the Supreme Court held that, although the sentencing regime for murder in the UK would not be compatible with the Constitution if implemented in Ireland, that sentencing regime is not so egregious, does not contain such a fundamental defect, or does not depart “so markedly from the scheme and order envisaged by the Constitution” so as to prohibit the surrender of person under a European Arrest Warrant.

Background

In 1983, Michael Balmer, then aged 32, entered the home of a 62 year old female neighbour with the intention of stealing her car keys. When she resisted, he strangled her and, afterwards, sexually assaulted her body.

In 1984, Exetor Crown Court convicted Balmer of murder. The trial judge sentenced him to life imprisonment, not to be considered for parole until he had served 12 years (extended to 15 by ministerial discretion). In March 2011 the Secretary of State released Balmer on licence, after which he came to Ireland and found employment. In March 2012, the Secretary for State revoked that licence, stating the reason to be “allegedly committed a further offence” and “poor behavior”. In June 2013, Gardai arrested Balmer on foot of a European Arrest Warrant.

In the High Court (here), Balmer argued that his surrender is prohibited by s 37 of the European Arrest warrant Act 2003 (here) as it would breach his rights guaranteed by Article 5 of the European Convention on Human Rights and Article 38.1 and 40.1 of the Constitution [12]. Balmer relied on the authority of Minister for Justice & Equality v Nolan [2012] IEHC 249 (here). In that case, Edwards J (also the trial judge in this case) prohibited Nolan’s surrender to serve an indefinite sentence for prohibitive purposes on grounds that it was contrary to the protection guaranteed by Article 40.1. Balmer argued that a UK sentence for murder contained two elements, a mandatory period imposed by the sentencing judge which was the punitive element of the sentence after which a prisoner was detained for preventative reasons only. Balmer argued that he had already served the portion of his sentence relating to retribution and deterrence, and his surrender was to serve the portion of the sentence aimed at public protection (preventative detention).

Edwards J rejected that argument and distinguished this case from Nolan on, among others, the authority of Caffrey v Governor of Portlaoise Prison [2012] 1 IR 637, where the majority (3-2) of a divided Supreme Court determined that the legal nature of a life sentence imposed by an English court was similar to a life sentence imposed by an Irish court. Dissenting in that case, though, Fennelly J (Murray J concurring) distinguished between them. Their opinion was that an English sentence contained two elements: a tariff for retribution and deterrence and a second element for prohibitive reasons–which is not compatible with Irish law.

Balmer appealed to the Court of Appeal. The COA divided. Peart J (here) dismissed the appeal: Mahon J concurred. Hogan J dissented. Balmer sought leave to appeal to the Supreme Court.

Supreme Court

In this determination (here) the Court granted Balmer leave to appeal on two questions, in the interest of justice:

(1) Where a prisoner has been sentenced in another jurisdiction to a life sentence and has served the portion of the sentence described as consisting of the entirety of the punitive element of the sentence, in conformity with Article 40.3 and Article 40.4 of the Constitution is it possible to take any further step in this State to enforce an apparent remaining element of the sentence which is ostensibly that of prevention or deterrence?
(2) Where a prisoner has been released on licence prior to the full expiry of their sentence and is sought to be recalled because of an apparent breach of licence, is it necessary, and to what extent is it required, to have a hearing prior to or immediately proximate to that recall for such ostensible deprivation of liberty to be in conformity with Article 40.4 of the Constitution and Article 5 of the European Convention on Human Rights.

Balmer raised the same arguments as before the High Court and the Court of Appeal.

O’Donnell J, writing for the six judge panel (the recently deceased Hardiman J was also on the panel at hearing) examined the nature of sentencing for murder in England and Wales and compared that to the system of sentencing in Ireland. He found that, although there are comparisons between sentencing in both jurisdictions, the UK system would not be compatible with the Irish Constitution if implemented here. However, the Court followed the precedents in MJELR v Brennan [2007]3 IR 732 and Nottinghamshire County Council v B [2013] 4 IR 662. O’Donnell J held that, as that sentencing regime is not so egregious, does not contain such a fundamental defect, or does not depart “so markedly from the scheme and order envisaged by the Constitution”, the Constitution does not prohibit Balmer’s surrender to the English authorities under a European Arrest Warrant.

