Min for Justice v Lanigan

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 02 September 2015
• Neutral Citation: [2015] IEHC 677
• Judgment citation (vLex): [2015] 9 JIC 0201
• Court: High Court
• Date: 02 September 2015

[2015] IEHC 677

THE HIGH COURT

[No. 1 EXT/2013]

Min for Justice v Lanigan

Approved Judgment

No Redaction Needed

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 (AS AMENDED)

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

FRANCIS LANIGAN

RESPONDENT

Extradition – The European Arrest Warrant Act 2003 – The European Convention on Human Rights – Art. 17 of Council Framework Decision 2002/584/JHA – Right to life – Jurisdiction to seek additional information – Art. 267 of the Treaty on the Functioning of the European Union – Art. 20 of Charter of Fundamental Rights of the European Union

Facts: Following the decision of the Court of Justice of the European Union that the obligation to execute the European Arrest Warrant (EAW) subsisted even after the expiry of the time limits provided under art. 17 of the Council Framework Decision 2002/584/JHA on referral by the Court, the applicant now sought an order for the surrender of the respondent to the jurisdiction of Northern Ireland pursuant to the execution of the European Arrest Warrant Act 2003 in relation to the offences of murder and possession of firearm. The respondent objected to his arrest on the ground that it posed a threat to his life as the paramilitary organisations in Northern Ireland might be able to commit murder in prisons. The respondent contended that additional information as sought by the Court from Northern Ireland was not admissible as unsworn documentation could not be tested in cross-examination and thus, it was in contravention of art. 20 of the Charter of Fundamental Rights of the European Union.

Ms. Justice Murphy granted an order for the surrender of the respondent. The Court held that the executing authority was entitled to have full regard to the information supplied by the requesting state and art. 20 of the said Charter on Fundamental Rights had to be interpreted in consonance with the objectives of the Council Framework Decision 2002/584/JHA. The Court after applying the test laid down in MJELR v. Rettinger [2010] IEHC 206 held that it was satisfied that proper measures were put in place to protect the respondent's right to life. The Court opined that the surrender process was neither akin to trial nor an adversarial process and the purpose of the surrender was not to indulge in any fact finding. The Court held that the Court was not an arbiter between the conflicting parties and its function was to ascertain whether the conditions set out under s. 16 of the European Arrest Warrant Act 2003 had been met and then the Court was not required to refuse surrender under ss. 21A, 22 and 23 of the said Act of 2003.

1 JUDGMENT of Ms. Justice Murphy delivered on the 2nd day of September, 2015.

2 1. The following judgement should be read in conjunction with the preliminary ruling in this matter, delivered by this Court, on the 17 ^th November, 2014 in which the background to this application is outlined as well as the Court's decision on various procedural and evidential issues which arose in the course of the section 16 hearing. The primary ground of objection to surrender is and remains that the respondent's life would be under threat if surrendered. The main findings of the Court following three days of hearing in July 2014 were as follows:

3 a) The process on which the Court is engaged is not a trial nor an adversarial process in which the normal rights attendant on such a process would be engaged;

4 b) The process is a surrender process mandated by the Council Framework decision of 13 ^th June 2002 and effected in this jurisdiction by the EAW Act 2003 as amended;

5 c) In giving effect to the surrender process, the Court is not an arbiter between conflicting parties. The Court's function is to ascertain whether the conditions set out in s. 16 of the European Arrest Warrant Act 2003 have been met and if so, that the Court is not required to refuse surrender under s. 21A, 22, 23 or 24 of the Act and/or that the surrender is not prohibited by Part 3 of the Act. The Court must be satisfied regardless of the urgings of the parties before making a decision to surrender;

6 d) In conducting that assessment the Court is not limited to the material placed before it by the parties as the Court might be in an adversarial hearing. The Court is specifically entitled by s. 20 of the Act to seek additional information or documentation from either the issuing judicial authority or the issuing state to allow it to perform its function;

