Department of Justice and Equality v Gleeson

• Jurisdiction: Ireland
• Judge: Mr. Justice Alexander Owens
• Judgment Date: 22 July 2019
• Neutral Citation: [2019] IEHC 562
• Court: High Court
• Docket Number: [No. 2019/107 EXT]
• Date: 22 July 2019

[2019] IEHC 562

The High Court

Owens Alexander J.

[No. 2019/107 EXT]

In the Matter of the European Arrest Warrant Act 2003 (as amended)

Between:

Department of Justice and Equality

Applicant

-and-

Darren James Gleeson

Respondent

European arrest warrant – Surrender – Abuse of process – Applicant seeking the surrender of the respondent – Whether the respondent’s conviction for an offence of membership of the Irish Republican Army in the State precluded the High Court from executing a European arrest warrant for his surrender to Northern Ireland to face a charge of the offence of belonging to the Irish Republican Army

Facts: The respondent, Mr Gleeson, made the case that his conviction in late 2017 for an offence of membership of the Irish Republican Army in the State precluded the High Court from executing a European arrest warrant for his surrender to Northern Ireland to face a charge of the offence of belonging to the Irish Republican Army at the time of two meetings which he was alleged to have attended at an address in Newry in 2014. He asserted that the Northern Ireland charge related to a “continuing offence” of belonging to that unlawful organisation and that he had already been convicted of that offence in 2017. He was serving a term of imprisonment which was imposed following his 2017 conviction for membership of the Irish Republican Army. This related to activities which he was involved in within the State between February and May 2017.

Held by Owens J that he did not accept that view of the nature of the offence created by s. 21 of the Offences against the State Act 1939 or of the nature the offence charged in Northern Ireland of belonging to the Continuity Irish Republican Army or that the offence charged in Northern Ireland was the same as the offence in respect of which he stood convicted in Ireland’s jurisdiction. Owens J did not accept that there was anything in the wording of s. 41(1) of the European Arrest Warrant Act 2003 which created some sort of special rule in Ireland applicable to the circumstances of this case. Owens J did not agree with the respondent’s contention that Minister for Justice and Equality v Guz (2012) IEHC 388 is an authority for the proposition that the legal rules in Ireland relating to the principle of ne bis in idem are any different from the rules applicable anywhere else in Europe. Owens J held that it would not be a duplication of prosecution for the same offence or equivalent abuse of process for the respondent to stand trial in Northern Ireland for an offence of belonging to the Irish Republican Army at the time when it was alleged that he was at meetings in Newry in 2014; the particulars of that alleged offending had no relation to subsequent offending of the same type which he was involved in while in this jurisdiction in 2017.

Owens J held that he would direct under s. 20 of the 2003 Act that the issuing state provide him with information on the instructions or training in the making or use of firearms and explosives which the respondent was alleged to have received at the meetings in Newry and on what was being relied on to support what had to be established under s. 8 of the Terrorism Act 2006 and adjourn the application to 31st July 2019 with the respondent remanded in custody for this purpose. The other proofs set out in s. 16 were in order and on that date, Owens J intended to direct the surrender of the respondent under s. 16 of the 2003 Act.

Surrender directed.

Judgment of Mr. Justice Alexander Owens delivered on 22ndJuly 2019

1 The principle that there should not be duplicity of trial or punishment for any criminal act is central to a variety of legal rules. These rules relate to duplication of offences in indictments or charges, autrefois convict and acquit, analogous legal rules relating to abuse of process by repeated prosecutions and what is referred to as ne bis in idem under Article 3 (2) of Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) which provides that a judicial authority of the Member State of execution must refuse to execute a European arrest warrant where the person named in the warrant has been finally judged by a Member State in respect of ‘ the same acts’ as are the subject of the European arrest warrant.

2 The respondent makes the case that his conviction in late 2017 for an offence of membership of the Irish Republican Army in the State precludes this Court from executing a European arrest warrant for his surrender to Northern Ireland to face a charge of the offence of belonging to the Irish Republican Army at the time of two meetings which he is alleged to have attended at an address in Newry in 2014.

