Min for Justice v Makuch

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 10 May 2013
• Neutral Citation: [2013] IEHC 254
• Court: High Court
• Date: 10 May 2013

Min for Justice v Makuch

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 -

DANIEL MAKUCH

Respondent

[2013] IEHC 254

Record No 108 EXT/2010

Record No 109 EXT/2010

Record No 392 EXT/2010

THE HIGH COURT

Extradition - European arrest warrant - Corresponding offence - Conviction in absentia - Particulars of warrant - Period of imprisonment - European Arrest Warrant Act 2003

Facts: The respondent was the subject of three separate European arrest warrants that were issued by Poland on the 18 ^th June 2009, the 4 ^th February 2010 and the 7 ^th October 2010 respectively, due to alleged offences he had committed there and been convicted of. He refused to surrender to the Polish authorities and so the applicant brought the matter before the court seeking an order to that effect pursuant to s. 16 of the European Arrest Warrant Act 2003 (the 2003 Act’).

In relation to the first warrant, it was the respondent”s contention that he should not be surrendered to Poland because there had been an alleged lack of correspondence in respect of the offences noted on the warrant with offences under Irish law, and that he in fact had not fled the issuing state. He also argued that the warrant failed to specify a number of particulars required under s. 11(1A) of the 2003 Act, notably details about the period of imprisonment he was to face. He further contended that an order of an ‘Internal Court of the Prison at Herb, Woj, Slaskie’ had substituted his original sentence for a suspended sentence of four months, but that this had not been incorporated on the warrant.

In relation to the second warrant, the respondent argued that he had been tried and convicted in his absence, but had not been properly informed of the time, date and location of the trial. In relation to the third warrant, the respondent”s sole challenge was that that this warrant also failed to specify a number of particulars required under s. 11(1A) of the 2003 Act, with the period of imprisonment he was likely to face being once again noted.

Held by Edwards J that the respondent could not be surrendered under the first warrant. The warrant consisted of three offences the respondent had alleged committed, the second one being that he had verbally abused a police officer. It was a requirement under the 2003 Act for the court to find a corresponding offence under Irish law. The court had been invited by the applicant to correspond this offence with the Irish offence of using threatening, abusive or insulting behaviour in a public place pursuant to s. 6 of the Criminal Justice (Public Order) Act 1994, but this was rejected on the basis that the offence occurred in a hospital room which could not be construed as a public place. It was also noted that even if the offence had been carried out in a public place, there was no offence under Irish law of merely insulting a police officer and that a person could only be charged under s. 6 of the Criminal Justice (Public Order) Act 1994 where such an act was done not only in a public place, but with an intention to provoke a breach of the peace or being reckless as to whether a breach of the peace may have been occasioned. The facts of the case outlined in the warrant did not suggest this was so. As an aggregate sentence had been imposed in respect of all three offences, the second offence could not be severed from the other two, therefore the respondent could not be surrendered under the warrant.

In relation to the second warrant, it had emerged during the course of the hearing that the respondent”s contention was in fact correct. On the basis that he had been convicted in his absence but had not been properly notified of the time, date or location of the hearing, with no undertaking being offered by Polish authorities to hold a retrial in relation to the offences, surrender under this warrant was refused.

In relation to the third warrant, the court held that during the course of the hearing, additional information had come to light that clarified that the period of imprisonment the respondent was to face under the third warrant was 16 months. The offence under this warrant also clearly corresponded to an offence under Irish law, notably the offence of robbery under s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. There was therefore no reason not to surrender the respondent to the Polish authorities under s. 16(1) of the Act of 2003.

Respondent surrendered to Polish authorities under the European Arrest Warrant dated the 7th October 2010, pursuant to s. 16(1) of the European Arrest Warrant Act 2003.

