Min for Justice v Orlowski

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 07 October 2011
• Neutral Citation: [2011] IEHC 374
• Docket Number: Record No.: 32 EXT/2011
• Court: High Court
• Date: 07 October 2011

[2011] IEHC 374

THE HIGH COURT

Record No.: 32 EXT/2011

Min For Justice v Orlowski

APPROVED

Mr. Justice Edwards

JUDGMENT

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

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

-AND-

ROBERT ORLOWSKI

RESPONDENT

Abstract:

Criminal law - Extradition law - European arrest warrant - Correspondence - Breach of the peace - European Arrest Warrant Act, 2003 - Whether the offence as set out in the warrant corresponded with an offence under Irish Law.

Facts The applicant sought to have the respondent surrendered to Poland on foot of a European Arrest Warrant for the purposes of having him serve out the balance of six months remaining to be served of a composite sentence of three years imprisonment imposed upon him on 5 November 2001 in respect of four offences as more particularly set out in part E of the warrant. The respondent contended in his Points of Objection that correspondence could not be demonstrated with the second of the four offences particularised in part E of the warrant. The particulars set out in relation to that offence in the warrant and in additional information supplied by the issuing judicial authority in Poland demonstrated that the respondent was charged with verbally abusing police officers and more particularly when he was under arrest and was being led out of his flat he 'insulted all of the police officers with abusive words. He insulted the police officers not only in the flat, but after being led out of the flat and on the way to the police car'. Counsel for the applicant invited the court to find correspondence with the offence of using or engaging in, in a public place, threatening and abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned contrary to section 6 of the Criminal Justice (Public Order) Act, 1994. Counsel on behalf of the respondent submitted that the facts as disclosed in the warrant and in the additional information did not establish that the incident occurred in a public place. Furthermore, it was submitted on behalf of the respondent that the facts as disclosed did not indicate that what was done by the respondent was done with intent to provoke a breach of the peace, or being reckless as to whether a breach of the peace might be occasioned. It was submitted in this regard, that as the police were at the scene to keep the peace they were not realistically going to be provoked by insults and the facts as disclosed did not establish that there was anyone else present who might have been provoked into breaching the peace. It was submitted that it was not sufficient that the abusive words and insults were themselves a breach of the peace. In support of those arguments, counsel for the respondent referred the court to two cases, namely, Marsh v Arscott [1982] Crim L.R. 211 and Thorpe v The Director of Public Prosecutions [2007] 1 I.R. 502. Counsel on behalf of the applicant submitted that the facts as disclosed provided a sufficient basis for the drawing of the inferences that firstly, at least part of the incident occurred in a public place and secondly, that the respondent intended to provoke a breach of the peace or was reckless as to whether a breach of the peace was occasioned.

Held by Edwards J. in refusing to surrender the respondent: That there was an insufficient basis for the drawing of the second inference as contended for by the applicant in circumstances where there was simply no evidence that anybody was there, apart from the police, to witness the respondent's abusive and insulting words and behaviour. There was, accordingly, no basis for believing that there was an intention to cause alarm and apprehension to a member of the public or to believe that the respondent acted recklessly in that regard. Consequently, the court was not satisfied that the offence described in the warrant, and in the additional information, corresponded with the offence in Irish law created by section 6 of the Criminal Justice (Public Order) Act, 1994. As a composite sentence had been imposed in respect of the four offences covered in the warrant severance was not possible and accordingly the court had no option but to refuse to surrender the respondent herein.

Reporter: L.O'S.

Mr. Justice Edwards

1 The respondent in this case is the subject of a European arrest warrant dated the 14^th of January 2009 on foot of which the state of Poland has sought his rendition for the purpose of having him serve out the balance of six months remaining to be served of a composite sentence of three years imprisonment imposed upon him by the District Court in Kutno on the 5^th of November 2001 in respect of four offences as more particularly set out in part E of the warrant.

2 The said European arrest warrant was indorsed by the High Court for execution in this jurisdiction on the 26^th of January 2011, and it was duly executed when the respondent was arrested by Garda John Butler at Newbridge, Co Kildare on the 17^th of April 2011, following which he was brought before the High Court in the normal way in compliance with s.13 of the European Arrest Warrant Act 2003 (hereinafter the Act of 2003) and an initial notional date was duly fixed for the purposes of a s. 16 surrender hearing. The matter was then adjourned from time to time until Points of Objection were filed and it was ready to receive an actual hearing date. The Court duly fixed the 6^th of October 2011 as the actual hearing date and on that date (i.e. yesterday's...