Min for Justice v Iqbal & Iqbal v Ag & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 24 April 2007
• Neutral Citation: [2007] IEHC 133
• Court: High Court
• Date: 24 April 2007

[2007] IEHC 133

THE HIGH COURT

Record Number: No. 112 Ext./2006

Record Number: No. 5448P/2006

MIN FOR JUSTICE v IQBAL & IQBAL v AG & MIN FOR JUSTICE

Between:

Minister for Justice, Equality and Law Reform

Applicant

and

Mohammed Iqbal

Respondent

Between:

Mohammed Iqbal

Plaintiff

And

The Attorney General, and The Minister for Justice, Equality and Law Reform

EUROPEAN ARREST WARRANT ACT 2003 S16

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

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

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

CONSTITUTION ART 29.4.6

EUROPEAN ARREST WARRANT ACT 2003 S16(4)

MIN FOR JUSTICE v DRAISEY UNREP PEART 24.11.2006 2006 IEHC 375

MIN FOR JUSTICE v BUTENAS UNREP PEART 24.11.2006 2006 IEHC 378

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 PREAMBLE RECITAL 10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 PREAMBLE RECITAL 12

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 ART 1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 ART 2.2

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 ART 23

GILLILAND v GOVERNOR OF MOUNTJOY PRISON 1987 IR 201 1986 ILRM 381 1985 8 2167

CONSTITUTION ART 29.5.2

CONSTITUTION ART 29.5.1

CONTROLLER OF PATENTS DESIGNS & TRADEMARKS & FITZPATRICK v IRELAND & AG 2001 4 IR 229 1998 19 7067

O'MALLEY v CEANN COMHAIRLE 1997 1 IR 427 1997 11 3508

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001 5 1050

CURTIN v DAIL EIREANN 2006 2 ILRM 99 2006 IESC 14

EXTRADITION

European arrest warrant

European arrest warrant - Constitutionality - Surrender - Order for surrender - Right to liberty - Requirement that person in respect of whom order for surrender made had to be committed to prison, without possibility of bail - Whether legislation constitutional - Whether measure proportionate - Whether legislation differed from that approved by Oireachtas - Whether changes in text gave rise to changes in substance - State (Gilliland) v Governor Mountjoy Prison [1987] IR 201, TD v Minister for Education [2001] 4 IR 259 and Curtin v Dáil Éireann [2006] 1 ILRM 99 considered - European Arrest Warrant Act 2003 (No 45), s 16 - Council Framework Decision (2002/584/JHA) - Constitution of Ireland, Article 29.4 - Order for surrender made and constitutional action dismissed (2006/112EXT, 2006/5448P - Peart J - 24/4/2007) [2007] IEHC 133

Minister for Justice v Iqbal

In the first proceedings, the applicant applied under s. 16 of the European Arrest Warrant Act 2003 as amended for the surrender of the respondent to the UK on foot of a European arrest warrant. In the second proceedings, the plaintiff sought declarations inter alia that the Council Framework Decision dated the 13th June, 2002 was not properly ratified by the Oireachtas and that s. 16 of the Act of 2003 was unconstitutional.

Held Peart J. in dismissing the plaintiff’s proceedings and making the orders sought under s. 16 that there was no reason to refuse surrender.

Reporter: R.W.

1 Mr Justice Michael Peart delivered on the 24th day of April 2007 :

2 The first entitled proceeding is an application under section 16 of the European Arrest Warrant Act, 2003, as amended, for the surrender of the respondent to the United Kingdom on foot of a European arrest warrant.

3 In the second proceedings, commenced by way of Plenary Summons, the plaintiff (the respondent in the first proceeding) seeks three declarations as follows:

4 a "A. A declaration that the Council Framework Decision dated the 13th June 2002 was not properly ratified by the Oireachtas as required by the Constitution, and/or that the European Arrest Warrant Act, 2003, as amended, which purports to reflect and implement the Framework Decision is invalid and of no effect.

5 b B. A declaration that Section 16 of the European Arrest Warrant Act, 2003 is unconstitutional and in particular is contrary to the provisions of Articles 38.1 and 40.3 of the Constitution.

6 c C. A declaration that the surrender of the plaintiff pursuant to the European Arrest Warrant Act, 2003 would be contrary to the Constitution and contrary to law."