Central issue in this case

O’Donnell J narrowed the central issue in this case to, not whether the Constitution could be applied extraterritorially, but, why it was not open to the Court to refuse to surrender Balmer, thereby the Court would be upholding the protections provided by the Constitution while enforcing the Constitution intraterritorially. He stated:

43 In my view, these are the reasons why it can be said that the Irish Constitution does not, in general, apply abroad. It also explains why the Brennan test applies to surrender. Irish constitutional law (and therefore s.37(1)(b) of the EAW Act) distinguishes between events occurring abroad and those occurring here, not merely because they do occur abroad, and therefore, are observed rather than controlled by Irish law: it is also, and more importantly, because, particularly in the field of criminal law, they are controlled by the law of a foreign sovereign state. In this case, the execution of a sentence lawfully imposed, the trial of an offence contrary to law, and the enactment of laws providing for definitions of offences, punishments and administration of sentences, are all fundamental and central attributes of sovereignty. The comity of courts is not merely a matter of politeness between lawyers, or an end in itself: it is an aspect of the relationship between sovereign states. An essential corollary of sovereignty is the equality of states, expressed in the 14th century maxim “non enim una civitas potest facere legem super alteram, quia par in parem non habet imperium” (For it is not for one city to make the law upon another, for an equal has no power over an equal) Brownlie’s Principles of Public International Law, 8th Ed (Oxford, 2012), at p. 448. Article 5 of the Constitution asserts, in words that were by no means rhetorical in 1937, that Ireland is a sovereign, independent state. By Article 1 of the Constitution, the nation affirms its sovereign right to determine its relations with other nations. The conduct of external relations of the State raises separate constitutional issues, and requires a wider constitutional focus than the question of whether a certain procedure would be permissible within the jurisdiction.

44 Article 29 of the Constitution outlines that Ireland affirms its “devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality”. This statement encapsulates a key principle applicable to the circumstances of this case. Cooperation implies some give and take. It also focuses attention on reciprocity, and the equality of sovereign states. The making of an extradition treaty, adherence to a convention on extradition, the implementation of a framework decision, and adherence to international decisions in areas of family law may all raise issues when surrender or return is sought. It is also necessary to appreciate that those issues arise under the same instrument which permits Ireland to seek the surrender of suspects for trial of offences alleged to have occurred in Ireland in respect of which Ireland has jurisdiction, or for the return of individuals to the jurisdiction of the Irish courts. It is not, therefore, a case of the Irish Constitution controlling events abroad (in which case the only question would be whether the acts alleged amount to a breach of the Constitution); it is, as already observed, rather that the Irish court is observing events abroad. Moreover, those events are observed through the lens of Article 29, requiring friendly cooperation, and Articles 1 and 5, which, in asserting sovereignty, require the respect of the sovereignty of other countries. The events, with which we are concerned here, are not private transactions between individuals. They are, by definition, the application of the criminal law within the territory of a sovereign state (in most cases to, and in respect of, its own citizens), or the execution of sentences imposed by their courts. These are key attributes of sovereignty of foreign friendly states, whose sovereignty we are bound by the Constitution to respect, in the same way as we expect respect for matters within our own jurisdiction. This is why, in my view, it is correct to speak of s.37 of the EAW Act as applying only to matters of “egregious” breach of fundamental principles of the Constitution or when something is so proximate a consequence of the court’s order and so offensive to the Constitution as to require a refusal of surrender or return. It may be that the concept of friendly cooperation may also permit or require steps to be taken which would not have been taken in an earlier age, and not merely because the provisions of the Irish Constitution have been altered, but also because the area and content of international cooperation has extended. Such cooperation is, however, not unlimited. It is, for example, by the terms of the Constitution itself subject to justice and morality. There are also examples of limitations on this principle by consent, or international agreement or otherwise. It neither necessary nor desirable to explore these circumstances here, since they were not adverted to in argument. It is enough to identify the focus of the analysis for the purpose of s.37, which, in my view, explains the application of the Brennan approach.

Dunne J wrote a concurring opinion (here). Denham CJ, MacMenamin J, Charleton J and O’Malley J concurred with both judgments.

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.

