McArdle v Governor of Cloverhill Prison
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 07 June 2005 |
| Neutral Citation | [2005] IEHC 195 |
| Court | High Court |
| Docket Number | [2005 No. 732SS] |
| Date | 07 June 2005 |
BETWEEN:
AND
[2005] IEHC 195
THE HIGH COURT
CONSTITUTIONAL LAW
Detention
Habeas corpus - European arrest warrant - Error in committal warrant - Whether order bad on its face - Whether error could be corrected by slip rule - Whether fundamental rights breached - Whether detention unlawful - Application of McLoughlin [1970] IR 197 and The State (McDonagh) v Frawley [1978] IR 131 considered - European Arrest Warrant Act 2003 (No 45), ss 16, 13 and 14 - Constitution of Ireland 1937, Article 40.4.2 - Relief refused
EXTRADITION
Warrant
European arrest warrant - Error in committal warrant - Whether order bad on its face - Habeas corpus -n Whether error could be corrected by slip rule - Whether fundamental rights breached - Whether detention unlawful - Re McLoughlin [1970] IR 197 and The State (McDonagh) v Frawley [1978] IR 131 considered - European Arrest Warrant Act 2003 (No 45), ss 16, 13 and 14 - Constitution of Ireland 1937, Article 40.4.2 - Habeus corpus refused (2005/732SS - Peart - 7/6/2005) [2005] IEHC 195
MCARDLE v GOVERNOR OF CLOVERHILL PRISON & MIN FOR JUSTICE
Facts: The applicant was detained in Cloverhill Prison on foot of a committal warrant on which he would be subsequently sent to Spain. Applicant claimed his detention was unlawful on a number of grounds the principle one being that there was an error contained in the committal warrant.
Held by Peart J in dismissing the application:
1. Any judge of the High Court can amend where necessary and appropriate, the order of another judge where there can be and there is no dispute about the intention of another judge and in this case the judge who issued the order from which the committal warrant arose.
2. No fundamental right of the applicant had been breached by the error in the warrant.
State (McDonagh) v Frawley [1978] IR 131 distinguished.
Reporter: BDD
EUROPEAN ARREST WARRANT ACT 2003 S16(2)
EUROPEAN ARREST WARRANT ACT 2003 S14
EUROPEAN ARREST WARRANT ACT 2003 S13
EUROPEAN ARREST WARRANT ACT 2003 S16(1)
EUROPEAN ARREST WARRANT ACT 2003 S3
EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004
RSC O.28 r11
EUROPEAN ARREST WARRANT ACT 2003 S16(4)
MCDONAGH, STATE v FRAWLEY 1978 IR 131
MCLOUGHLIN, APPL OF 1970 IR 197
Judgment of Mr Justice Michael Peartdelivered on the 7th day of June 2005:
On the 27th May 2005 an order was made by the President of the High Court that a committal warrant do issue so that the applicant may be surrendered to the Kingdom of Spain. The said order was made by the learned President after he had determined that the offence specified in the European Arrest Warrant dated 19th August 2004 and on foot of which the applicant had been previously been arrested, corresponded with an offence under the law of this State, and that other necessary requirements had been met for the purpose of the application before him.
The Committal Warrant which duly issued on foot of the said Order directs the Governor of Cloverhill Prison to lodge the applicant in Cloverhill Prison to be detained by the Governor thereof for a period of not less than fifteen days from the date of the said order until the date of his delivery, and for any further period as may be necessary under law.
The applicant is currently so detained under the Committal Warrant of the High Court issued pursuant to the said order.
The Committal warrant states therein:
"IT IS ORDERED pursuant to Section 16(2) of the European Arrest Warrant Act 2003 that the said Michael Dermot McArdle be surrendered to such person as is duly authorised by the Kingdom of Spain to receive him."(my emphasis)
Before me, the Deputy Governor has certified and confirmed that he holds the applicant custody at the said Prison under the said Committal Warrant, and he confirmed also that the applicant was detained under a Committal warrant issued pursuant to the provisions of s. 16(2) of the European Arrest Warrant Act, 2003, as amended.