Application under Section 16 of the Act:

7 The surrender of the respondent is sought pursuant to a European arrest warrant which issued from a competent judicial authority in the United Kingdom on the 18th August 2006. It was duly endorsed here by the High Court for execution, and the respondent was arrested on foot of same on the 13th September 2006, and forthwith thereafter brought before the High Court as required by section 13 of the Act. He has been remanded from time to time pending the determination of the application for his surrender.

8 No issue has been raised as to the identity of the respondent arrested, and I am satisfied from the affidavit evidence of Sgt, Anthony Linehan, the arresting Garda officer, that he is the person in respect of whom the European arrest warrant herein has been issued.

9 His surrender is sought so that he can be prosecuted in the United Kingdom in respect of two offences of indecent assault and three charges of rape. As far as correspondence is concerned, the offence is one of the offences which pursuant to Article 2.2 of the Framework Decision in respect of which double criminality does not have to be verified. In respect of the offences of indecent assault are concerned, I am satisfied from the recitation of the facts giving rise to those offences in the warrant that if the same acts were committed in this State they would give rise to an offence of sexually assault here under section 2 of the Criminal Law (Rape) (Amendment) Act, 1990. The offences set forth in the warrant each satisfy the minimum gravity requirement.

10 Section 45 of the Act is not relevant to this application since it is not a case which has already been dealt with in absentia.

11 There is no reason under sections 21A, 22, 23 or 24 of the Act to refuse surrender. Indeed, there has been no attempt by the respondent to rebut the presumptions in respect of these sections.

12 I am also satisfied that there is nothing in Part III of the Act or the Framework Decision itself which prohibits surrender, and that subject to dealing with the issues raised in the Plenary proceedings, the Court is required to make the order sought under section 16 of the Act. A number of Points of Objection were raised in Points of Objection by the respondent but are not pursued in this application. The issues being relied upon are confined to the declaratory reliefs sought in the Plenary proceedings.

The Plenary proceedings:

13 As set out above the plaintiff in these proceedings contends that the European Arrest Warrant Act, 2003 as amended ("the Act"), and which has given rise to his arrest and the application for his surrender to the United Kingdom is unconstitutional on the basis that the Council Framework Decision dated 13th June 2002 (2002/584/JHA) which the Minister for Justice, Equality and Law Reform agreed to on behalf of the Irish Government and to which effect is given by the Act, differs in some respects from that to which both Houses of the Oireachtas gave their prior approval on the 11th December 2001, as required under Article 29.4.6 of the Constitution, and that as a consequence the Act is not constitutional. A declaration as set forth at A above is sought in that regard.

14 The plaintiff also contends by way of a separate submission that section 16 of that Act is unconstitutional on the basis that it is a requirement of that section that in the event of an order for surrender being made in respect of the plaintiff he must, by virtue of section 16(4) of the Act be committed to a prison pending his surrender being effected pursuant to the order made, without the possibility of being allowed to remain on bail between the making of such an order and his surrender being effected. It is submitted that this is an unconstitutional deprivation of liberty, especially given a situation where the plaintiff following his arrest under section 13 of the Act was remanded on bail, as permitted by the Act, and has complied at all times with all the terms of that bail. The plaintiff seeks a declaration as set forth at B above in this regard. I shall deal with these two reliefs in reverse order for the sake of convenience.

Section 16:

15 The arguments put forward to support seeking this declaration are the same as those argued in the cases of Minister for Justice, Equality and Law Reform v. Draisey, unreported, High Court, 24th November 2006 and Minister for Justice, Equality and Law Reform v. Butenas, and in which I have decided that the words of the section were specific and clearly shows an intention on the part of the legislature that once an order for surrender is made under the section the respondent is to be committed to a prison pending his actual surrender being effected. Unlike the provisions of section 13 of the Act applicable where the respondent is arrested and brought before the Court, and where the Acct provides that the person can be remanded either in custody or on bail pending the hearing of the application for surrender, section 16(4) makes no such provision. I have concluded that the intention of the Oireachtas is clear from the plain and ordinary meaning of the words used in the section, particularly where in section 13 of the Act, it is provided that bail may be granted pending the hearing of the section 16 application, and that the Court is therefore specifically mandated to commit to a prison without the possibility of the respondent at that point being allowed to remain on bail until...