Lanigan v Governor of Cloverhill Prison, Lanigan v Central Authority The Minister for Justice and Equality Ireland, Lanigan v Governor of Cloverhill Prison
| Jurisdiction | Ireland |
| Judge | Denham C.J.,Charleton J.,O'Malley J. |
| Judgment Date | 26 July 2017 |
| Neutral Citation | [2017] IESCDET 88 |
| Date | 26 July 2017 |
| Court | Supreme Court |
| Docket Number | Appeal No. S:AP:IE:2016:000141 Appeal No. S:AP:IE:2017:000014 Appeal No. S:AP:IE:2017:000015 |
IN THE MATTER OF THE CONSTITUTION
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES.
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES.
AND
AND
AND
AND
[2017] IESCDET 88
Appeal No. S:AP:IE:2016:000141
Appeal No. S:AP:IE:2017:000014
Appeal No. S:AP:IE:2017:000015
THE SUPREME COURT
DETERMINATION
The EAW proceedings
The UK authorities seek the surrender of the applicant to Northern Ireland for the purpose of prosecuting him for murder and the possession of a firearm. He was arrested in this jurisdiction on foot of a European Arrest Warrant in January, 2013. The hearing under s.16 of the European Arrest Warrant Act 2003 (as amended) before the High Court (Murphy J.), concluded on the 4th September, 2015, with an order for the surrender of the applicant.
In the course of the lengthy High Court proceedings, (which included an Article 267 reference to the Court of Justice of the European Union concerning the legal effect of the statutory time limits), the applicant had sworn an affidavit in which he claimed that his life would be at risk in the event of surrender to Northern Ireland. Murphy J. found this to be credible and, in accordance with the test set out by this Court in Minister for Justice, Equality and Law Reform v. Rettinger [2010] IESC 45 decided to seek further information on this issue. She further decided to utilise the provisions of s.20 of the Act to this end, and so informed the parties. The Minister (as the Central Authority under the Act) was directed to request the information.
Anticipating that this decision might lead to the admission of disputed material by way of informal evidence, the applicant issued plenary proceedings in which he sought declarations to the effect that what he termed the 'inquisitorial and sui generis procedure imposed by the European Arrest Warrant Acts 2003 and 2012' was unconstitutional and repugnant to the EU Charter on Fundamental Rights. Murphy J. refused to deal with these new proceedings within the context of the statutory EAW procedure.
The initial response from the Northern Ireland Prison Service had been considered unsatisfactory by the trial judge (see her preliminary ruling at [2014] IEHC 702). However, she accepted the further information that was received in letters from the Prison Service and from the Police Service of Northern Ireland. She rejected a submission made on behalf of the applicant that the material was inadmissible in that form.
Final judgment was delivered by Murphy J. on the 2nd September, 2014, ( Minister for Justice and Equality v. Lanigan [2015] IEHC 677). She referred to the fact that the applicant had challenged the admissibility of the material obtained under the s.20 procedure and recapped the grounds for her ruling on the issue. Essentially, she had relied upon the judgment of this court in Minister for Justice, Equality and Law Reform v. Sliczynski [2008] IESC 73 as authority for the proposition that she was entitled to have full regard to information supplied by the issuing State.
An order for surrender of the applicant was therefore made. The trial judge declined an application by the applicant to postpone the making of the order until the plenary proceedings were determined. A certificate for leave to appeal, as required under the Act, was refused. An uncertified appeal was filed in the Court of Appeal on the 11th September, 2015.
On the 16th March, 2016, the Court of Appeal acceded to an application by the Minister to strike out the uncertified appeal (see Minister for Justice and Equality v. Lanigan [2016] IECA 91). It did so on the basis that, in the absence of any challenge to the validity of the Act or any provision thereof, that court had no jurisdiction to entertain an uncertified appeal.
