Min for Justice v O Falluin Orse Fallon

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 08 October 2008
• Neutral Citation: [2008] IEHC 302
• Docket Number: Record Number: No. 115 Ext./2007
• Court: High Court
• Date: 08 October 2008

Min for Justice v Ó Fallúin

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Micheál Ó Fallúin

Respondent

[2008] IEHC 302

Record Number: No. 115 Ext./2007

THE HIGH COURT

EXTRADITION

European arrest warrant

Third application for surrender - Surrender for prosecution for offence on charge of conspiracy to defraud - Points of objection - Whether underlying domestic warrant spent under English law - Whether warrant spent once arrest by Gardai - Principle of mutual recognition - Whether European arrest warrant enjoys independent validity - Whether court must be satisfied that European arrest warrant duly has been duly issued - Determination of issue of English law - Endorsement for execution in jurisdiction without legal authority - Command in warrant incapable of fulfilment due to closure of court - Delay - Whether failure to observe requirement of urgency and expedition - Absence of evidence of prejudice - Onus on applicant - Res judicata - Estoppel - Principle of finality - Ability to re-issue warrant and recommence surrender procedure - Matter of complaint for issuing member state - O'Rourke v Governor of Cloverhill Prison [2004] 2 IR 456, Minister for Justice v Altaravicius [2006] 3 IR 148, Minister for Justice v Stapleton [2007] IESC 30 [2008] 1 IR 669 and Rimsa v Governor of Cloverhill Prison (Unrep, SC, 23/7/2008) considered - European Arrest Warrant Act 2003 (No 45), ss 10, 13 and 37 - Surrender ordered (2007/115EXT - Peart J - 8/10/2008) [2008] IEHC 302

Minister for Justice, Equality and Law Reform v Ó Fallúin

Facts: The surrender of the respondent was sought on three occasions by the United Kingdom so that the respondent could face charges of conspiracy to defraud. A number of objections were raised to the surrender of the applicant. The issue arose as to whether inter alia the underlying warrant was spent, whether the underlying warrant could not be executed as his production to a nominated building was not possible by reason of its redevelopment and whether the surrender of the respondent was prohibited by delay, res judicata and estoppel. The issue also arose as to whether arrest of the respondent had taken place lawfully. The first surrender proceedings had determined that the warrant was not spent and that the warrant had been duly issued.

Held by Peart J. that the respondent had not discharged the onus of proof as to the allegation of delay as no evidence had been sworn as to any prejudice suffered. The circumstances of the case were particularly unusual. The argument made as to the existence of a building as an objection was without merit. The domestic warrant was not executed under English law and was not spent. The police were not required to obtain a fresh warrant. There was no basis for concluding that the issuing judicial authority could not issue a second arrest warrant. The Court was obliged to make the order sought for surrender.

Reporter: E.F.

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S45

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

EXTRADITION ACT 1965 PART III

EUROPEAN ARREST WARRANT ACT 2003 S50

O'ROURKE v GOVERNOR OF CLOVERHILL PRISON & AG 2004 2 IR 456 2004/40/9259

MAGISTRATES' COURT ACT 1980 S125 (UK)

EUROPEAN ARREST WARRANT ACT 2003 S16

CONSTITUTION ART 40.4

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8.1

EXTRADITION ACT 2003 S142 (UK)

MAGISTRATES' COURT ACT 1980 S126 (UK)

INDICTABLE OFFENCES ACT 1848 S12 (UK)

BACKING OF WARRANTS (REPUBLIC OF IRELAND) ACT 1965

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148 2006 IESC 23

MAGISTRATES' COURT ACT 1980 S1(1)(b) (UK)

EUROPEAN ARREST WARRANT ACT 2003 S37

MIN FOR JUSTICE v STAPLETON UNREP SUPREME 26.7.2007 2007/41/8499 2007 IESC 30

EXTRADITION ACT 1965 S50(2)(bbb)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 17(1)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 17

RIMSA v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 23.7.2008 (EX TEMPORE)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 17(7)

Judgment of

Mr Justice Michael Peart

1 This is the third attempt on the part of the authorities in the United Kingdom to seek the surrender of the respondent to that jurisdiction so that he can face prosecution on a charge of conspiracy to defraud. It will be necessary to refer to the previous history of these attempts in order to address the objections to surrender relied upon by the respondent on the present application.