 

New Appeal: should legal aid for European Arrest Warrant cases be provided on a statutory basis?

judge-hogan-ecstasy-drugs-legal-390x285In this determination (Minister for Justice v O’Connor) the Court granted O’Connor leave to appeal a Court of Appeal decision that it does not breach the constitutional guarantee to equal treatment before the law (Article 40.1) that the State provides legal aid on a statutory basis for a defendant fighting surrender to the International Criminal Court, whereas legal aid for a European Arrest Warrant case is provided under an administrative scheme.

The Court will also allow argument on whether it is necessary to make a preliminary reference to European Court of Justice on whether EU law requires that legal aid be provided in EAW cases as a statutory right.

Background

The High Court granted the Minister an order allowing for O’Connor’s surrender under an EAW request, and it rejected his proceedings for a declaration that the provision of legal aid in EAW cases on an administrative basis (the Attorney General’s office has discretion to refuse costs) breached the guarantee of equality before the law.

In the Court of Appeal (here), Ryan P and Irving J upheld both the High Court’s decisions; Hogan J dissented in part. He was of the opinion that the distinction made by the State between the provision of legal aid on an administrative basis for EAW cases, and the provision of legal aid on a statutory basis under the International Criminal Court Act 2006, breached the right to equality before the law as guaranteed by Article 40.1 of the Constitution. He also stated “the failure on the part of the Oireachtas to ensure that persons facing surrender requests under the 2003 Act had the same rights by law to legal aid as they would if facing trial on indictment in this state for corresponding offences amounts to a breach of Art. 40.1

The Supreme Court determined that, given the reasoned dissenting judgment by Hogan J, there are arguments both ways on the equality issue; and if the equality argument was successful it would apply to all others facing a surrender application. Therefore the issues met the constitutional threshold for an appeal to the Supreme Court.

The Court certified two questions for appeal:

(a) Whether, in the plenary proceedings, the determination as to unconstitutional inequality suggested in the dissenting judgment of Hogan J. represents the law and, if so, whether any such inequality established would render an order of surrender in the EAW proceedings inconsistent with the Constitution; and

(b) Whether, in the EAW proceedings, it is necessary or appropriate to refer a question of European law to the Court of Justice concerning the fact that legal representation for the purposes of defending an application for surrender under the 2003 Act is provided by means of an administrative scheme rather than (as in, for example, the relevant provisions in respect of the International Criminal Court) a statutory scheme.

MJE v Buckley: Article 38, right to a fair trial, does not apply extraterritorially

handcuffs-in-EU-logoUnder s 37 of the European Arrest Warrant Act 2003 (here), a person cannot be surrendered where it would be incompatible with the State’s obligations under the ECHR, or where it would contravene any article of the Constitution. In this case, the Court was asked can a defence of an apprehended breach of Article 38, right to a fair trial, be raised to an extradition request? And secondly, do the rules of evidence applying to the prosecution of conspiracy in England breach Article 38?

MacMenamin J (here) answered both questions in the negative.

Background

In 2013, the UK authorities issued an EU extradition warrant request for Buckley. He was wanted to face prosecution in England on charges of criminal conspiracy and for the design and manufacture of pipe bombs. In the High Court, Buckley raised a defence that the English rules of evidence in relation to conspiracy allowed the admission of evidence at trial which would be prohibited in an Irish court under Article 38. And that his surrender should therefore be refused under s 37 of the 2003 Act. Edwards J (here) ordered his surrender but certified two questions of exceptional public importance for consideration by the Supreme Court:

(1) Does the right to a fair trial, guaranteed by Article 38 of the Constitution, have application beyond the national territory? Specifically, is it permissible for a respondent to an application for surrender to raise an apprehended breach of Article 38 as an objection to surrender under s.37 of the European Arrest Warrant Act, 2003?

(2) Having regard to the comments of Walsh J. in Ellis v. O’Dea [1989] I.R. 530, and the evidential rules that apply to the prosecution of conspiracy in England, would the surrender of the respondent amount to a breach of s.37 of the European Arrest Warrant Act, 2003?

Supreme Court

Buckley argued that s 74 of the United Kingdom Police & Criminal Evidence Act 1984  would allow the prosecutor to introduce evidence that another person has been convicted for their part in the conspiracy for which he is accused, and that Article 38 would prohibit the introduction of such evidence in an Irish court. Therefore his surrender is prohibited under s 37 of the 2003 Act.