An application for leave to appeal from the decision of the Court of Appeal to this Court was refused ( [2016] IESCDET 85, made on the 27th June, 2016). There were three arguments grounding that application for leave. The first was that the Act had been interpreted in such a manner as to render it unconstitutional. The second was that the applicant had issued proceedings before the order of surrender was made, contending that the process leading to that order contravened the Constitution and/or the EU Charter, and that this issue should have been referred to the Court of Justice of the European Union for a preliminary ruling. The third was that the decision of this Court in Minister for Justice, Equality and Law Reform v. Sliczynski [2008] IESC 73 was being relied upon in the High Court to support ' several far-fetched propositions of law'.
In refusing leave to appeal, this Court ruled that the procedural history of the case was such that no point of law of general public importance was involved in the decision of the Court of Appeal to strike out the appeal. It also noted the continuing existence of the plenary proceedings, in which the issues sought to be raised by the applicant could be pursued.
Having made the order for the applicant's surrender on the 4th September, 2015, Murphy J. remanded him in custody. This led to the first application under Article 40.4.4, which was dealt with by Barrett J. The applicant contended that the order made by Murphy J. was fundamentally flawed, because the process leading to it was a sui generis form of procedure that permitted a departure from fundamental norms of fair procedure and also unfairly restricted the right of appeal. In a judgment delivered on the 17th September, 2015, Barrett J. ruled that the detention of the applicant was in accordance with law (see Lanigan v. Governor of Cloverhill [2015] IEHC 574). The applicant lodged an appeal against that decision.
Under s.16(6)(b) of the Act surrender cannot take place while an Article 40.4 application is in being. Because the appeal had been lodged against the decision of Barrett J., the Minister applied on the 25th September, 2015, to the High Court (Butler J.), on notice to the applicant, for stays both on the order of surrender and on that part of the order of Murphy J. directing that if surrender was not effected within the period specified in s.16(3)A of the Act the applicant should be brought back before the court. The applicant objected to this, arguing that no stay was necessary given the provisions of s.16(6), and that to grant it would be to postpone his surrender to an indefinite date and remove the obligation on the Minister to bring him back before the court. Butler J. granted the stays.
The order of Butler J. was not appealed. Instead, the applicant made a second application for an order of release under Article 40.4, based on an argument that the stay had had the effect of removing his statutory right to be brought back before the High Court. This application was moved on the 15th October, 2015. Noonan J. refused to direct a fresh inquiry, ruling that the application amounted to a collateral attack on the orders made by Butler J. and that he had no jurisdiction to deal with it. This decision was appealed.
The Court of Appeal dealt with the appeals against the orders of Barrett J. and Noonan J. together, in a judgment delivered on the 19th October, 2016, (see [2016] IECA 293). The ruling of Barrett J. was upheld but the application that had been dismissed by Noonan J. was remitted to the High Court for an inquiry into the lawfulness of the applicant's detention. It was heard by Humphreys J. who dismissed it on the 16th December, 2016.
This application is for leave to appeal against the decision of the Court of Appeal of the 19th October, 2016, dealing with the first two applications under Article 40.4. What is currently before the Court is an amended application (permission having been given for an amendment), the original having been filed on the 1st December, 2016. That was out of time, but no reference has been made to that fact by the applicant and no extension of time has been sought. The respondent objects to any such extension
As the Court gave permission for the amendment, the application will be treated as if an extension was granted.
As already noted, the Court of Appeal had remitted one of the applications for consideration by the High Court but upheld the ruling of Barrett J. that the applicant was in lawful custody at the time of his decision. The application therefore relates to the part of the judgment upholding Barrett J.
The applicant filed written submissions in the High Court on the morning of hearing by Barrett J., (the 14th September, 2015) in which it was stated that the order sought at that stage was an order directing the plenary proceedings to be heard and determined with reasonable expedition, with the release of the applicant on bail and an adjournment of the Article 40.4 application until the plenary action was determined. It is apparent that there was then a hearing which took a full day. Barrett J. then reserved his decision and...
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Lanigan v Central Authority Minister for Justice and Equality
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