Dundon v Governor of Cloverhill Prison

 
FREE EXCERPT

[2005] IESC 83

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

[S.C. No. 171 of 2005]
DUNDON v GOVERNOR OF CLOVERHILL PRISON
Between/
Kenneth Dundon
Applicant/Appellant

and

Governor of Cloverhill Prison
Respondent

and

Minister for Justice, Equality and Law Reform
Notice Party.

171/2005 - Denham Geoghegan [Murray Hardiman Fennelly agr] Fennelly [Murray Hardiman agr] - Supreme - 19/12/2005 - 2006 1 IR 518 2006 1 ILRM 321 2005 17 3552 2005 IESC 83

EC TREATY TITLE IV ART 29

EC TREATY TITLE IV ART 32

EC TREATY TITLE IV ART 31(a)

EC TREATY TITLE IV ART 31(b)

COUR DE CASSATION FRENCH SECTION 2ND CHAMBER 28.12.2004 NO P.04.1665.F

EXTRADITION ACT 2003

EXTRADITION ACT 1965

EUROPEAN ARREST WARRANT ACT 2003 S13(5)

EUROPEAN ARREST WARRANT ACT 2003 S16(3)

EUROPEAN ARREST WARRANT ACT 2003 S16(4)

EUROPEAN ARREST WARRANT ACT 2003 S18

EUROPEAN ARREST WARRANT ACT 2003 S16(5)

EUROPEAN ARREST WARRANT ACT 2003 S16(6)

EUROPEAN ARREST WARRANT ACT 2003 S16(10)

EUROPEAN ARREST WARRANT ACT 2003 S16(11)

CRIMINAL PROCEEDINGS AGAINST MARIA PUPINO C-105/03 COURT (GRAND CHAMBER) 16.06.2005

DUNDON v GOVERNOR OF CLOVERHILL PRISON UNREP HIGH COURT O'SULLIVAN 3.5.2005

HABEAS CORPUS ACT 1782

CONSTITUTION ART 40.4

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S16(7)

VON COLSON & KAMANN v LAND NORDREIN-WESTFALEN CASE 14/83 1984 ECR 1891

MARLEASING C-106/89 1990 ECR I 4135 PARA 8

EC TREATY ART 249

EC TREATY ART 10

EC TREATY TITLE VI

EC TREATY ART 34(2)(b)

EC TREATY ART 35(4)

EC TREATY ART 35(7)

EUROPEAN ARREST WARRANT ACT 2003 S16(1)(e)

EUROPEAN ARREST WARRANT ACT 2003 PART 3 S37

CRIMINAL LAW:

Extradition

Habeas corpus - European arrest warrant - Time limits for surrender - Final order - Elapse of time limit - Failure of High Court to make final order within 60 days - Absence of extension of time - Whether time limits mandatory - Whether automatic entitlement to release - Expiration of time due to proceedings instigated by applicant - European Arrest Warrant Act 2003 (No 45), ss 16(10) & (11) - Constitution of Ireland 1937, Article 40.4 - Council Framework Decision 2002/584/JHA, article 17 - Applicant's appeal dismissed (171/2004 - SC 19/12/20050 [2005] IESC 83 - [2006] 1 ILRM 321; [2006] 1 IR 518 Dundon v Governor of Cloverhill Prison

Facts: section 16 of the European Arrest Warrant Act 2003 provides that where a person has not consented to his surrender, the High Court may make an order that he be surrendered to the issuing State provided, inter alia, that his surrender is not prohibited by part 3 of the Council Framework Decision. Section 13 of the Act of 2003 provides for the bringing of the person before the High Court and the fixing of a date for such hearing under section 16 and for the continuing remand of that person in custody or on bail until then. On the 29th January, 2004, a European arrest warrant was issued by Thames Magistrates Court in which the arrest and surrender of the applicant was sought. That warrant was endorsed for execution on the 2nd February, 2004 by the High Court and the applicant was arrested on foot thereof on the 11th February, 2004. He had been remanded in the custody of the respondent since then pending various adjournments so as to allow undertakings from the issuing state to be given and appeals to be taken. The applicant claimed that time limits established under the European arrest warrant scheme had not been met by the judicial authorities in Ireland and that as a consequence he was not in lawful custody. The High Court rejected that submission. The applicant appealed the High Court decision to the Supreme Court.

Held by the Supreme Court (Murray CJ: Denham; Hardiman; Geoghegan and FennellyJJ) in dismissing the appeal that a national court, when applying national law in relation to the European arrest warrant, should do so as far as possible in the light of the Council Framework Decision, to attain the result sought. That could not be done if it was contrary to the national law, but the national court should consider the whole of the national law to see if it could be applied so as not to produce a result contrary to the Council Framework Decision. The Act of 2003 did not establish mandatory lime limits prior to the final order for surrender being made by the Court in the same way as it did to the period after such final order and did not give to a person the right to be released until such final order is made. The Act made provision aspiring to have the matter dealt with urgently but the court still had a duty to ensure that fair procedures were followed when dealing with a request under the scheme, which included enabling time to obtain undertakings form the issuing authority and time to appeal.

Reporter: P.C.

Denham J.
1. Issues
1

Time limits under the Council Framework Decision of 13th June 2002, hereinafter referred to as the Council Framework Decision, and the European arrest warrant Act,2003, hereinafter referred to as the Act of 2003, are the issues arising on this appeal. Kenneth Dundon, the applicant/appellant, hereafter referred to as the applicant, contends that he is in unlawful custody because time limits established under the European arrest warrant scheme have been breached. The appeal is based on the interpretation of two documents, (a) the Council Framework Decision, and (b) the Act of 2003.

2. A change in arrangements
2

The Council Framework Decision and the Act of 2003 mark a change in extradition arrangements between the States of the European Union. This change had been under consideration prior to the Twin Towers destruction in New York on 9/11. However, as a consequence of 9/11 the process advanced more rapidly in the European Union and culminated in the Council Framework Decision. Subsequently the Act of 2003 was enacted in Ireland. This new scheme represents a development from the system of extradition between the States of the European Union, to a European arrest warrant procedure. The new scheme is representative of the growth, consequent on the 1999 Tampere Summit, of the concept of an Area of freedom, security and justice within the European Union.

3.1 Council Framework Decision
3

The Council Framework Decision on the European arrest warrant was adopted by the Council of the European Union on the 13th June 2002, under Title VI of the Treaty of the European Union. Title VI in Article 29 states the objective of providing citizens with a high level of safety within an area of freedom, security and justice. The means to obtain this objective include closer cooperation between judicial authorities in the European Union in accordance with the provisions of Article 31, Article 32 and Article 34(2). Article 31 (a) and (b) state:

"Common action on judicial cooperation in criminal matters shall include:"

(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions;

(b) facilitating extradition between Member States;"

4

Article 34(2) provides:

"The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this Title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:"

(a) …

(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect;

…"
5

Thus, the Council Framework Decision does not have direct effect, and is not part of the domestic law of this State. It is binding on the State as to the result to be achieved. It promotes common action by the States of the European Union to advance approximation of the laws in the States on specific issues. It is left to the national authorities to chose the form and method of implementation. While the Council Framework Decision is not per se part of the national law it is useful to consider its terms in some depths as it is the background upon which the Act of 2003 was created and it is referred to in the said Act.

3.2 Recitals
6

The Recitals of the Council Framework Decision refer to the objectives of the Decision. These indicate an aspiration to simplify procedures, reduce delay and advance judicial co-operation within an area of freedom, security and justice. Thus, for example, the fifth recital states:

"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice".

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