Dundon v Governor of Cloverhill Prison

 
FREE EXCERPT

[2005] IEHC 143

THE HIGH COURT

[Record No. 378SS/2005]
DUNDON v GOVERNOR OF CLOVERHILL PRISON
IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION
AND OF THE HABEAS CORPUS ACT, 1972

BETWEEN

KENNETH DUNDON
APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON
RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
NOTICE PARTY

2005/378SS - O'Sullivan - High - 3/5/2005 - 2005 17 3535 2005 IEHC 143

CONSTITUTION ART 40.4

HABEAS CORPUS (IRL) ACT 1781

CONSTITUTION ART 40

EUROPEAN ARREST WARRANT ACT 2003 S2

EUROPEAN ARREST WARRANT ACT 2003 S3

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S16

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

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 4

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 11

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 12

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 17

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 23

EUROPEAN ARREST WARRANT ACT 2003 S16(11)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 17(3)

EUROPEAN ARREST WARRANT ACT 2003 S16(10)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 17(5)

EUROPEAN ARREST WARRANT ACT 2003 S16(7)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) 23(5)

SOFINETI v JUDGE DAVID ANDERSON & ORS UNREP HIGH 18.11.2004

EUROPEAN ARREST WARRANT ACT 2003 S16(8)

EUROPEAN ARREST WARRANT ACT 2003 S20

EXTRADITION:

European arrest warrant

Application for release from custody - European arrest warrant - Interpretation of European Union Council Framework decision- Lapse of time - Time within which final decision on execution of European arrest warrant should be taken after arrest -Whether the requested person has to be released where High Court has not made final order directing surrender within mandatory time limit - Application refused - European Arrest Warrant Act 2003 (No 45)(2005/378SS - O'Sullivan J - 3/5/2005)[2005] IEHC 143 Dundon v Governor of Cloverhill Prison

Facts: The applicant sought his immediate release from the custody of the respondent on the ground that the order made directing his surrender to the Member State (England) pursuant to a European arrest warrant was not made within the time specified by the European Arrest Warrant Act, 2003 and the European Union Council Framework Decision of 13th June, 2002. Specifically the applicant sought to rely on the provisions of Article 17 of the Framework decision, which required that a final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person. In this case the order of the High Court was made more than 90 days after the date of arrest.

Held by O’Sullivan J. in refusing the application: That Article 17 which dealt with time limits and procedures before the making of a final order did not provide that the failure to comply with the time limits therein would result or should result in the release of the applicant. The position was different once a final decision had been made and Article 23 provided that an applicant was entitled to be released if he was held in custody beyond the time limit specified for his surrender after the making of a final decision. Therefore the applicant’s detention was lawful and he was not entitled to be released.

Reporter: L.O’S.

O'Sullivan J
1

The applicant seeks his immediate release from the custody of the respondent on the ground that the order made directing his surrender to the Member State (England) pursuant to a European arrest warrant was not made within the time specified by the European Arrest Warrant Act,2003, ("the Act") and the (European Union) Council Framework Decision of 13th June, 2002.

2

The arrest warrant was issued on 29th January, 2004. The warrant was endorsed for execution on 2nd February, 2004.

3

The applicant was arrested on 11th February, 2004, and in due course brought before the High Court so that an order directing his surrender to the English authorities should be made.

4

Certain undertakings required by the Act were not before the High Court and the matter was adjourned. Subsequently undertakings were furnished and an issue arose as to whether they satisfied the requirements of the Act. On 14th May, 2004, the High Court ( Ó Caoimh J.) decided that the undertakings did comply with the requirements of the Act and ordered the surrender of the applicant. The applicant appealed and on 16th March, 2005, the Supreme Court (per Denham J.) dismissed the appeal of the applicant and confirmed the order of the High Court. On the same day, application was made to me for an inquiry under Article 40 of the Constitution into the legality of the continued detention by the respondent of the applicant.

5

Counsel have informed me that mention was made in the course of the hearing before the Supreme Court that a further legal challenge would be mounted in relation to time limits and that it was indicated by the Supreme Court that that was a matter for another day. It is clear, accordingly, that those proceedings constitute no impediment to my hearing the instant application.

6

The applicant submits that because neither the order of the High Court nor of the Supreme Court was made within the sixty days specified in the Act and in the Framework Decision, the arrest warrant and all procedures on foot of it have lapsed, without prejudice it is submitted to the possibility of a fresh request being made. The 60 days can in certain circumstances be extended to 90 days but this has not been done in the present case. In any event, the order of the High Court was made after the expiry of ninety days from the date of the applicant's arrest.

7

I set out the following definitions from s. 2 of the Act:-

8

“European arrest warrant” means a warrant, order or decision of a judicial authority of a Member State issued under such laws as give effect to the Framework Decision in that Member State for the arrest and surrender by the State to that Member State of a person in respect of an offence committed or alleged to have been committed by him or under the law of that Member State;

9

“Framework Decision” means Counsel Framework Decision of 13th June, 2002, on the European arrest warrant and the surrender procedures between Member States, the text of which -

10

(b) in the English language, is set out inPart B of the Schedule;

"“Issuing judicial authority” means, in relation to a European arrest warrant, the judicial authority in the issuing State that issued the European arrest warrant concerned;"

11

“Issuing State” means, in relation to a European arrest warrant, a Member State designated unders. 3, a judicial authority of which has issued that European arrest warrant;

12

Section 10 in part provides as follows:

13

10. - Where a judicial authority in an issuing state duly issues a European Arrest Warrant in respect of a person -

14

(a) against whom that state intends to bring proceedings for the offence to which the European arrest warrant relates,… that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing State.

15

Section 16 of the Act in part provides as follows:

16

2 16.- (1) Where a person does not consent to his or her surrender to the issuing state… the High Court may,… make an order directing that the person be surrendered to such other person as is duly authorised by the issuing State to receive him or her provided that....

17

(3) An order under this section shall not take effect until the expiration of 15 days beginning on the date of the making of the order.

18

(4) When making an order under this section the High Court shall also make an order committing the person to a prison…and shall inform the person -

19

(b) of his or her right to make a complaint under Article 40.4.2 of the Constitution at any time before his or her surrender to the issuing State.

20

(5) Subject tosubs. (6) and s. 18, a person to whom an order for the time being in force under this section apply shall be surrendered to the issuing State not later than ten days after û

21

(a) the expiration of the period specified insubs. (3), or

22

(b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority of the State and the issuing State.

23

(6) where a person makes a complaint under Article 40.4.2 of the Constitution, he or she shall not be surrendered to the issuing State while proceedings relating to the complaint are pending.

24

(7) subject tosubs. (9) a person, to whom an order for the time being in force under this section applies, who is not surrendered to the issuing State in accordance with subs. (5), shall be released from custody immediately upon the expiration of the ten days referred in subs. (5), unless, upon such expiration,...

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