Lanigan v Governor of Cloverhill Prison

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date23 January 2017
Neutral Citation[2017] IEHC 23
CourtHigh Court
Docket Number[2015 No. 1662 S.S.]
Date23 January 2017

[2017] IEHC 23

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 1662 S.S.]

BETWEEN
FRANCIS LANIGAN
APPLICANT
AND
THE GOVERNOR OF CLOVERHILL PRISON, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

Crime & Sentencing – Murder – Possession of Firearm – Arrest – Constitutional Proceedings – European Arrest Warrant Act 2003 – Habeas Corpus Application – Scope of Art. 40 Inquiry – Detention – Delay.

Facts: Following a proposal to surrender and the subsequent detention, the applicant sought Art. 40 application, an application for leave to appeal to the Supreme Court in relation to the first Art. 40 application. The applicant had been alleged to have committed murder and being in possession of a firearm with the intent to endanger life. The applicant instituted constitutional proceedings seeking a declaration that the European Arrest Warrant Act 2003 would be invalid in the present case. The applicant argued that the grant of the stay under an inherent jurisdiction would not be available. The applicant further contended that the detention would be unlawful.

Mr. Justice Richard Humphreys held that the failure to comply with the time limits in the framework decision would not render the detention unlawful. The Court observed that the application to stay would be premature and unnecessary. The Court held that the time never began to run until the conclusion of Art. 40 application. The Court held that the application to refer issues to CJEU would be refused. The Court held that the Art. 40 application be dismissed. The Court further held that the existing bail would be continued to allow the applicant to apply to the Court of Appeal to extend the bail.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 23rd day of January, 2017
1

The present application is the fourth set of High Court proceedings relating to the applicant's proposed surrender to the UK. The matter has now been before at least nine judges sitting in this court (Murphy J., Edwards J., Peart J., White J., Hunt J., Barrett J., Butler J., Noonan J. and myself) and, on multiple occasions, the Court of Appeal and Supreme Court, as well as, on one occasion, the Court of Justice of the European Union. At least three strands of the proceedings remain ongoing including the present Article 40 application, an application for leave to appeal to the Supreme Court in relation to the first Article 40 application, and a possible appeal to the Court of Appeal in relation to the applicant's constitutional action. Having regard to the foregoing it may be helpful to begin by setting out how the matter has evolved to this point.

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 proceeding 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 ½ 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 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 apparently again granted bail by the Court of Appeal (2015/496) (Kelly, Irvine and Hogan JJ.) in the s. 16 proceedings [2013 EXT 1]. A fresh order for bail appeared to be required following the determination of the substantive EAW proceedings by the High Court.

The first habeas corpus application
20

On 9th September, 2015, the applicant made a first Art 40.4 application [2015 No. 1415 SS] before White J., who directed that the application for an inquiry be made on notice. That was done before Hunt J. on 10th September, 2015, who ordered an inquiry which took place before Barrett J. on 14th September, 2015. The order drawn up on that date states that the matter was adjourned, to 17th September, 2015, not adjourned for judgment. However Barrett J. in fact delivered judgment on 17th September, 2015. At the conclusion of that Article 40.4 application the applicant applied for bail and was refused. The order of Barrett J. was appealed to the Court of Appeal (2015/488).

21

On 15th September, 2015, Butler J. ordered a stay on the order for surrender on the application of the state in the light of the proceedings before Barrett J. The order is in an unusual form in that it is entitled in both the extradition proceedings [2013 No 1 EXT] and in the first habeas corpus [2014 No. 1415SS, although the Court of Appeal record number 2015/488 is also cited]. Mr. Barron submits that the correct proceedings in which the order should be granted is within the 2013 extradition proceedings. He was not in a position to explain why the order was also granted in the first habeas corpus application.

The second habeas corpus application
22

A second article 40 application (the present case) was launched arising from the stay application. On 15th October, 2015, an ex parte...

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