DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 16 July 2018
• Neutral Citation: [2018] IEHC 586
• Docket Number: [RECORD NO. 2018 No. 157 EXT]
• Court: High Court
• Date: 16 July 2018

IN THE MATTER OF AN APPLICATION PURUSUANT TO S. 33 (1) OF THE EUROPEAN ARREST WARRANT ACT 2003 AS AMENDED

BY:

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

[2018] IEHC 586

[RECORD NO. 2018 No. 157 EXT]

THE HIGH COURT

European arrest warrant – Drug trafficking – Proportionality – Applicant seeking the issue of a European Arrest Warrant – Whether it was disproportionate to issue the European arrest warrant

Facts: The applicant, the Director of Public Prosecutions (the DPP) applied to the High Court pursuant to s. 33 of the European Arrest Warrant Act 2003 for the issue of a European Arrest Warrant (EAW) in respect of a person (the requested person).

Held by the Court that the offence for which the requested person had been prosecuted was serious, namely a drug trafficking offence, given the nature of the drug, the amount of the drug and the value of the drug. The Court held that the circumstances of the alleged offence added to the seriousness, in particular where significant amounts of cash alleged to be the proceeds of crime were also seized. The Court held that the fact that the person failed to appear in court in answer to bail was also of significance. The Court was satisfied that this was a case where on its face it could not be found that it was likely that a non-custodial sentence would be imposed if there was a conviction.

The Court held that, on the basis of the foregoing, it was not disproportionate to issue the European arrest warrant and therefore the Court acceded to the application.

Application granted.

JUDGMENT of Ms. Justice Donnelly delivered on the 16th day of July, 2018 and ADDENDUM dated 8th day of October 2018

Introduction

1 This is an ex parte application on behalf of the Director of Public Prosecutions ('the DPP') pursuant to s.33 of the European Arrest Warrant Act 2003 as amended ('the Act of 2003') for the issue of a European Arrest Warrant ('EAW') in respect of a person ('hereinafter the requested person'). In the present case, the formal criteria set out in the Act of 2003 for the issue of an EAW have been met. The Act of 2003 bestows upon the Court a discretion as regards the issuance of European arrest warrants. This judgment considers the concept of proportionality in the exercise of the discretion to issue an EAW and also the centrality of the role of the DPP in the overall operation of Ireland's scheme for the issuance of EAWs under the Act of 2003.

The contents of the draft European Arrest Warrant

2 The draft EAW placed before me sets out the details of the investigation and allegation. In this case, the requested person was arrested in the final quarter of 2014 on suspicion of possession of a controlled drug for the purpose of selling and supplying it contrary to s. 15 of the Misuse of Drugs Act 1977. He was charged with that offence and was released on bail. He was required to attend court the following month but failed to do so. As a result, a warrant for his arrest was issued. He is a foreign national. The draft EAW quite properly indicates that the maximum sentence is one of imprisonment for life. Undoubtedly, the requested person would not receive such a sentence. Indeed, if there were to be a plea of guilty together with persuasive evidence in mitigation, it is not beyond the bounds of possibility that he might even receive a suspended sentence. It is however of significance that the alleged offence is one for the possession of a controlled drug for the purpose of sale or supply and not a charge of simple possession. There is a high public interest in the prosecution of such offences, hence all the more reason why the investigation and prosecution agencies of the state must act with due expedition. As this judgment will demonstrate, the fact that there is generally a high public interest in the prosecution of a particular type of crime does not mean that the question of proportionality in the issue of an EAW need not be addressed.

3 The draft EAW contains a statement that subsequent to the DPP's direction to prosecute in August 2015, reminder emails were sent to the Gardaí as to the requested person's whereabouts. Four emails in total were sent; one in December 2016 and three in 2017. The draft EAW then states that in December 2017, An Garda Síochána had a belief that the accused had fled the country and had been living in the United Kingdom or France. The DPP applied to the High Court on 14th May, 2018 to issue an EAW, in which further investigation was required regarding the prosecutorial delay in this case.

