Min for Justice v Adam

• Jurisdiction: Ireland
• Judge: Mr Justice John Edwards
• Judgment Date: 10 March 2011
• Neutral Citation: [2011] IEHC 87
• Docket Number: Record No 197 EXT/No 2010
• Court: High Court
• Date: 10 March 2011

[2011] IEHC 87

THE HIGH COURT

Record No 197 EXT/No 2010

Min for Justice v Adam (No 2)

Approved

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant

- AND -

JOSEF ADAM

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN CHARTER OF FUNDAMENTAL RIGHTS ART 47

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN ARREST WARRANT ACT 2003 S16(3)

EUROPEAN ARREST WARRANT ACT 2003 S18(3)

LAW REFORM COMMISSION CONSULTATION PAPER ON THE COURT POOR BOX CP31-2004

PROBATION OF OFFENDERS ACT 1907 S1(1)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 24(1)

TREATY ON EUROPEAN UNION ART 29

EUROPEAN ARREST WARRANT ACT 2003 S18(1)

EUROPEAN ARREST WARRANT ACT 2003 S18(2)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 23(4)

Mr Justice John Edwards

1 The respondent is the subject of a European Arrest Warrant issued by the Czech Republic on the 9^th of March, 2010. The warrant was endorsed for execution by the High Court in this jurisdiction on the 19^th of May 2010 and it was duly executed on the 20^th of July 2010. The respondent did not consent to his surrender to the Czech Republic and the Court was requested by the applicant to make an Order pursuant to s. 16 of the European Arrest Warrant Act, 2003 as amended (hereinafter referred to as "the 2003 Act") directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The principle ground upon which the respondent opposed his surrender was his contention that, having regard to alleged unreasonable prosecutorial delay in this case, it would violate the his rights under Article 47 of the Charter of Fundamental Rights and/or under Article 6 of the European Convention on Human Rights and Fundamental Freedoms to return him to the issuing state. This Court has not been disposed to uphold the respondent's objection and indicated its reasons for not doing so in a reserved judgment delivered on the 3^rd of March 2011. Further, on the same day the Court made an order pursuant to s. 16 of the 2003 Act directing that the respondent be should be surrendered and remanded the respondent on continuing bail pending his surrender.

2 S. 16(3) of the 2003 Act provides that"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 or such earlier date as the High Court, upon the request of the person to whom the order applies, directs." In this case the respondent has not waived the 15 day period, nor has he requested that he be surrendered earlier than is provided for by the statute.

3 On the contrary, the respondent has requested the Court to exercise in his favour the discretion that the Court has under s. 18(3) of the 2003 Act and to make an order directing that his surrender should be postponed until proceedings currently in being against him for an offence committed in the State until the date of the final determination of those proceedings in the event that he is not required to serve a term of imprisonment; alternatively if he is required to serve a term of imprisonment the date on which he is no longer required to serve any part of that term of imprisonment.

4 The Court has been informed that the proceedings in question are before Tralee District Court, the charge concerns the theft of a laptop computer, the respondent has pleaded guilty to the charge and the proceedings presently stand adjourned by District Judge James O'Connor to the 15^th of September 2011 to facilitate the respondent making a contribution to the court "poor box".

5 As this is, the Court understands, the first case to come before the High Court involving a request for a postponement of surrender to enable a respondent to avail of an opportunity afforded to him, or perhaps to comply with a requirement, to make a contribution to a court "poor box" in proceedings against him for an offence committed in the State, and as important issues arise, the Court has decided that it should give a further reserved judgment in this case.

6 The "poor box" system is a non-statutory procedure adopted by the courts over many years, particularly by the District Court, in which the court affords an opportunity to, and sometimes requires, a defendant to make a payment to charity as an indication of remorse and an earnest of intention not to offend again, most frequently on the basis that if the payment is made no conviction will be recorded against that defendant, and less frequently on the basis that although a conviction will recorded against the defendant he or she may be dealt with more leniently than might otherwise be the case, particularly if the payment can be made to achieve a measure of restorative justice. This précis or summary statement requires to be elaborated upon to some extent in the circumstances of this case.

7 It is fair to say that the poor box system is controversial and it has both its proponents and its critics. It was closely examined by the Law Reform Commission ("the LRC") some years ago, and in March 2004 the LRC published its Consultation Paper on the Court Poor Box (LRC CP 31 - 2004).

8 Among the issues examined by the LRC were the circumstances in which the court poor box is applied. It looked first of all at how the possibility of making a contribution arises in a particular case and stated that the most frequent way in which a contribution to the court poor box arises is as a result of a request by or more usually on behalf of an offender. The possibility of making a contribution also frequently arises at the instance of the court and, in particular, as a result of:

9 (a) a suggestion by the court that a contribution would be appropriate;

10 (b) a request by the court that the offender should make a contribution;

11 (c) a direction by the court that the offender should or must make a contribution;

12 (d) an indication by the court of a willingness "to deal with the case in a particular way" or "to adopt a certain course"; or

13 (e) an indication by the court that it would dismiss a charge on condition that the offender pay a particular sum to the court poor box.

14 The LRC noted that it is only on very rare occasions and only in certain courts that the possibility of making a contribution arises as a result of a request made by the prosecution.

15 The LRC then examined the type of offences in respect of which the option of making a contribution to the court poor box arises and stated that, in general, the court poor box is applied in respect of minor offences which do not merit a custodial sentence although, on occasion, it has been applied in relation to more culpable offences which might seem to merit a significant fine or custodial sentence.

16 It also examined the reasons why the option of making a contribution to the court poor box arises, and noted that a variety of factors are taken into account by the courts when determining whether to apply the court poor box in a particular case. It addressed the most significant of these factors under the following subheadings, and stated:

"(a)The first occasion on which the offender had committed the offence in question (or any offence)

17 The most significant factor which underlies a decision to apply the court poor box is that the offender was never previously charged with the offence in question or was never previously charged with any other offence. Many judges will only consider applying the court poor box in relation to persons who satisfy this condition and, in this sense, the absence of a prior criminal record constitutes a "prerequisite" to the application of this method of dealing with an offender. Other judges do not apply this rule rigidly and may, for example, consider the court poor box in respect of a person who had not offended for a very long time.

(b)A plea of guilty by the offender

18 2 1.23 Another factor which weighs very heavily in the decision making process is a plea of guilty by the offender. Indeed, many judges also consider such a plea to be a "prerequisite" to the application of the court poor box.

(c)A concern to avoid a conviction

19 2 1.24 A concern on the part of the court to avoid a conviction is also a very significant factor. For reasons which overlap with the other factors outlined in this section, a court may consider that it would be inappropriate to impose a conviction on an offender in a particular case. This frequently occurs where a conviction would adversely affect employment prospects or prevent an offender from securing the necessary visa to work or travel abroad. The permanency of a conviction once recorded is another factor in this regard.

(d)The minor or trivial nature of the offence

20 2 1.25 The minor or trivial nature of the offence with which an offender is charged is another factor which frequently underlies a court's decision to apply the court poor box.

(e) A lack of proportionality between any outcome other than a contribution to the court poor box and the offence in question

21 2 1.26 A lack of proportionality between any outcome other than the court poor box and the offence in question is also a significant factor.

(f)The family circumstances of the offender

22 2 1.27 The courts frequently have regard to the family circumstances of the offender when considering whether to apply the court poor box. Where an outcome other than the court poor box would, in effect, also punish the members of the family who depend for particular help and needs on the offender, the courts are likely to take this into account as a factor which favours application of the court poor box.

(g)A concern to avoid an injustice

23 2...