7 e) The Court is entitled to seek, receive and act upon information from the issuing judicial authority and/or the issuing state;

8 f) That while a practice had developed of putting information from a judicial or state authority before the Court by exhibiting it on affidavit, such was not essential. What is essential is that the Court be satisfied as to the provenance and authenticity of the information and that it relates to the particular application upon which the Court is engaged;

9 g) That in the instant case, applying the test set out in MJELR v. Rettinger [2010] IEHC 206, there was evidence before the Court in the form of affidavits from the respondent and his solicitor of credible threats to his life such as to put the Court on inquiry both as to the nature of any threats and the capacity of the Northern Ireland authorities to protect his right to life;

10 h) The Court of its own motion sought information from the issuing state addressing concerns as to any potential threat to the respondent's life should he be surrendered to the issuing state.

11 2. Pursuant to that direction the Central Authority, by letter dated 27 ^th November, 2014 wrote to the Central Authority in the UK seeking information addressing the specific concerns expressed by the respondent on affidavit regarding his perceived threat to his life. In particular the Central Authority was asked to advise "whether it is accepted that there would be a real and immediate threat to the life of the respondent if he were surrendered", and, having regard to the specific concerns expressed by the respondent on affidavit concerning the risk that paramilitary organisations may be able to commit murder in prisons in Northern Ireland, to "advise as to whether the Northern Irish Prison Service would be in a position to provide the respondent with the effective protection against such a threat, should it exist, and by what means".

12 3. In response to this request information was provided by Will Kerr, Assistant Chief Constable, Crime Operations of the PSNI, relating to the respondent's concern as to a threat to his life and from Brian Neil Donaldson of the Northern Ireland Prison Service relating to the capacity of the Northern Ireland Prison Service to protect those who may be under threat from other prisoners. This information was supplied to the Court on 8 December, 2014. The Court is satisfied as to the provenance and authenticity of the information provided and that the information relates to the specific circumstances of this case. The Court is so satisfied based on the correspondence between the Central Authority in this state and the UK Central Authority and the correspondence between the UK Central Authority and its state agencies.

13 4. Having been provided with the additional information sought by the Court, counsel for the respondent did not challenge the content of the information supplied but rather sought to challenge once again, its admissibility. By notice of motion dated 8 ^th December, 2014, counsel for the respondent also sought orders for discovery relating to communications between the applicant Minister, her servants, her agents and any official agency or official in the United Kingdom "concerning possible answers to the applicant's contention that his surrender under European Arrest Warrant would pose a significant threat to his life". The respondent also sought a referral to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union of questions touching on whether or not Ireland, in giving effect to the Framework Decision, was obliged to depart from national rules of practice, procedure, evidence and the conduct of trials having regard to Article 12 of the Framework Decision. Counsel for the respondent also sought a reference in respect of the proper interpretation of Article 17 of the Framework Decision setting out time limits in respect of the process of surrender. Additionally the notice of motion sought to renew the respondent's application for bail.

14 5. The applicant was not on notice of the respondent's applications and the Court adjourned the matter to 15 ^th December, 2014 for argument. By that date the respondent's application had morphed into an application to dismiss the application for surrender or in the alternative an application for a reference to the European Court of Justice of questions touching on the procedure adopted by Ireland in giving effect to the Framework Decision and the fact of non compliance with the time limits set out in Article 17 of the Framework decision. On the same date, the Court heard the respondent's renewed application for bail and the court granted him bail on stringent terms which included terms that he reside at a specific address and sign on daily at an adjacent Garda Station. Following a successful appeal on the amount of the independent surety set by this court the applicant was admitted to bail in July 2015.

15 6. As for the remainder of the application, notwithstanding the Court's specific ruling that the process upon which it was engaged was neither a trial nor an adversarial process, counsel for the respondent persisted in arguing that the information sought by the Court pursuant to s. 20 was inadmissible and that the respondent was being denied his rights, under...