Min for Justice v McArdle

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 21 February 2014
• Neutral Citation: [2014] IEHC 132
• Court: High Court
• Date: 21 February 2014

Min for Justice v McArdle

No Redaction Needed

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-

BARRY MCARDLE

Respondent

[2014] IEHC 132

Record No. 267 EXT/2011

THE HIGH COURT

Extradition - European Arrest Warrant – Refusal to Surrender – homicide contrary to s.287 or 289 of the Dutch Penal Code- previous surrender to Ireland from the United Kingdom - request for onward rendition following an inward rendition- s.21A European Arrest Warrant Act 2003 - summons issued to appear in District Court of Amsterdam- whether respondent wanted for questioning or prosecution – onus rests on the respondent to satisfy the Court – Alleged abuse of process

Facts: The respondent, an Irish national was the subject of a European Arrest Warrant. The Netherlands sought the rendition of the respondent on foot of this warrant for the purposes of prosecuting him for the offence of homicide. The warrant was endorsed by the High Court and subsequently executed. As the respondent, was already serving a sentence for a domestic offence, he was remanded in custody until his surrender hearing, at which he contested his surrender to the Netherlands. Thus, the court was asked by the applicant to make an order pursuant to s.16 of the European Arrest Warrant Act 2003 directing that the respondent be surrendered accordingly. Consequently, the court had to consider whether the requirements of s.16, both controversial and uncontroversial, had been satisfied and that the court”s jurisdiction to make an order directing that the respondent be surrendered was dependent upon a judicial finding had also been satisfied.

Held by Mr Justice Edwards, that the application for a dismissal was refused because the respondent was unable to point to any statutory provision, any provision of an international treaty or instrument, any common law or constitutional rule, or any case law or any authority, to support his suggestion that a person in the position of the respondent cannot be validly arrested on foot of a European arrest warrant seeking his onward rendition unless consent to onward rendition is in place at that point in time. Such, consent, it was decided could be sough at any stage in the proceedings up until the making of an order under s.16 of the 2003 Act. Secondly, in relation to the point of objection that the warrant did not apply on the grounds that the warrant had not been issued by a judicial authority and that the respondents surrender would be in contravention of s.20 of the 2003 as no decision had been made by the Netherlands to charge him with and try him for the offence alleged, the court held that in light of jurisdictional differences, a recognised judicial authority had issued the warrant, and that whilst at the time at which the warrant was issued a decision had not been made to charge the respondent with, and try him in the issuing state for, the offence to which the warrant related, the court was not obliged by the terms of s. 21A to refuse to surrender the respondent. Thus, Mr Justice Edwards affirmed that no abuse of process had occurred as alleged.

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(2)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO.4) SI 400/2004

EXTRADITION ACT 2003 (UK) S56

EXTRADITION ACT 2003 (UK) S57

EUROPEAN ARREST WARRANT ACT 2003 S10

EXTRADITION (AMDT) ACT 2012

EXTRADITION (AMDT) ACT 2012 S5

MIN FOR JUSTICE v BAILEY UNREP 1.3.2012 2012/25/7268 2012 IESC 16

MIN FOR JUSTICE v TOBIN (NO.2) UNREP SUPREME 19.6.2012 2012/28/8166 2012 IESC 37

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 27

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 28

EUROPEAN ARREST WARRANT ACT 2003 S18

EUROPEAN ARREST WARRANT ACT 2003 S19

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S11(F)

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

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

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S44

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(E)

EUROPEAN ARREST WARRANT ACT 2003 S11(3)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S72(C)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79

MIN FOR JUSTICE v OLSSON 2011 1 IR 384

MIN FOR JUSTICE v CONNOLLY UNREP EDWARDS 6.12.2012 2012 IEHC 575 [TRANSCRIPT NOT AVAILABLE]