However, MacMenamin J found that s 74 of the 1984 Act provides that such information can be admitted as evidence–it is not proof of guilt. That the 2003 Act contains a presumption that an EU state issuing an extradition request will comply with the Framework Agreement, unless the contrary is proven. Therefore there will be safeguards in place to guarantee a fair trial.

In relation to the first question, citing Murray J from Minister for Justice, Equality & Law Reform v Brennan [2007] 3 IR 732 and O’Donnell J from Nottinghamshire County Council v B(K) [2011] IESC 48, he concluded that there is no authority to the effect that Article 38 should operate in an extra-territorial fashion. But although he said that that situation may warrant consideration if it was established that there was a fundamental defect in the requesting state’s legal system [22], he answered the first question in the negative [25].

On the second question, MacMenamin J held that, as the comments of Walsh J in Ellis were obiter, as the case applied to the Extradition Act of 1965 not the 2003 Act and as the Framework Decision provides extensive protection, the context of those comments differs from this case. Because Buckley had not demonstrated that the prosecution would introduce evidence as provided for in s 74 of the 1984 Act, and as he had not demonstrated that if it did the trial procedure would not contain safeguards to guarantee a fair trial, he also answered the second question in the negative.

 

 

Minister for Justice v McArdle; MJ&E v Brunell: Court refuses to make preliminary reference under acte clair doctrine

handcuffs-in-EU-logoHere, citing Cilfit (the acte clair doctrine), Denham CJ refused the Appellants’ request that the Court make a preliminary reference to the European Court of Justice on whether the Council Framework Decision on the European Arrest Warrant system permits a public prosecutor, who is personally involved in the investigation of an offence, to issue an arrest warrant as an “independent judicial authority”.

She stated that, due to the principles of mutual respect and co-operation in the operation of the European arrest warrant scheme “[t]here is a presumption that when a European arrest warrant is issued, and stated to be issued, by a public prosecutor or judge of a Member State acting as the judicial authority designated by the Member State, he or she is the judicial authority within the meaning of the Framework Decision and the Act implementing it”.

Background

The Kingdom of the Netherlands issued a European arrest warrant request for McArdle and Brunell for the purposes of prosecuting them for the murder and dismembering of an Irish citizen (Keith Ennis) in Amsterdam in 2009. The warrants were issued by a public prosecutor from the Public Prosecutor’s Office in Amsterdam. The High Court (Edwards J) ordered the surrenders. Both appealed to the Supreme Court.

Supreme Court

Denham CJ outlined one issue (among others) as being whether the Framework Decision requires independent judicial scrutiny of a decision to issue a warrant–McArdle argued that the Public Prosecutor was not independent and sought a preliminary reference to the ECJ:

Is Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States to be interpreted as permitting a public prosecutor, who is personally involved in the investigation of an offence, to issue a European Arrest Warrant in respect of that offence where it has not been established that the underlying enforceable judgment, arrest warrant or other enforceable judicial decision having the same effect was issued by an independent judicial authority.

Citing Cilfit, Case 283/81 [1982] E.C.R 3415, (the acte clair doctrine) Denham CJ refused to make the proposed preliminary reference, as the meaning of the Directive is clear. Article 6.1 states: “The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State“. Citing Fennelly J in Dundon v Govenor of Cloverhill Prison [2006] 1 IR 518, she stated that the definition of judicial authority in the 2003 Act is broad and should be interpreted as far as possible in light of the wording and purpose of Framework Decision to achieve the result it pursues. And the status of the public prosecutor in the Netherlands is designated by the national legal system of that State.

She stated that, due to the principles of mutual respect and co-operation in the operation of the European arrest warrant scheme (Article 1) “[t]here is a presumption that when a European arrest warrant is issued, and stated to be issued, by a public prosecutor or judge of a Member State acting as the judicial authority designated by the Member State, he or she is the judicial authority within the meaning of the Framework Decision and the Act implementing it” (Article 6) [51]. Also, due to the principle of mutual respect, there is a presumption that the national legal system of the issuing Member State provides adequate safeguards and remedies. As the appellants did not rebut that presumption, the Court dismissed the appeals.

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