Mícheál Ó Fallúin v The Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: MR JUSTICE FENNELLY
• Judgment Date: 03 May 2007
• Neutral Citation: [2007] IESC 20
• Docket Number: [S.C. No. 7 of
• Court: Supreme Court
• Date: 03 May 2007

O FALLUIN v GOV OF CLOVERHILL PRISON

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

AND OF THE HABEAS CORPUS ACT, 1782

BETWEEN

MICHÉAL Ó FALL ÚIN

Applicant/Appellant

and

THE GOVERNOR OF CLOVERHILL PRISON

Respondent

and

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

Notice Party

[2007] IESC 20

Murray C.J.

Denham J.

Fennelly J.

No. 07/06

THE SUPREME COURT

CONSTITUTION ART 40.4

HABEAS CORPUS (IRL) ACT 1782

EUROPEAN ARREST WARRANT ACT S16(7)

CONSTITUTION ART 40.4.2

EUROPEAN ARREST WARRANT ACT S16(4)

EUROPEAN ARREST WARRANT ACT S16(1)

EUROPEAN ARREST WARRANT ACT S16(3)

EUROPEAN ARREST WARRANT ACT S18(5)

EUROPEAN ARREST WARRANT ACT S16(5)

EUROPEAN ARREST WARRANT ACT S16(9)

EUROPEAN ARREST WARRANT ACT S16(12)

RSC O.58 r18

1 This appeal raises an important point concerning the power to detain a person pursuant to the European Arrest Warrant Act, 2003. Section 16(7) of the Act provides that a person whose surrender to an issuing state has been ordered, but who is not in fact surrendered within ten days of the coming into effect of that order "shall be released from custody immediately." May he, nonetheless, be detained in custody pending an appeal to this Court?

2 There were two appeals before the Court. The first was an appeal against the order directing the Appellant's surrender. The second was and still is an appeal against the order of the High Court (Peart J) of 29th November 2005 declining to order his release pursuant to Article 40.4.2 of the Constitution. The Appellant gave notice shortly before the hearing that he was not pursuing the first appeal. That appeal has, therefore, been dismissed. The Appellant proceeded with his appeal pursuant to Article 40.4.2. At the end of the hearing, this Court decided that the respondents had not justified the lawfulness of the continued detention of the Appellant and it ordered his release. This is the statement of reasons for that decision.

3 On 21st June 2004, District Judge Workman at Bow Street Magistrates' Court, London, in the United Kingdom, issued a European Arrest Warrant seeking the arrest and surrender of the Appellant. The warrant alleges that the Appellant had conspired with others to defraud the United Kingdom Passport Agency by the provision of false passport applications, contrary to common law. The Warrant requested that the Appellant be arrested and surrendered for the purpose of a criminal prosecution. It was communicated to the Irish authorities. The Appellant was duly arrested and brought before the High Court in accordance with the provisions of the Act.

4 The Appellant filed a Notice of Objection and raised a number of legal points resisting his surrender. None of these are now relevant, since the Appellant has withdrawn his appeal against the order for his surrender. The proceedings in the High Court were conducted before Finlay Geoghegan J, who delivered several judgments. By her order dated 20th October 2005, the learned judge ordered that the Appellant be surrendered to such person as would be duly authorised by the United Kingdom to receive him and that he be committed to prison pending the carrying out of the order. The accompanying committal warrant ordered that he be lodged in Cloverhill Prison "there to be detained by the Governor thereof for a period of not less than fifteen days from the date hereof (except in the meantime the [Appellant] has consented to his being delivered up in that period) until his delivery as aforesaid and for any further period as may be necessary under law."

5 At the conclusion of the hearing in the High Court, that Court had informed the Appellant, as is required by section 16(4) of the Act of 2003, and as is recited in its order, of his right to make a complaint under Article 40.4.2 of the Constitution at any time before his surrender to the issuing state (the United Kingdom).

6 The Appellant made no application pursuant to Article 40.4.2 of the Constitution within the period of fifteen days from the making of the High Court order, during which his surrender to the issuing state was prevented by the order. This fact is central to the interpretation of section 16(7) of the Act, under which the Appellant claims that he is entitled to be released from custody. However, on 4th November, one day before the expiry of the fifteen-day period specified in the order, he served notice of appeal to this Court against the order of Finlay Geoghegan J.

7 On 23rd November 2005 the Appellant obtained a conditional order pursuant to Article 40.4.2 of the Constitution from the High Court (Peart J) requiring the Respondent Governor to produce the body of the Appellant and to certify in writing the grounds of his detention. This the Governor did by relying on the committal warrant already referred to.

8 Peart J delivered his judgment on the full hearing of the Article 40 application on 29th November 2005. Having referred to section 16(7) of the Act, Peart J stated: "at first glance, the application seems unanswerable." He was persuaded, however, by the arguments of the respondents' counsel to decline to order the release of the Appellant. His conclusion was based on the fact that, once there was an appeal to this Court from the order of the High Court, that order "is not an order which for the time being applies to the applicant." He proceeded: "It is not in force (i.e. enforceable) until that final decision has been made in relation to its execution."

9 This appeal is concerned only with the post-order procedures under the Act. Almost all relevant provisions are contained in section 16.

10 Under section 16(1), following all earlier procedures, and being satisfied that there has been compliance with specified statutory requirements, "the High Court may ......make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him..."

11 Section 16(3) provides:

"An order under this section shall not take effect until the expiration of 15 days beginning on the date of the making of the order."

12 That provision for the postponement of the surrender is to be read together with sub-sections (4) and (6). Sub-section (4) provides:

"When making an order under this section the High Court shall also make an order committing the person to a prison...... there to remain pending his or her surrender in accordance with the order under this section, and shall inform the person-

(a) that he or she...