Min for Justice v O Falluin Orse Fallon

• Jurisdiction: Ireland
• Judge: Murray C.J.,Mr Justice Finnegan
• Judgment Date: 19 May 2010
• Neutral Citation: [2010] IESC 37
• Court: Supreme Court
• Date: 19 May 2010

[2010] IESC 37

THE SUPREME COURT

Murray C.J.

Fennelly J.

Finnegan J.

344/08

Min for Justice v O Falluin Orse Fallon

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

BETWEEN

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT/RESPONDENT

AND

MICHÉAL Ó FALL ÚIN OTHERWISE MICHAEL FALLON

RESPONDENT/APPELLANT

EUROPEAN ARREST WARRANT ACT 2003 S10

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S71

EUROPEAN ARREST WARRANT ACT 2003 S16

EXTRADITION ACT 1965 PART III

O'ROURKE v GOVERNOR OF CLOVERHILL PRISON & AG 2004 2 IR 456 2004/40/9259 2004 IESC 29

EUROPEAN ARREST WARRANT ACT 2003 S16(3)

EUROPEAN ARREST WARRANT ACT 2003 S16(5)

CONSTITUTION ART 40.4.2

EUROPEAN ARREST WARRANT ACT 2003 S16(7)

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

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4(7)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 6

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 10

S (D) v JUDGES OF THE CORK CIRCUIT COURT & DPP 2008 4 IR 379 2009 1 ILRM 16 2008/57/11808 2008 IESC 37

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148 2006/39/8296 2006 IESC 23

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

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

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4(7)(A)

EUROPEAN ARREST WARRANT ACT 2003 S42

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S83

EXTRADITION

European arrest warrant

Estoppel - Res Judicata - Time limits - Delay - Surrender - Second European arrest warrant - Discretion to refuse surrender - Mutual recognition of judicial decisions - Abuse of process - Repeated attempts to secure conviction - Whether European arrest warrant duly issued - Whether bringing second European arrest warrant in breach of respondent's rights - Whether DPP considering bringing proceedings - Whether breach of principle of mutual recognition - Whether discretionary power to refuse to surrender - Whether underlying domestic warrant executed or spent - Whether necessary to go behind warrant to examine evidence of domestic law and related issue - Minister for Justice, Equality and Law Reform v Altravicious [2006] 3 IR 148 followed - O'Rourke v Governor of Clover Hill Prison [2004] 2 IR 456 and S(E) v Judges of the Circuit Court [2008] IESC 37 considered - European Arrest Warrant Act 2003 (No 45), ss 10, 16, 37(1) and 42 - Extradition Act 1965 (No 17) - Criminal Justice (Terrorist Offences) Act 2005, ss 71 and 82 - Constitution of Ireland 1937, article 40.4.2 - Council Framework Decision (2002/584/JHA), arts 4.7 and 23 - Appeal dismissed (344/2008 - Murray CJ & Finnegan J - 19/5/2010) [2010] IESC 37

Minister for Justice, Equality and Law Reform v Ó Fallúin

Facts section 45 of the European Arrest Warrant Act 2003 provides, inter alia, that "a person shall not be surrendered under this Act if hewas not present when he was tried for and". The High Court made an Order pursuant to section 16 of the Act of 2003 for the surrender of the respondent to the United Kingdom to answer a charge of making a fraudulent passport application. The respondent appealed that decision to the Supreme Court, submitting that the expiration of the time limits provided for in Article 23 of the Framework Directive and section 16 of the Act of 2003 precluded his surrender and that his surrender would amount to an abuse of process given that he had successfully challenged a prior European arrest warrant based on the same underlying domestic warrant issued in the United Kingdom and that this second attempt to procure his surrender could be compared by analogy to repeated attempts to procure a conviction and that the issue was res judicata. He also submitted that the underlying warrant issued in the United Kingdom was spent.

Held by the Supreme Court in dismissing the appeal that proceedings under the Act of 2003 were not criminal proceedings and the same principles did not apply. There had been no decision on the prior application for his surrender which created an estoppel or gave rise to res judicata. There was no reason why he should not be surrendered simply because the European arrest warrant had been the second issued in respect of the same domestic warrant. In bringing a second European arrest warrant, the requesting state was not acting in breach of the Constitution or the European Convention on Human Rights.

