Lanigan v Central Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 08 February 2018
• Neutral Citation: [2018] IECA 40
• Docket Number: Neutral Citation Number: [2018] IECA 40 [2017 13] [2016 560]
• Date: 08 February 2018
• Court: Court of Appeal (Ireland)

[2018] IECA 40

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Mahon J.

Hedigan J.

Neutral Citation Number: [2018] IECA 40

[2017 13]

[2016 560]

BETWEEN

Francis Lanigan

Applicant/Appellant

-And-

Central Authority, Minister for Justice and Equality, Ireland and the Attorney General

Defendants/Respondents

-And-

BETWEEN

Francis Lanigan

Applicant/Appellant

-And-

Governor of Cloverhill Prison, Minister for Justice and Equality, Ireland and the Attorney General

Defendants/Respondents

European arrest warrant – Constitutional issues – Habeas corpus – Appellant seeking to raise issues about the constitutionality of s. 16(1) and s. 20 of the European Arrest Warrant Acts 2003–2012 – Whether the constitutional issues raised were properly considered by the trial judge

Facts: The Magistrates’ court in Dungannon, Co. Tyrone, on 17th December, 2012 issued a European Arrest Warrant in respect of the appellant, Mr Lanigan, in order that he could be tried for murder and possession of a firearm with intent to endanger life, which crimes were alleged to have been committed on 31st May, 1998 in Dungannon. The appeal to the Court of Appeal to which the Central Authority was a party was an appeal against a decision and order of White J in what were described as plenary proceedings which had raised issues about the constitutionality of s. 16(1) and s. 20 of the European Arrest Warrant Acts 2003 – 2012, on the grounds that the proceedings were regarded as inquisitorial. The second appeal to the Court of Appeal was from Humphreys J and related to a habeas corpus matter/Art. 40 enquiry.

Held by Birmingham J that he would uphold the approach taken by White J. Birmingham J held that the three constitutional issues raised, the sui generis/inquisitorial issue, the restriction on cross examination arising from s. 20 and the arrangements for appeal were properly considered by the trial judge and his conclusion that the case should not be permitted to proceed on that aspect was one that was open to him and his conclusions were not ones which should be interfered with. Birmingham J held that as tolerant, flexible and indulgent as Humphreys J was, he was nevertheless firm in rejecting the application. In Birmingham J’s view he was correct to do so. Birmingham J was also in agreement with Humphreys J that EU law does not require a reinterpretation of the Constitution.

Birmingham J held that he would uphold the decision of Humphreys J to dismiss the Art. 40 application. He held that he would also uphold the decision of White J, so he dismissed both appeals. He added that he did not regard a reference to the Court of Justice of the European Union which had been canvassed as appropriate or necessary in either case.

Appeal dismissed.

JUDGMENT of Mr. Justice Birmingham delivered on the 8th day of February 2018

1 The Court has dealt with these two linked appeals together. The appeals are described as linked appeals in that they arise from a shared general background and context. The starting point for both appeals is to be found in the fact that the Magistrates' court in Dungannon, Co. Tyrone, on 17th December, 2012 issued a European Arrest Warrant in respect of Francis Lanigan (hereinafter referred to as ‘the appellant’), in order that he could be tried for murder and possession of a firearm with intent to endanger life, which crimes are alleged to have been committed on 31st May, 1998 in Dungannon. The appeal to which the Central Authority is a party is an appeal against a decision and order of White J. in what are described as plenary proceedings. In general terms those proceedings had raised issues about the constitutionality of s. 16(1) and s. 20 of the European Arrest Warrant Acts 2003 – 2012, on the grounds that the proceedings are regarded as inquisitorial. The second appeal is from Humphreys J. and relates to a habeas corpus matter/Art. 40 enquiry.

2 The procedural background to the two appeals is an extremely complex one. The background was set out by Humphreys J in Lanigan v. Governor of Cloverhill Prison & ors [2017] IEHC 23. Humphreys J. pointed out that by that time the case had been before at least nine High Court judges, it had been before the Court of Appeal and the Supreme Court on multiple occasions as well as before the Court of Justice of the European Union on one occasion. For ease of reference it is convenient to set out a summary of the narrative provided by Humphreys J.:

‘ EAW proceedings commence

2. The UK authorities allege that the applicant committed murder and was in possession of a firearm with intent to endanger life on 31st May, 1998, in Dungannon, Co. Tyrone. The UK authorities have stated that it was not until 2011 that they gathered sufficient evidence to charge the defendant. Charges were directed by the Public Prosecution Service for Northern Ireland on 4th May, 2012.

