Min for Justice v McGuinness

JurisdictionIreland
JudgeMr Justice Edwards
Judgment Date15 July 2011
Neutral Citation[2011] IEHC 289
CourtHigh Court
Date15 July 2011

[2011] IEHC 289

THE HIGH COURT

Record No No 434 EXT/2010
Min for Justice v McGuinness
APPROVED
Mr. Justice Edwards
JUDGMENT
BETWEEN/
THE MINISTER FOR JUSTICE AND LAW REFORM
Applicant

- AND -

CYRIL MC GUINNESS
Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

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

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 11.2

CHARTER OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 47

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S81

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S82

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) PART 3

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004 ART 2

CONSTITUTION ART 15.2.1

EUROPEAN ARREST WARRANT ACT 2003 S13(4)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

CHARTER OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 48

TREATY OF EUROPEAN UNION ART 6

EXPLANATIONS RELATING TO CHARTER OF FUNDAMENTAL RIGHTS OJ 14.12.2007- 2007/C303/02 EN C303/171

TREATY OF EUROPEAN UNION ART 47 PAR 2

TREATY OF EUROPEAN UNION ART 47 PAR 3

TREATY OF EUROPEAN UNION ART 48

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 47

CONSTITUTION ART 15.2.1

O (M) NIGERIA v SECRETARY OF STATE 2009 1 WLR 1230

A (F) IRAQ v SECRETARY OF STATE 2010 1 WLR 2545

PANKINA v SECRETARY OF STATE 2010 3 WLR 1526

OLSSON v MIN FOR JUSTICE 2011 2 ILRM 395 2011 IESC 1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(3)(C)

MAMATKULOV & ASKAROV v TURKEY UNREP ECHR 04/02/2005 APPLICATION NO. 46827/99

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148

EXTRADITION LAW

European arrest warrant

Legal aid - Framework Decision - Irish law - Appropriate venue to interpret Framework Decision - Non-availability of statutory legal aid to respondent - Whether art 11.2 imposed obligation to provide legal aid to respondent - Whether obligation on State to provide statutory scheme of legal aid - Minister for Justice v Olsson [2011] IESC 1, [2011] 1 IR 384; Minister for Justice v Altaravicius [2006] IESC 23, [2006] 3 IR 148 applied - Mamatkulov v Turkey (46827/99 and 46951/99) 14 BHRC 149 considered - European Arrest Warrant Act 2003 (No 45), ss 10, 13, 16 - Constitution of Ireland 1937, Article 15.2.1 - Council Framework Decision of 13/6/2002, art 11.2 - Treaty on European Union, art 6 - Charter of Fundamental Rights of the European Union (2010/C83/02), arts 47 and 48 - European Convention on Human Rights 1950, art 6 - Surrender granted (2010/434EXT - Edwards J - 15/7/2011) [2011] IEHC 289

Minister for Justice and Law Reform v McGuinness

1

JUDGMENT of Mr Justice Edwards delivered on the 15th day of July 2011

Introduction.
2

The respondent is the subject of a European Arrest Warrant issued by the Kingdom of Belgium on the 1 st of September, 2010. This warrant was subsequently endorsed for execution by the High Court on the 26 th of November, 2010 in this jurisdiction. The respondent was arrested on the 31 st of January, 2011 by Garda Sean Fallon at Navan District Court House in Navan, County Meath, but does not consent to his surrender to the Belgian state. Accordingly, this Court is now being asked by the applicant to make an Order pursuant to s. 16 of the European Arrest Warrant Act, 2003 as amended (hereinafter referred to as "the Act of 2003") directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s.16 of the Act of 2003.