The applicant now applies for an order of Habeas Corpus on the ground that his detention is unlawful. This submission is based on a number of argued grounds, but principally upon the fact that there is an error, and it is accepted by the respondent that this is so, in the Committal Warrant signed by the learned President of the High Court, namely that the said order is stated to have been made pursuant to s.16(2) of the said Act, and is therefore bad on its face "for vagueness", and/or that the said Order is bad on its face in that the provisions of s. 16(2) have no application in fact or at law to the matters in respect of which the applicant was brought before the Court, and/or that the learned President had no power or jurisdiction to make an Order under s. 16(2) of the Act, by virtue of the fact that the date for hearing of the said matter was not or, in the alternative, ought not to have been, fixed under s.14 of the said Act, but instead under the provisions of s. 13 thereof.
In other words, any order made by the Court ought to have been made in the present case pursuant to s.16(1) of the Act, and not s. 16(2) thereof.
Without prejudice to these arguments, it is also submitted that the order is bad on its face by virtue of the fact that it fails to identify properly or adequately or at all the person to whom the applicant is to be surrendered, and further, that without prejudice to either of the foregoing arguments, the said Order is bad on its face in that it fails to identify properly or at all the person to whom the applicant is to be delivered. Mr O'Hanlon has stated that these matters are perhaps matters more appropriate to an appeal from the said order, rather than to an application under Article 40.4.2 of the Constitution. I agree.
It is further submitted that that the order is bad in that it fails to comply with s.3 of the Act in that it fails to make an order designating the Kingdom of Spain as provided in that section, and/or in the alternative there being no evidence of any such order having been made by the second named respondent or having been brought to the attention of the learned President of the High Court. An affidavit filed on behalf of the respondent avers that in fact the Statutory Instrument ( S.I. 4 of 2004) by which the Minister designated the Kingdom of Spain pursuant to s.3 of the Act was among a bundle of documents handed into Court when the matter was heard by the learned President. In the light of this averment, Mr O'Hanlon has quite rightly dropped this submission as part of the case being made.
It is submitted that the facts of this case do not permit of an order being made under s. 16(2) of the said Act, and that the said order ought to have been made pursuant to s.16(1) of the said Act. This is the gravamum of the present application, and in my view this question rests to be decided on the basis of whether or not the admitted error as appearing in the said order is of such a character as to render the detention of the application unlawful. An issue which arose, but which may not need to be addressed on this occasion is whether the error is one capable of being corrected pursuant to O. 28, r. 11 of the Rules of the Superior Courts ("the slip rule") or by virtue of an inherent jurisdiction in the Court to ensure that its records correctly reflect its intention.
Before making the order for the surrender of the applicant, and signing the order for the committal of the applicant pursuant to s. 16(4) of the Act, the learned President had delivered a written judgment in which he fully set forth the provisions of s.16(1) of the Act, and immediately thereafter stated:
"On the evidence before me, I am satisfied on the matters mentioned in paragraph 16(1)(a),(b),(c) [of the European Arrest Warrant Act, 2003]........."
The President then addressed the issues raised by the applicant, namely abuse of process; delay; breach of constitutional and Convention rights; whether it would be oppressive or invidious to surrender the applicant; and the finally the point relating to the applicant's contention that the object of the European Arrest Warrant was to procure the return of the applicant for the purpose of carrying out a form of preliminary enquiry or investigation.
These issues were raised on behalf of the applicant in his Points of Objection filed and delivered prior to the hearing. Having considered and made findings in relation to these issues, the learned President concluded his judgment stating:
"In the light of the foregoing findings I propose making an order that the respondent be surrendered."
In my view, there can be no doubt whatsoever from the terms of this judgment that the President had decided, having heard the issues raised, to grant an order under s.16(1) of the Act. Subsection (2) of that section is never mentioned in the judgment, and it is reasonable to assume that it was never mentioned even in argument before the President, given that ss(2) does not apply to the case before...
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