3. The Magistrates' court in Dungannon issued a European Arrest Warrant for this offence on 17th December, 2012.

4. The High Court (MacEochaidh J.) endorsed the EAW for execution by the Gardaí on 7th January, 2013. The applicant was arrested on 16th January, 2013.

5. EAW proceedings [2013 EXT 1] then came before the High Court, initially before Murphy J. Bail was refused by Edwards J. on 26th February, 2013. Legal aid was applied for on 3rd July, 2013, and also refused. The applicant subsequently re-applied for legal aid before Peart J. which was granted on 26th July, 2013.

6. Points of objection to surrender were put forward on 26th November, 2013. The hearing of the surrender application commenced on 30th June, 2014.

Constitutional proceedings commence – EAW process continues

7. On 23rd July, 2014, the applicant began constitutional proceedings seeking a declaration that the European Arrest Warrant Act 2003 was invalid by reference to its inquisitorial and sui generis procedure that allegedly permitted departure from fundamental norms of fair procedures.

8. On 17th December, 2014, Murphy J. delivered judgment on preliminary issues in the EAW proceedings.

9. On 1st December, 2014, by virtue of the commencement of legal provision to that effect, the option of referring a question to the CJEU became available in EAW proceedings generally.

10. On the same date, the applicant made a fresh bail application. On 8th December, 2014, the applicant applied to dismiss the surrender application, which was refused on the grounds that it related to the preliminary issues on which the court had already ruled. On the latter date, a further ground of objection to surrender was raised.

11. On 19th December, 2014, Murphy J. granted bail on certain conditions which the applicant could not at that point meet.

12. On 18th January, 2015, Murphy J. decided to refer a number of questions to the CJEU relating to delay in addressing the EAW request outside the time limits set out in art. 17 of the framework decision. At the same time she refused to refer a question relating to the sui generis or adversarial nature of EAW proceedings to the Luxembourg court.

13. On 9th February, 2015, the High Court dismissed an application to vary the monetary terms of bail set by the court on 19th December, 2014.

14. The reference to Luxembourg was not in fact sent until 19th May, 2015. The Advocate General commented on this at para. 94 of his opinion as part of overall ‘excessive lapse of time’ and ‘unjustified delays in the procedure’ which amounted to provisional detention of 30 months, ten times longer than the maximum period authorised by Art. 17 of the framework decision, including successive adjournments of the preliminary issues, and the ‘repeated periods of inactivity on the part of the executing judicial authority, including 4 and a half months between hearing and delivering judgment on the preliminary issues and four months between the decision to make a reference to the court for a preliminary ruling and the actual order for reference’.

15. Meanwhile the applicant had appealed to the Court of Appeal in relation to bail. That court allowed the appeal on 6th July, 2015, and relaxed the bail conditions.

16. The Court of Justice gave judgment answering the referred questions, on 6th July, 2015, ( Case C-237/15 Minister for Justice and Equality v. Lanigan [2016] Q.B. 252).

17. On 4th September, 2015, the High Court (Murphy J.) directed the surrender of the applicant to the UK under the Act of 2003 and his detention in Cloverhill pending surrender. She refused leave to appeal. An appeal was in fact brought without leave (2015/482) but the Court of Appeal refused that appeal ( Minister for Justice and Equality v. Lanigan [2016] IECA 91 (Unreported, Court of Appeal (Peart J. (Irvine and Mahon JJ. concurring)), 16th March, 2016). The Supreme Court refused leave to appeal on 27th June, 2016 ( Minister for Justice and Equality v. Lanigan [2016] IESCDET 85 (Unreported, Supreme Court (Clarke, MacMenamin and Laffoy JJ.)). That decision appears to be the final decision on the execution of the EAW as far as domestic law is concerned. The 60 day period is meant to cover that between arrest (January, 2013) and final decision on execution. If the latter date was June, 2016 then the period involved was around 20 times that provided for by EU law.

18. Mr. Barron [senior counsel for the Authority] has raised the question as to whether the CJEU requires the State to also complete any consequent Article 40 applications during the period of 60 days specified for the final decision on execution of the EAW as set out in art. 17(3) of the framework decision. That would appear to be correct in that art. 23 which provides a 10 day provision for execution, would naturally only run from the date at which the legal process is at an end and the execution is free to proceed. Independently of that there is an overall obligation of urgency in relation to the execution of the warrant (art. 17(1)).

19. On 9th November, 2015, the applicant was...