MIN FOR JUSTICE v HOLDEN UNREP EDWARDS 11.2.2013 2013 IEHC 62

MIN FOR JUSTICE v JOCIENE UNREP EDWARDS 31.5.2013 2013 IEHC 290

MIN FOR JUSTICE v E (T) UNREP EDWARDS 19.6.2013 2013 IEHC 323

MIN FOR JUSTICE v QUILLIGAN UNREP EDWARDS 26.7.2013 2013 IEHC 452

EUROPEAN ARREST WARRANT ACT 2003 S21(A)(2)

LAVROV v MIN OF JUSTICE OF ESTONIA 2013 3 WLR 1485

STATE (TRIMBOLE) v GOVERNOR OF MOUNTJOY PRISON 1985 IR 550

STATE (QUINN) v RYAN 1965 IR 70

MIN FOR JUSTICE v ALTARAVICIUS (NO.1) 2006 3 IR 148

SHANNON v IRELAND 1984 IR 548

MIN FOR JUSTICE v MCARDLE 2005 4 IR 260

MIN FOR JUSTICE v BRENNAN 2007 3 IR 732

ASSANGE v SWEDISH PROSECUTION AUTHORITY 2012 2 AC 471

EXTRADITION ACT 2003 (UK) S2(2)

DAMACHE v DPP 2012 2 ILRM 153

OFFENCES AGAINST THE STATE ACT 1939 S29

CRIMINAL PROCEEDINGS AGAINST PUPINO 2005 ECR I-5285 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142

EUROPEAN ARREST WARRANT ACT 2003 S2(1)

EUROPEAN ARREST WARRANT ACT 2003 S33(1)

MIN FOR JUSTICE v ALTARAVICIUS (NO.2) 2007 2 IR 265

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 12(2)

EUROPEAN CONVENTION ON EXTRADITION ORDER SI 2001/962 (UK) ART 3

CONSTITUTION ART 40.4.2

EUROPEAN ARREST WARRANT ACT 2003 S4(A)

EUROPEAN ARREST WARRANT ACT 2003 S2(1)

MIN FOR JUSTICE v FERENCA UNREP PEART 24.5.2007 2007/40/8325 2007 IEHC 199

1 JUDGMENT of Mr Justice Edwards delivered on the 21st day of February, 2014.

Introduction:

2 The respondent is the subject of a European arrest warrant issued by Mr. M.E. Woudman, Public Prosecutor (Officier van Justitie) at the Public Prosecutor's Office in Amsterdam (Openbaar Ministerie Amsterdam), Netherlands on the 6 ^th July, 2011. The Kingdom of the Netherlands (hereinafter "the Netherlands") seeks the rendition of the respondent on foot of this warrant for the purposes of prosecuting him for a single offence as particularised therein. The warrant was endorsed by the High Court for execution in this jurisdiction on the 27 ^th July, 2011, and it was duly executed on the same day. The respondent was arrested by Sergeant Sean Fallon on that date, following which he was immediately brought before the High Court pursuant to s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003. As the respondent was already serving a sentence in respect of a domestic conviction, and did not seek bail, he was remanded in custody to the date fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.

3 The respondent does not consent to his surrender to the Netherlands. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependent upon a judicial finding that they have been so satisfied.

Uncontroversial s. 16 issues

4 The Court has received and has scrutinised a true copy of the European arrest warrant in this case.

5 The Court has also received an affidavit of Sergeant Sean Fallon sworn on the 19 ^th November, 2012, testifying as to his arrest of the respondent and as to the questions he asked of the respondent to establish the respondent's identity, and the answers he received, which the Court notes correspond with information contained in Part A of the European arrest warrant. In addition, counsel for the respondent has confirmed that no issue arises as to either the arrest or identity.

6 Further, the Court has taken the opportunity to inspect the original European arrest warrant which is on the Court's file and which bears this Court's endorsement.

7 I am satisfied following my consideration of these matters that:

8 (a) The European arrest warrant was endorsed for execution in this state in accordance with s. 13 of the Act of 2003;

9 (b) The warrant was duly executed;

10 (c) The person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

11 (d) The warrant is in the correct form;

12 (e) The warrant purports to be a prosecution type...