That the principle of comity of courts and the purpose of the Directive required that if the European arrest warrant was in the prescribed form and contained the prescribed information it would, save in exceptional circumstances, be sufficient for an order of surrender. There had been sufficient evidence before the High Court to conclude that the underlying domestic warrant was not spent.

Reporter: P.C.

1 JUDGMENT of Murray C.J. delivered on the 19th day of May 2010

2 Judgments delivered by Murray & Finnegan Murray & Fennelly agreed with Finnegan Fennelly agreed with Murray.

3 I have read the judgment of Mr. Justice Finnegan. I agree with that judgment and the order he proposes, except that I wish to make some additional observations concerning s. 10 of the Act of 2003, as amended by s. 71 of the Criminal Justice (Terrorist Offences) Act 2005, and its reference to the circumstance where a judicial authority in an issuing state "duly issues a European Arrest Warrant".

4 Where it is established that a judicial authority within the meaning of the Act of 2003 has in fact issued the European Arrest Warrant in question it seems to me that it should be considered to have been "duly issued" within the meaning of that section. Neither the Act nor the Framework Decision in my view can be interpreted as permitting, let alone requiring, the courts of the executing state to embark on what would be in effect a judicial review of the validity of an order of the court or judicial authority of the requesting state according to the law of that State. I do not consider that there is anything within the Framework Decision and in particular the Act of 2003 which envisages that our courts would conduct a judicial inquiry in order to determine whether as a matter of German law, French law, United Kingdom law, Latvian law, or as the case may be, a European arrest warrant produced and authenticated as having been issued by the relevant judicial authority is valid. Issues concerning the validity of an order of a court within the meaning of its own national law invariably fall to be tried and determined by the courts of that country. It would be invidious, to say the least, if the court of one country were to pass judgment on the validity of an order or act of a court in another country under the latter's national law and set it aside as not having the effect which it purports to have on its face. Accordingly I do not consider that the use of the word "duly" in the Act of 2003 (though now removed by an amendment in the Criminal Justice (Miscellaneous Provisions) Act 2009) was ever intended to have such a meaning or effect which would require our courts, in the field of public law to exercise an unprecedented form of jurisdiction.

5 Of course a state may wish to provide certain safeguards so that the order of a foreign court made in respect of any individual is not automatically enforceable in every respect in its own country. Where this is done it is achieved, as is generally the case with regard to the enforcement in this State of judgments or orders of foreign courts, including the European Arrest Warrant itself, by stipulating in legislation that there are conditions or pre-conditions which must be met before an order or judgment becomes enforceable under our national law. Compliance with such conditions or pre-conditions give rise to issues separate and wholly distinct from any issue as to whether the foreign court making the order or issuing the warrant had jurisdiction to make the order or had validly done so under its own law.

6 It is not necessary in the present context to examine whether, in enforcing the European Arrest Warrant system, there might be some exception to this rule in egregious circumstances such as where there was some element of fraud involved in seeking the issuing of a warrant but even then that would also seem to be an issue to be addressed by the Court of the State concerned.

7 On the facts of this case, given that the learned High Court judge had before him a European Arrest Warrant which on its face contained the information and was in the form required by the Act of 2003 and the Framework Decision, and there being no dispute that the warrant had actually been issued by an English Court, I do not consider that it was necessary for him to go behind the warrant so as to examine the evidence of English law and the related issue. In so far as he did do so I agree with Finnegan J., that he was entitled to come to the conclusion which he did regarding the meaning and effect of English law and the validity of the warrant issued by the English Court.

8 Judgment of Mr Justice Finnegan delivered on the 19th day of May 2010

9 The appellant appeals against an order of the High Court (Peart J.) of the 8 ^th October 2008 whereby it was ordered pursuant to section 16 of the European Arrest Warrant Act 2003 that the appellant be surrendered to the United Kingdom. The order was made on foot of a European arrest warrant issued on the 17 ^th April 2007. The underlying arrest warrant issued on the 16 ^th December 2003 and relates to a single offence described in the warrant as follows:-

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