Attorney General v Anthony Abimbola

JurisdictionIreland
JudgeMR. JUSTICE FENNELLY
Judgment Date28 November 2007
Neutral Citation[2007] IESC 56
CourtSupreme Court
Docket Number[2006 No. 47 EXT]
Date28 November 2007
AG v Abimbola & Abimbola v Governor of Cloverhill Prison & Ors
IN THE MATTER OF PART II OF THE EXTRADITION ACT, 1965
Between/
THE ATTORNEY GENERAL
Applicant/Respondent
-and-
ANTHONY ABIMBOLA
Respondent/Appellant
AND IN THE MATTER OF ARICLE 40.4 OF THE CONSTITUTION
AND IN THE MATTER OF THE HABEAS CORPUS ACT, 1782
Between/
ANTHONY ABIMBOLA
Applicant/Appellant
-and-
THE GOVERNOR OF CLOVERHILL PRISON, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
Respondents

[2007] IESC 56

[462/06]

THE SUPREME COURT

STATUTORY INTERPRETATION

Construction

Revocation of application of Act by statutory instrument - Transitional provision - Effect on existing extradition requests - Statutory interpretation - O'Rourke v Governor of Cloverhill Prison [2004] 2 IR 456 and Criminal proceedings against Pupino (Case C-105/03) [2005] ECR I-5285 considered -Extradition Act 1965 (No 17), s 8 - Interpretation Act 2005 (No 23), s 27 - Council Framework Decision 2002/584/JHA, article 32 - Appeal allowed and release of applicant ordered (428/2006 - SC - 28/11/2007) [2007] IESC 56

Attorney General v Abimbola

CONSTITUTION ART 40.4

HABEAS CORPUS ACT 1782

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S8(1)

EUROPEAN ARREST WARRANT ACT 2003 S49

EXTRADITION ACT 1965 S8

EXTRADITION ACT 1965 S8(6)

EXTRADITION ACT 1965 S8(7)

EXTRADITION ACT 1965 S9

EXTRADITION ACT 1965 S25

EXTRADITION ACT 1965 S26(3)

EXTRADITION ACT 1965 S26(1)

EXTRADITION (AMDT) ACT 1994 S7

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S20

EXTRADITION ACT 1965 (PART II) (NO 12) ORDER 1976 SI 323/1976

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 6) ORDER 2004 SI 532/2004

EXTRADITION ACT 1965 (APPLICATION OF PART II) (NO 2) (AMDT) ORDER 2004 SI 725/2004 ART 2

EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 ART 3

EXTRADITION ACT 1965 S26(1)(a)

EXTRADITION ACT 1965 S26(1)(b)

EXTRADITION ACT 1965 S26(5)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 32

EUROPEAN ARREST WARRANT ACT 2003 S50

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S43

O'ROURKE v GOVERNOR OF CLOVERHILL PRISON & AG 2004 2 IR 456

EXTRADITION (AMDT) ACT 1994 S8

EXTRADITION ACT 1965 S27

TREATY ON EUROPEAN UNION ART 34(2)(b)

CRIMINAL PROCEEDINGS AGAINST PUPINO (CASE 105/03) 2005 ECR I-5285

INTERPRETATION ACT 1937 S22

INTERPRETATION ACT 2005 S27

1

MR. JUSTICE FENNELLY delivered the 28th day of November, 2007

2

These two appeals arise from a request made by the Federal Republic of Germany (hereinafter "Germany"), pursuant to Part II of the Extradition Act, 1965, as amended, for the extradition of the above-named Appellant to that country. He is wanted there to serve a sentence of five and a half years imposed upon conviction for rape.

3

The facts of the case straddle the period of entry into force of the European Arrest Warrant Act, 2003 (hereinafter "the Act of 2003"). The Appellant claims that the German request ceased to be effective when the Minister for Foreign Affairs made a statutory order revoking the application of the Part II of the Act of 1965 to Germany. It is not disputed that a European arrest warrant might be issued seeking the surrender of the Appellant to Germany pursuant to the 2003 Act, but those procedures have not been invoked to date.

4

The Court must decide whether the Appellant can be lawfully extradited to Germany in pursuance of the request made pursuant to the Act of 1965. It is common case that, if he cannot, his present detention is unlawful and he must be released.

Extradition Act, 1965
5

Part II of the Act of 1965 provides for extradition pursuant to international agreements or conventions between states of persons whose surrender is sought for prosecution or punishment in another state. It has been superseded by the Act of 2003, so far as the Member States of the European Union are concerned.

6

Section 8(1), in its original version, provided that, where the state is party to such an agreement or convention, the Government "may by order apply this Part in relation to that country." As amended by section 49 of the Act of 2003, section 8 confers that power on the Minister for Foreign Affairs, after consultation with the Minister for Justice, Equality and Law Reform.