2 The present application for his surrender proceeds on foot of a European arrest warrant which issued on the 17th April 2007, which was endorsed by the High Court on the 4th July 2007, and on foot of which the respondent was duly arrested by Sgt Anthony Linehan on the 13th July 2007 and brought before the court as required by section 13 of the European Arrest Warrant Act2003, as amended. He was remanded from time to time on bail pending the hearing of this application for his surrender under section 16 (1) of the Act.

3 No issue is raised as to the identity of the respondent, and I am satisfied in any event from the affidavit evidence of Sgt. Linehan that the person whom he arrested on the 13th July 2007 is the person in respect from this European arrest warrant was issued.

4 The offence for which the respondent's surrender is sought for the purpose of prosecution has already been found to correspond to an offence in this jurisdiction by Finlay Geoghegan J. when she determined the previous application for surrender under a European arrest warrant, and no further issue arises in relation to correspondence on the present application. That offence also satisfies the minimum gravity requirement since it has the capacity to attract a maximum sentence of 10 years imprisonment.

5 No undertaking is required under Section 45 of the Act since any trial of the respondent has yet to take place in the issuing state.

6 I am satisfied also that there is no reason to refuse to order surrender under sections 21A, 22, 23 or 24 of the Act, and no issue has been raised in relation to those sections on the present application.

7 However, a number of objections are raised against the making of an order for the respondent's surrender, including under Part III of the Act and the Framework Decision, and I will deal with these in due course having first set out some relevant background history to the present application.

8 The surrender of the respondent was first sought on foot of an extradition request from the United Kingdom which was made under the 'backing of warrants' procedure provided for in Part III of the Extradition Act1965, and in respect of the same offence as that for which his surrender is now sought in the present application. That first request for surrender was made on foot of a United Kingdom warrant dated the 16th December 2003 which was sent over to this jurisdiction under the provisions of the 1965 Act. It was "produced" to the Assistant Commissioner of An Garda Síochána on the 2^nd January 2004 for endorsement, and was endorsed by him on that day for execution here. However, the European Arrest Warrant Act, 2003 had come into force on the previous day, the 1st January 2004. Section 50 of that Act repealed Part III of the 1965 Act, save in respect of any Part III warrants which had been "produced" to the Assistant Commissioner prior to the 1^st January 2004. Notwithstanding, the respondent was arrested on foot of that "backed" warrant on the 8^th January 2004, thereafter being held in custody until the 30^thJanuary 2004 when he was granted bail.

9 Following the Supreme Court's decision inO'Rourke v. Governor of Cloverhill Prison [2004] 2 IR. 456, an application was made to the High Court on the 22^nd June 2004 to have the Part III application struck out on consent, and the applicant was thereupon released. The basis for the applicant's consent was that the warrant on foot of which the respondent had been arrested had not been 'produced' to the Assistant Commissioner for endorsement prior to the coming into operation of the European Arrest Warrant Act 2003, as had occurred also in the case of O'Rourke, and accordingly there was no lawful basis for the arrest of the respondent on foot of it.

10 The first European arrest warrant issued from Bow Street Magistrates Court, London on the 21st June 2004, being the day prior to the said application for the respondent's release. The underlying domestic warrant leading to the issue of that European arrest warrant was the same domestic warrant which had been the subject of the Part III endorsement already referred to, and on foot of which the respondent had previously been arrested. That European arrest warrant was endorsed for execution by order of the High Court dated the 5th July 2005, and the respondent was duly arrested on foot of it and brought before the Court as required. He was remanded in custody pending the hearing of the application for his surrender. On that application, Finlay Geoghegan J. ordered his surrender, and his committal to prison pending surrender, by order dated 20th October 2005, having found as a fact, on the evidence then available to her on that application, that the first arrest of the respondent on foot of the Part III warrant already referred to on the 8th January 2004 did not constitute 'execution' of that warrant, and had therefore not rendered the said domestic warrant "spent" as, according to the evidence of English law before her, a warrant...