Min for Justice v Murtagh

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 26 February 2010
• Neutral Citation: [2010] IEHC 205
• Court: High Court
• Date: 26 February 2010

[2010] IEHC 205

THE HIGH COURT

Record Number: No. 57 Ext./2009

Min for Justice v Murtagh

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Patrick Murtagh

Respondent

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

MIN FOR JUSTICE v HALL UNREP SUPREME 7.5.2009 2009/39/9728 2009 IESC 40

EXTRADITION

European arrest warrant

Prejudice - Witness deceased - Husband of complainant to whom complaints told deceased - Whether alleged prejudice amounting to real risk of unfair trial on surrender - Evidential value of complaint - Non attendance at trial - Lawyers discharged before trial - Case listed for mention - Whether entitled believe attendance at court not required - Whether responsible for delay - Whether delay relevant objection to extradition given lack of prejudice - Minister for Justice, Equality and Law Reform v Hall [2009] IESC 40 (Unrep, Supreme Court, 07/05/2009) - Surrender ordered (2009/57Ext - Peart J - 26/02/2010) [2010] IEHC 205

Minister for Justice, Equality and Law Reform v Murtagh

Facts the surrender of the respondent was sought by a judicial authority on foot of a European arrest warrant which issued in February, 2009 in respect of an alleged rape in 1979. He contended that his surrender should not be ordered as the delay in the proceedings meant that his defence would be prejudiced by the death of the complainant's husband in 2004 and to whom she is alleged to have made the first complaint in 2002. His trial had originally been scheduled for 2005.

Held by Mr Justice Peart in ordering the surrender of the respondent that the capacity to argue delay in an exceptional case required that some prejudice amounting to a real risk of an unfair trial had to be firmly established by clear, cogent and compelling evidence. In the present case, the alleged prejudice was not in that category as it did not amount to a real risk that, if surrendered, the respondent would not receive a fair trial.

Reporter: P.C.

1 Mr Justice Michael Peart delivered on the 26th day of February 2010:

2 The surrender of the respondent is sought by a judicial authority in Northern Ireland on foot of the European arrest warrant which issued the on the 10 ^th February 2009. That warrant was endorsed here for execution by on 4 ^th March 2009, and the respondent was duly arrested on foot of same on 13 October 2009 and brought before the High Court on the 14 ^th October 2009, from where he has been remanded from time to time pending the hearing of the present application for his surrender.

3 There is no issue raised as to the identity of the respondent, but I am satisfied in any event from the affidavit evidence of the arresting Garda Officer, Sgt. James Kirwan that the person who he arrested on the 13 ^th October 2009 on foot of this warrant, is the person in respect of the same has been issued.

4 The surrender of the respondent is sought so that he can be prosecuted in Northern Ireland in respect of two offences of rape which are alleged to have occurred in 1979.

5 The complainant in relation to each of those offences first made her statement to the police in 2002 and the respondent was interviewed in 2003. He was later arraigned and sent forward for trial. But in due course on 19 ^th September 2005, as he had not appeared before the Crown Court for his trial, a warrant was issued for his arrest. In due course, I will come back to the issue of delay which is raised as a ground of objection to the present application.

6 The two offences of rape referred to in this warrant have been marked as being offences within the categories of offence listed in Article 2.2 of the Framework Decision, and, as such, are offences in respect of which double criminality or correspondence is not required to be verified. Each offence satisfies the minimum gravity requirement.

7 I am satisfied that there is no reason to refuse to order his surrender pursuant to the provisions of sections 21A, 22, 23 or 24 of the Act, and I am further satisfied, subject to reaching a conclusion in relation to the issue of delay, that his surrender is not prohibited by any provision of Part III of the Act or the Framework Decision.

Delay:

8 As I have already stated, the respondent refers to the fact that these offences are alleged to have been committed in 1979, at which stage the complainant was aged 15 years. The affidavit filed by the respondent has referred to the fact that the complainant first made a statement on 12 ^th September 2002, and this fact is referred to also in the warrant itself. The respondent states that in March 2003 he was interviewed by the police and that on 3 ^rd November 2004, he appeared at a magistrates' court and was committed to the Crown Court for trial on the two counts of rape. He goes on to say that on 14 ^th December 2004 he was arraigned at Craigavon Crown Court, and then he states as follows:

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