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

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.3) ORDER SI 206/2004

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES)(NO.3) ORDER SI 206/2004 ART 2

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

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 222(1)

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 31(2)

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 178(A)(1)

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 31(1)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S3(D)

R v BOGDAL 2008 172 JP 178 2008 EWCA (CRIM) 1

DANGEROUS DOGS ACT 1991 S3(1)

R v WATERS 1963 47 CR APP R 149

STANBRIDGE v HEALY 1985 ILRM 290

ROAD TRAFFIC ACT 1961 S3(1)

ROAD TRAFFIC ACT 1933 S3

FINANCE ACT 1976 S64

ANIMALS ACT 1985 S4

DANGEROUS SUBSTANCES (CONVEYANCE OF PETROLEUM BY ROAD) REGS SI 314/1979

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS SI 193/1981

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS SI 356/1991

ROAD TRAFFIC (LICENSING OF TRAILERS & SEMI-TRAILERS) REGS SI 35/1982

MONTGOMERY v LONEY 1959 NI 171

ROAD TRAFFIC ACT 1955 S39(1)

HARRISON v HILL 1932 JC 13

ELKINS v CARTLEDGE 1947 1 AER 829

DPP v YAMANOHA 1994 IR 565

R v BASSETT 2009 1 WLR 1032

BUCHANAN v MOTOR INSURERS BUREAU 1955 WLR 488

SANDY v MARTIN 1974 CRIM LR 263

MARSH v ARSCOTT 1982 75 CR APP R 211

DPP v MOLLOY 1994 1 IR 583

ROAD TRAFFIC ACT 1961 S3

R v COLLINSON 1931 23 CR APP R 49

LYNCH v BURKE 1996 1 ILRM 114

DOUGAL v MAHON UNREP GANNON 2.12.1988 1989/1/92

ROGER v NORMAND 1995 SLT 411

PARKIN v NORMAN 1983 1 QB 92

PUBLIC ORDER ACT 1936 S5

R v WATERS 1963 47 CR APP R 149

CAWLEY v FROST 1976 1 WLR 1207

PUBLIC ORDER ACT 1936 S9(1)

PUBLIC ORDER ACT 1936 S9

MIN FOR JUSTICE v SZALL UNREP SUPREME 15.2.2013 2013 IESC 7

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(3)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(6)

CRIMINAL JUSTICE ACT 2006 S185

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 PART II

MIN FOR JUSTICE v ORLOWSKI UNREP EDWARDS 7.10.2011 2011/37/10367 2011 IEHC 374

MARSH v ARSCOTT 1982 75 CR APP R 211

THORPE v DPP 2007 1 IR 502

AG v CUNNINGHAM 1932 IR 28

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(II)

EUROPEAN ARREST WARRANT ACT 20032003 PART 3

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

1 JUDGMENT of Mr Justice Edwards delivered on the 10th day of May, 2013

Introduction:

2 In this case the respondent is the subject of three separate European arrest warrants, dated the 18 ^th June, 2009, the 4 ^th February, 2010 and the 7 ^th October, 2010, respectively, and on foot of which the Republic of Poland ("Poland") seeks his rendition for the purposes of having him serve sentences, or the balance(s) thereof remaining to be served, as the case may be, imposed upon him by courts in Myszków, Poland in respect of the various offences that are the subject of the three warrants in question.

3 For convenience, the warrant dated the 18 ^th June, 2009 will hereinafter be referred to as "warrant No 1"; the warrant dated the 4 ^th February, 2010 will hereinafter be referred to as "warrant No 2"; and the warrant dated the 7 ^th October, 2010 will hereinafter be referred to as "warrant No 3".

4 The warrants were indorsed for execution by this Honourable Court and were executed together on the 12 ^th August, 2011 when the respondent was arrested by Garda Ray Moloney. Following execution of the warrants the respondent was brought before the High Court as required by s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). This took place on the on the 13 ^th August, 2011, and oral evidence was received as to arrest and identity which was not challenged. In each case the Court, being satisfied at the s. 13 hearing as to execution of the warrant, and also as to identity, fixed a date for the purposes of s. 16 of the Act of 2003, such date being a date falling not more than 21 days from the date of arrest. Thereafter each case was adjourned from time to time until ultimately a date was fixed for a substantive surrender hearing.

5 The respondent does not consent to his surrender to Poland. 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 dependant upon a judicial finding that they have been so satisfied.

Uncontroversial s. 16 Issues:

6 The Court has received an affidavit of Garda Ray Moloney sworn on the 19 ^th December,...