7

Section 8(6) provides, as amended by the Act of 2003, that the "Minister for Foreign Affairs [after similar consultation] may by order revoke or amend an order under this section." Section 8(7), which is the central provision for the purposes of the present appeal, provides:

"On the revocation of an order applying this Part in relation to a country, this Part shall cease to apply in relation to that country."

8

Part II of the Act of 1965 contains the procedures for surrender of persons to countries in relation to which the Government (and now the Minister for Foreign Affairs) has made orders applying that Part. The basic provision is section 9:

"Where a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall, subject to and in accordance with the provisions of this Part, be surrendered to that country."

9

Section 25 specifies the documents which must accompany a request for extradition made pursuant to section 9. No issue arises in the present case regarding the sufficiency of those documents, though the Appellant makes one point concerning delay in furnishing information. Section 26(3) provides:

"If the Minister is of opinion that the information communicated to him in pursuance of section 25 is insufficient, he may request the requesting country to furnish such further information as he thinks proper and may fix a time-limit for the receipt thereof."

10

Section 26(1), as substituted by section 7 of the Extradition ( Amendment) Act, 1994, obliges the Minister, having received a request for extradition pursuant to that Part, to certify that fact. That section, as amended by section 20 of the Extradition (European Union Conventions) Act, 2001, provides that a judge of the High Court, upon production of such a certificate "shall issue a warrant for the arrest of the person concerned."

11

The Government, by S.I. 323 of 1976, applied Part II of the Act of 1965 to Germany. That Order was replaced by other orders, from time to time, to similar effect. The most recent was the Extradition Act, (Application of Part II) Order, 2000. S.I. No. 474 of 2000.

12

On 31st August, 2004, by the European Arrest Warrant Act (Designated Member States) (No.6) Order, 2004: S.I. No. 532 of 2004, the Framework Decision on the European Arrest Warrant was applied to Germany.

13

On 24th November, 2004 S.I. No. 474 of 2000 was amended by the Extradition Act, 1965 (Application of Part II) (Amendment) (No.2) Order, 2004, S.I. No. 725 of 2004, (hereinafter S.I. 725) made by the Minister for Foreign Affairs. Article 2 of S.I. 725 substitutes a new Article 3 in the Order of 2000 as follows:

"Subject to paragraphs (3) and (4) of this Article and Article 4 of this Order, Part II of the 1965 Act shall apply in relation to countries set out in the Table...other than a Member State...designated ...under section 3 of the European Arrest Warrant Act, 2003......" (emphasis added).

14

The effect of this provision was that Part II of the Act of 1965 ceased to apply in relation to Germany.

The facts
15

On 3rd September 2003, a request from Germany for the extradition from Ireland to Germany of "the Nigerian national Anthony Abimbola alias Tony (Anthony) Joel" was communicated to the Department of Foreign Affairs by means of a diplomatic Note Verbale. The request was accompanied by a number of documents, including official copies and translations of German court documents, showing that the Appellant had been convicted by the Regional Court of the City of Dortmund on 25th October 2000 of the crime of rape and sentenced to imprisonment for a term of five years and six months.

16

The Department of Foreign Affairs made a request for further information pursuant to section 26(3) of the Act of 1965. By further Notes Verbale of 20th January and 2nd February 2004, the German Embassy furnished copies of relevant parts of the German Criminal Code and information confirming that the Appellant had been present at his trial but had fled to the Netherlands prior to judgment.

17

On 7th June, 2006, the Minister for Justice, Equality and Law Reform certified pursuant to section 26(1)(a) of the Act of 1965 as amended that he had received the above request on 5th September 2003. That certificate relied on the Government Order of 19th December 2000 (S.I. No. 474) as having applied Part II to Germany, though that order had, by then been revoked.

18

On 8th June, 2006 the High Court (Hanna J.) issued a warrant, pursuant to section 26(1)(b) of the Act of 1965, as amended, for the arrest of the Appellant and ordered that he brought in accordance with the provisions of section 26(5) of the same Act before a judge of the High Court.

19

On 19th July, 2006 the Appellant was arrested pursuant to that warrant and was remanded in custody pending an extradition hearing.

20

On 3rd August, 2006 the Appellant applied for an inquiry into the lawfulness of his detention and on 9th August, 2006 that application was rejected by O'Donovan J., in an ex tempore judgment.

21

On 1st November, 2006, the High Court (MacMenamin J,) ordered the surrender of the Appellant to Germany pursuant to the provisions of Part II of the 1965 Act.

22

The Appellant was remanded in custody in consequence of that Order pending his surrender. He has remained in...

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