4 Although the respondent failed to appear in the District Court, no evidence was put before me, despite invitation, to explain the delay in applying for the issue of the EAW for the requested person. The only response to that request was an affidavit that explained how a particular Garda obtained freezing orders 'between these dates, the 29/09/2014 and 18/10/2017' in relation to the cash that had been seized. The affidavit says that ongoing Garda enquiries were being made between the dates of the domestic warrant and the application for the EAW. The affidavit makes clear however, that 'these inquiries were with the Criminal Assets Bureau in relation to the monies seized.'

5 The natural inference is that the only Garda enquiries that were made in this case related to the monies that had been seized. No effort was made domestically to execute the warrant, and despite the fact that the requested person is a foreign national, no international enquiries were made. The interest of the Gardaí appears to have been solely in respect of the monies that had been seized.

The law

6 Chapter 2 of the Act of 2003 relates to the issuing of European arrest warrants. Section 33(1) provides:

'A court may, upon an application made by or on behalf of the Director of Public Prosecutions, issue a European arrest warrant in respect of a person where it is satisfied that-

(a) a domestic warrant has been issued for the arrest of that person but has not been executed, and

(b) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence concerned and the person is required to serve all or part of that term of imprisonment or detention, or, as the case may be, the person would, if convicted of the offence concerned, be liable to a term of imprisonment or detention of 12 months or more than 12 months.'

7 The use of the word 'may' in the Act of 2003 provides the High Court with a discretion whether to issue an EAW where an application is made to the court.

Proportionality

8 The overuse of the EAW mechanism has been a concern of many member states. In this jurisdiction, in Minister for Justice and Equality v Ostrowski [2013] IESC 24, a case involving the execution of an EAW in this jurisdiction, the Supreme Court, while recognising that proportionality was a matter for member states, identified why it was important that member states only issue an EAW where it was proportionate to do so. At para. 6 of his judgment, MacMenamin J. stated:

'If the absence of a proportionality test in applying states is not addressed by those charged with the monitoring [of] the operation of the EAW procedures, one can envisage that, in some member states, questions may arise as to whether the 'apparent absence' of a proportionality test on the part of surrendering states can be in accordance with fundamental rights whether identified under that Member State's own Constitution or under EU fundamental rights law.'

9 The Council Framework decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States ('the Framework Decision') at Recital 7 states that:

'in accordance with the principle of proportionality, [set out in Article 5 on the Treaty establishing the European Community], this Framework Decision does not go beyond what is necessary in order to achieve [the objective of replacing the system of multilateral extradition]'.

10 At an institutional level, the European Union has been concerned with disproportionate recourse to the mechanism of the European arrest warrant. The European Commission has produced a Handbook on how to issue and execute a European arrest Warrant ( 28.09.2017) C(2017)6389. In the Handbook, the Commission refers to the notion of proportionality as follows at para 2.4:

'A EAW should always be proportional to its aim. Even where the circumstances of the case fall within the scope of Article 2(1) of the Framework Decision on EAW, issuing judicial authorities are advised to consider whether issuing a EAW is justified in a particular case. Considering the severe consequences that the execution of a EAW has on the requested person's liberty and the restrictions of free movement, the issuing judicial authorities should consider assessing a number of factors in order to determine whether issuing a EAW is justified. In particular, the following factors could be taken into account: (a) the seriousness of the offence (for example, the harm or danger it has caused); (b) the likely penalty imposed if the person is found guilty of the alleged offence (for example, whether it would be a custodial sentence);

(c) the likelihood of detention of the person in the issuing Member State after surrender;

(d) the interests of the victims of the offence.

Furthermore, issuing judicial authorities should consider whether other judicial cooperation measures could be used instead of issuing a EAW. Other Union legal instruments on judicial cooperation in criminal matters provide for other measures that in many situations, are effective but less coercive (see Section 2.5).'

The European Commission went on to state:

'On a more general note, applying the proportionality check before issuing a EAW can reinforce mutual trust among Member State's competent authorities. Therefore, it significantly contributes to the effective...