3 He asserts that the Northern Ireland charge relates to a ‘ continuing offence’ of belonging to this unlawful organisation and that he has already been convicted of this offence in 2017. He is currently serving a term of imprisonment which was imposed following his 2017 conviction for membership of the Irish Republican Army. This related to activities which he was involved in within the State between February and May 2017.

4 I do not accept this view of the nature of the offence created by section 21 of the Offences against the State Act 1939 or of the nature the offence charged in Northern Ireland of belonging to the Continuity Irish Republican Army or that the offence charged in Northern Ireland is the same as the offence in respect of which he stands convicted in this jurisdiction. I do not accept that there is anything in the wording of section 41 (1) of the European Arrest Warrant Act 2003 which creates some sort of special rule in Ireland applicable to the circumstances of this case.

5 The phrase ‘ in whole or in part’ in section 41 (1) relates to repeated proceedings in relation to the same act where the facts relied on as constituting the offence include within them facts which have been the subject of a separate prosecution for another offence. This has nothing got to do with the present case which involves two separate instances of offending in different years in different jurisdictions.

6 I do not agree with the respondent's contention that Minister for Justice and Equality v. Guz (2012) IEHC 388 is an authority for the proposition that the legal rules in Ireland relating to the principle of ne bis in idem are any different from the rules applicable anywhere else in Europe. The Irish courts must construe the implementing legislation in the 2003 Act in a manner consistent with the Framework Decision and apply the decisions of the European Court. I should point out that the Framework Decision does not contain an equivalent provision to Article 58 of the Convention Implementing the Schengen Agreement which expressly stated that its provisions did not preclude the application of broader national provisions on the ne bis in idem principle with regard to judicial decisions taken abroad. This is referred to in the Decision of the European Court of Justice in Case C-367/05 Kraaijenbrink v. Netherlands [2007] ECR 1-6619 cited by the applicant.

7 This Court is obliged to look at the acts which are relied on as constituting the offending as set out in the warrant issued by the judicial authority of the issuing Member State. I must ask myself whether these acts are the same acts as were the subject matter of a final criminal determination in the State or another Member State. In my view the law on this is correctly stated in Nicholls, Montgomery and Knowles, The Law of Extradition and Mutual Assistance, (3rd edn, OUP 2013) paras 5.32-5.37. Applying this test, I conclude that it would not be a duplication of prosecution for the same offence or equivalent abuse of process for the respondent to stand trial in Northern Ireland for an offence of belonging to the Irish Republican Army at the time when it is alleged that he was at meetings in Newry in 2014. The particulars of that alleged offending have no relation to subsequent offending of the same type which he was involved in while in this jurisdiction in 2017.

8 On 1st November 2017 the respondent pleaded guilty at the Special Criminal Court to an offence of membership of the Irish Republican Army within the State on 18th May 2017, contrary to section 21 of the Offences against the State Act 1939 as amended by the Criminal Justice (Terrorist Offences) Act 2005.

9 An affidavit sets out the facts of the offending. An FBI operative carrying out an investigation on the dark web was contacted by him in February 2017 with a view to buying hand grenades. He indicated to that operative in April that if the deal went well he had people who ‘ want a lot of these so you will make very good buyers’. In May he was also looking for detonators, ‘ Semtex’ explosives and incendiary grenades. On 18th May 2017 DHL delivered a package to him at an address in Blanchardstown, County Dublin. The Gardaí then raided the house and arrested him. The prosecution also proposed to call evidence of a Chief Superintendent in an Garda Síochána of belief that the respondent was on 18th May 2017 a member of the Irish Republican Army. Section 3 (2) of the Offences against the State (Amendment) Act 1972 provides that if such an officer gives evidence in proceedings relating to an offence under section 21 stating ‘that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.’

10 Section 18 of the Offences against the State Act 1939 sets out what constitutes an ‘ unlawful organisation’ for the purposes of the that Act. The stated purpose of this section is ‘ to regulate and control in the public interest the constitutional right of citizens to form associations.’ It declares organisations which advocate objects or engage in activities such as raising or...