Busby v Min for Justice
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 04 March 2014 |
| Neutral Citation | [2014] IEHC 149 |
| Court | High Court |
| Date | 04 March 2014 |
[2014] IEHC 149
THE HIGH COURT
EUROPEAN ARREST WARRANT ACT 2003 S16(1)
EUROPEAN ARREST WARRANT ACT 2003 S16(10)
EUROPEAN ARREST WARRANT ACT 2003 S16(12)
MIN FOR JUSTICE v FUSTIAC UNREP EDWARDS 6.4.2011 2011/36/10075 2011 IEHC 134
AG, PEOPLE v O'CALLAGHAN 1966 IR 501 1968 102 ILTR 45
BAIL ACT 1997 S2
MIN FOR JUSTICE v ZIELINSKI UNREP EDWARDS 10.2.2011 2010/36/9042 2011 IEHC 45
BAIL ACT 1997 S1
ANTI-TERRORISM CRIME & SECURITY ACT 2001 S114(2) (UK)
CRIMINAL LAW ACT 1977 S51(2) (UK)
CRIMINAL LAW ACT 1977 S51(4) (UK)
POST OFFICE (AMDT) ACT 1951 S13(1)(A)
MIN FOR JUSTICE v BUSBY UNREP EDWARDS 30.7.2013 2013 IEHC 455
Bail Application – Objections to Bail - European Arrest Warrant – s. 16(12) Of The European Arrest Warrant Act 2003, as Amended By The European Arrest Warrant (Application To Third Countries And Amendment) And Extradition (Amendment) Act 2012 - s. 114(2) of the Anti-terrorism, Crime and Security Act 2001 - s. 51(2) and (4) of the Criminal Law Act 1977
Facts: The United Kingdom of Great Britain and Northern Ireland sought rendition of the applicant on foot of a European arrest warrant for the purpose of prosecuting him for several offences. The offences alleged in the warrant consist of one instance of ‘Threats,’ one instance of ‘Hoaxes involving noxious substances or things,’ contrary to s. 114(2) of the Anti-terrorism, Crime and Security Act 2001, and five instances of ‘Bomb Hoaxes,’ contrary to s. 51(2) and (4) of the Criminal Law Act 1977. The Court made an order pursuant to s. 16(1) of the European Arrest Warrant Act 2003 (‘the Act of 2003’) surrendering the applicant. The applicant subsequently applied to the Court pursuant to s. 16(11) of the Act of 2003 for a certificate that the Court”s decision involved a point of law of exceptional public importance. The Court granted the certificate and the applicant lodged an appeal in the Supreme Court against the surrender order. The applicant then sought to be admitted to bail under s. 16(12) of the Act of 2003 pending the Supreme Court appeal hearing. The respondent did not consent to bail.
Held by Edwards J,
The Court had to decide if the presumption in favour of bail had been rebutted. If so, the Court would then have to assess whether sufficient bail conditions could be imposed on the applicant to address the risk giving rise to the rebuttal. It was accepted by the Court that it would be months before the applicant”s appeal would come on for hearing in the Supreme Court. In addition, the applicant had offered an address for bail purposes and did not pose any flight risk. The respondents main objection to bail was the risk that the applicant would deliberately commit further offences in order to postpone his surrender to Scotland in case he was unsuccessful in his Supreme Court appeal. In the Courts view there was no cogent evidence that the applicant planned to commit further offences for this purpose and the concern expressed by the respondent was entirely speculative. The Court decided that the presumption in favour of bail had not been rebutted and the applicant was granted bail upon certain conditions.
JUDGMENT of Mr Justice Edwards delivered on the 4th day of March, 2014.
The applicant is the subject of a European arrest warrant issued by Sheriff Alistair Noble, the Sheriff of Lothian and Borders at Edinburgh, on the 13 th of July, 2012. The United Kingdom of Great Britain and Northern Ireland is seeking the rendition of the applicant on foot of this warrant for the purposes of prosecuting him for the seven offences particularised therein. On the 30 th of July, 2013 this Court made an order pursuant to s. 16(1) of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003") surrendering the applicant. Subsequently, the applicant applied to this Court pursuant to s. 16(11) of the Act of 2003 for a certificate that this Court's decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The Court granted the said certificate and the applicant duly lodged an appeal against this Court's said surrender order.