3

His surrender is sought, according to the applicant, so that he may serve an outstanding sentence of seven years imposed upon him by the High Court of Ghent on the 18 th January 2010 in respect of twenty-one offences of which he has been convicted in Belgium and which are particularised in that warrant. In respect of these offences, the issuing judicial authority has indicated that they are in the nature of "burglary, housebreaking or false keys" and "being lead persons of a criminal organization". At Part E.I. of the warrant, the boxes relating to "participation in a criminal organization" and "organized or armed robbery", respectively, are ticked. Moreover, there is no entry in Part E. II. and so the ticked boxes relate to all twenty one offences. Accordingly, the issuing state has sought to invoke paragraph 2 of article 2 of the Framework Decision in respect of all twenty one offences. Thus, s.38 (1) (b) of the Act of 2003 applies, and providing the requirements of that provision with respect to minimum gravity are met, correspondence does not require to be demonstrated. As an aggregate sentence of seven years imprisonment has been imposed on the respondent those requirements are clearly met.

4

The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 aforesaid are satisfied. Accordingly, as no admissions have been made, the Court is put on inquiry as to 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 dependant upon a judicial finding that they have been so satisfied. In so far as specific points of objection are concerned, the Court is required to consider a single and net point of objection which it is convenient to summarize in the following way.

5

The respondent objects to being surrendered to the issuing state in circumstances where, he says, his surrender cannot be effected "in accordance with the Framework Decision" as is required by s. 10 of the Act of 2003. The contention that his surrender cannot be effected "in accordance with the Framework Decision" is based in turn upon an assertion that he has no entitlement to legal aid in "accordance with national law" for the purpose of contesting his surrender to the issuing State, and which he maintains is an express requirement of Article 11.2 of the Framework Decision, and an implied requirement of Article 47 of the Charter of Fundamental Rights of the European Union (hereinafter "the Charter"). In particular, he contends that the possibility of availing of the Attorney General's Scheme (hereinafter "the A.G.'s Scheme" or "the Scheme") does not represent a sufficient discharge of the State's obligation to provide him with legal aid in accordance with national law because the A.G.'s Scheme is an administrative scheme only and is non-statutory.

Uncontroversial s. 16 issues
6

The Court has received an affidavit of Garda Sean Fallon sworn on the 30 th of March, 2011 and has also received and scrutinised a copy of the European Arrest Warrant in this case. Moreover the Court has also inspected the original European Arrest Warrant which is on the Court's file and notes that it bears this Court's endorsement. The Court is satisfied following its consideration of this evidence and documentation that:

7

(a) the person before it is the person in respect of whom the European Arrest Warrant was issued;

8

(b) the European Arrest Warrant has been endorsed for execution in accordance with s. 13 of the Act of 2003;

9

(c) the European Arrest Warrant is in the correct form;

10

(d) no issue arises in the circumstances of this case as to trial in absentia such as to require an undertaking under s. 45 of the Act of 2003;

11

(e) the High Court is not required, under s. 21A, 22, 23, or 24 (inserted by ss. 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the Act of 2003;

12

(f) save for the specific objection that has been raised which is dealt with later in this judgment, the surrender of the respondent is not otherwise prohibited by Part 3 of the Act of 2003 or by the Framework Decision (including the recitals thereto).

13

In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) Order 2004, S.I. 4/2004 (hereinafter referred to as "the 2004 Designation Order"), and duly notes that by a combination of s 3(1) of the Act of 2003, and article 2 of, and the Schedule to, the 2004 Designation Order Belgium is designated for the purposes of the Act of 2003 as being a state that has under its national law given effect to the Framework Decision.

Evidence in support of the respondent's objection.
14

The respondent relies upon an affidavit sworn by his solicitor Anne Dolan, sworn on the 29 th of March 2011, paragraphs 2 to 5 of which are in the following terms:

15

2 "2. My client, Mr McGuinness, advises me and I believe that he lacks the requisite financial resources to fund the defence of these proceedings..... Mr McGuinness completed a Criminal Legal Aid Statement of Means form, upon which marked with the letters "A.D." I have endorsed my name prior to the swearing hereof, in which he confirms his comparative impecuniosity. Notwithstanding, I have agreed to act for him, to secure him Legal Aid, to which counsel advises he is entitled on the basis of Article 11 (2) of the Framework Decision in conjunction with section 10 of the EAW Act 2003.

16

3. It appears and I am so advised that neither of the two statutory legal aid regimes apply to him. Should the Minister contend to...

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