Minister for Justice Equality & Law Reform -v- Fallon aka O'Falluin, [2005] IEHC 321 (2005)

Docket Number:2005 36 EXT
Party Name:Minister for Justice Equality & Law Reform, Fallon aka O'Falluin
Judge:Finlay Geoghegan J.

THE HIGH COURT Record No. 2005 36EXTIN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 (AS AMENDED) BETWEEN THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORMAPPLICANT ANDMICHAEL FALLON AKA MICHÉAL Ó FALLÚIN.RESPONDENT JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 9th day of September, 2005On 5th and 6th September, 2005, a hearing under s. 16 of the European Arrest Warrant Act, 2003 was held for the purpose of determining whether the High Court should make an order directing that the respondent be surrendered to the United Kingdom pursuant to a European arrest warrant issued by District Judge Workman at Bow Street Magistrates' Court on 21st June, 2004. This judgment is being given on the issues argued in the course of that hearing. In the course of the hearing, it became apparent that there were potentially other issues, in relation to which further evidence might be necessary. The necessity of further evidence depended upon my decision on the issues being argued and hence I agreed to give judgment on those issues.Factual and Procedural BackgroundOn 16th December, 2003, at Bow Street Magistrates' Court a warrant of arrest was issued in respect of the respondent in relation to an alleged offence of conspiring with others named therein to defraud the United Kingdom Passport Agency by the provision of false passport applications contrary to common law. That warrant was sent to Ireland and received in the Garda Commissioner's Office in December, 2003. It was then intended to be executed in Ireland pursuant to the provisions of Part III of the Extradition Act, 1965. It was endorsed by an Assistant Commissioner on 2nd January, 2004, and the respondent was arrested on such warrant endorsed by the Assistant Commissioner on 8th January, 2004, and brought before the High Court.The respondent was subsequently granted bail and remanded on bail to the High Court on successive dates the last of which was 29th June, 2004.There were a number of warrants from the United Kingdom which had been received by the Garda Commissioner's Office prior to 1st January, 2004, which were endorsed by the Assistant Commissioner on 2nd January, 2004, and subsequently executed. One such warrant related to a Thomas James O'Rourke. In proceedings relating to the warrant executed against Mr. O'Rourke a challenge was made to the validity of the warrant having regard to the coming into effect of the European Arrest Warrant Act, 2003, on 1st January, 2004. It was contended that s. 50 (1) of the Act of 2003 repealed Part III of the Act of 1965 and as the warrant in question had not been "produced to the Commissioner" prior to 1st January, 2004, it could not be dealt with in accordance with Part III of the Act of 1965 having regard to s. 50 (2) (b) of the Act of 2003. That challenge was ultimately upheld in a decision of the Supreme Court given on 13th May, 2004, O'Rourke v. Governor of Cloverhill Prison [2004] 2 IR 456. The warrant was held to be unlawful and Mr. O'Rourke released.It appears that following such Supreme Court decision, an application was made on consent, to the High Court in the proceedings then pending against the respondent herein to withdraw the application for an order under s. 47 of the Act of 1965 and to discharge the respondent. Such order of the High Court was made on 22nd June, 2004.In the mean time on 21st June, 2004, the European arrest warrant, the subject matter of the present proceedings, was issued by Bow Street Magistrates' Court. It was transmitted by fax to this jurisdiction on that date. On 17th June, 2005, an application was made to the High Court pursuant to s. 13 of the Act of 2003 for endorsement for execution in the State. I was informed that Peart J. who heard the application was not satisfied on the evidence then before him that such application had been made "as soon as may be" after receipt by the Central Authority in the State of the European arrest warrant. Following the filing of an affidavit of Charles Wallace, solicitor, of 4th July, 2005, dealing with the delay, the European arrest warrant was endorsed pursuant to an Order of Peart J. on 5th July, 2005.On 6th July, 2005, the respondent was arrested on the European arrest warrant and has since that date been remanded in custody and is detained at Cloverhill Prison. He made an unsuccessful application for bail to Peart J. He also made an unsuccessful application for release pursuant to Article 40.4 of the Constitution. The judgment in that application was delivered by Peart J. on 10th August, 2005.The respondent has not consented to surrender to the United Kingdom. The respondent has sworn an affidavit dated 3rd August, 2005. A notice of objection has been filed on his behalf. An affidavit of Peter Cauldwell, Barrister of England and Wales has also been filed on his behalf.Objections to surrenderThe grounds upon which it is contended on behalf of the respondent that this court should not make an order for surrender under s. 16 of the Act of 2003 may be summarised as follows:1. The European arrest warrant issued on 21st June, 2004, is based upon the warrant of arrest issued by Bow Street Magistrates' Court on 16th December, 2003 ("the 2003 Warrant"). The 2003 Warrant was executed in this jurisdiction...

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