The applicant now seeks to be admitted to bail pending the hearing of his said Supreme Court appeal, and requests this Court to grant him such bail in the exercise of its jurisdiction to do so under s. 16(12) of the Act of 2003.
The application for bail is grounded in the first instance by the affidavit of applicant's solicitor, Ms. Jane O'Neill, sworn on the 13 th of February, 2014, which is in turn verified by a short affidavit of verification sworn by the applicant himself on the 28 th of February, 2014.
Ms. O'Neill deposes to the following matters (inter alia):
2 "6. I say that the Applicant has been in custody on foot of this European Arrest Warrant since 18 th July 2012. I say that I am instructed that the Applicant is desirous that he be admitted to bail pending the determination of the said appeal to the Supreme Court.
7. I say that I am instructed that if granted bail the Applicant will reside at accommodation provided by the Homeless Placement Service of Dublin City Council which at present is envisaged to be the Granby Centre, 9-10 Granby Row, Dublin 1 or in the alternative at an address to be approved by the Respondent herein.
8. I say that I am instructed that the Applicant suffers from multiple sclerosis necessitating confinement to a wheelchair and is of very limited mobility, and I beg to refer to a true copy of the letter of Dr Deirdre Hegarty upon which marked with the letters "JON 1" I have signed my name prior to the swearing hereof.
9. I say and am instructed that a bench warrant may have issued for the Applicant while he was in custody in the 1980s and that to the best of my knowledge no other bench warrants have issued for the Applicant in the past.
10. I say that I am instructed that the Applicant is of very limited means and prays this Honourable Court to fix bail in his own bond without the requirement of a cash lodgment.
11. I say that I am instructed that the Applicant is a Scottish national who has resided in Ireland for more than thirty years.
12. I say that that I am instructed that the Applicant will undertake to surrender any documents which might allow him to travel from the jurisdiction, and will undertake not to apply for any new travel documents.
13. I say that I am instructed that the Applicant's date of birth is 1 st August 1948.
14. I say that I am instructed that the Applicant will abide by any bail conditions that this Honourable Court may see fit to impose upon him.
15. I say that an application will be made for a recommendation for payment under the Legal Aid (Custody Issues) Scheme in respect of this application.
16. I therefore pray this Honourable Court to grant bail, and I am instructed to say that if the Applicant is granted bail pending the determination of the aforesaid proceedings he will undertake to this Honourable Court that he will attend at each and every occasion required of him and will abide by any conditions that this Honourable Court may see fit to impose upon him."
The respondent does not consent to bail. It is accepted by all concerned that in circumstances where the applicant is wanted for prosecution, and is not a person who has been convicted of the offences to which the European Arrest Warrant relates, the applicable legal principles are those set out in this Court's judgment in Minister for Justice, Equality and Law Reform v. Fustiaç [2011] IEHC 134, (Unreported, High Court, Edwards J., 6 th of April, 2011). In summary, the principles set forth in The People (Attorney General) v. O'Callaghan [1966] I.R. 501 apply and such a person has the benefit of an effective presumption in favour of the granting of bail. That presumption may be rebutted and, in a case where bail is objected to, the criterion to be applied by the Court in considering whether the presumption is rebutted in the circumstances of the particular case is that set out in O'Callaghan, namely "is there a likelihood of the prisoner attempting to evade justice?" Moreover in applying that criterion, the Court should have regard to those factors identified in O'Callaghan as being of potential relevance, and consider them to the extent that they are in fact relevant in all the circumstances of the case, as well as any special circumstances tending to magnify the risk of the prisoner absconding or otherwise attempting to evade justice.
Clearly, where bail is being sought pending an appeal against an order for surrender, the fact that the High Court has made an order for surrender would be an additional circumstance to be taken into account where the concern related to the possibility of the applicant for bail failing to turn up to prosecute his appeal.
In the present case, however, the concern expressed is not that the applicant will fail to turn up to prosecute his appeal, but rather that he may seek to evade justice by committing other crimes in this jurisdiction that would, in the event that his appeal is unsuccessful, result in his ultimate surrender having to be postponed.
Counsel for the respondent accepts that s. 2 of the Bail Act 1997 does not...
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