Min for Justice v Hill

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 03 April 2009
• Neutral Citation: [2009] IEHC 159
• Docket Number: Record Number: 2009 No. 3 Ext
• Court: High Court
• Date: 03 April 2009

Min for Justice v Hill

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Anthony John Hill

Respondent

[2009] IEHC 159

Record Number: 2009 No. 3 Ext

THE HIGH COURT

EXTRADITION

European arrest warrant

Correspondence - Offence - Act intended to pervert course of public justice - Whether same offence under Irish law - Substantive offence - Result offence - Continuing offence - Posting of DVD to foreman of jury and trial judge - Whether surrender breach of freedom of thought and expression - Nature of right - Whether offence committed outside issuing state - Whether correspondence established - Interception of DVD - Absence of end result - Whether necessary to view contents of DVD - Ingredient of offence - Whether tendency to and was intended to pervert justice -Approaches to jury -Whether triable in jurisdiction where result intended to be achieved - R v Mickleburgh [1995] 1 Cr App R 297, Reg v Doot [1973] AC 807 and DPP v Stonehouse [1978] AC 55 considered - European Arrest Warrant Act 2003 (No 45), s 44 - Surrender ordered (2009/3EXT - Peart J - 3/4/2009) [2009] IEHC 159

Minister for Justice, Equality and Law Reform v Hill

EUROPEAN ARREST WARRANT ACT 2003 S13

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

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

EUROPEAN ARREST WARRANT ACT 2003 S44

ARCHBOLD, RICHARDSON ARCHBOLD CRIMINAL PLEADING, EVIDENCE & PRACTICE 2006 PARA 28.18

R v MICKLEBURGH (ERNEST HERBERT) 1995 1 CAR 297

DPP v DOOT 1973 AC 807 1973 2 WLR 532 1973 1 AER 940

DPP v STONEHOUSE 1978 AC 55 1977 3 WLR 143 1977 2 AER 909

CHARLETON CRIMINAL LAW 1999 PARA 4.51

EUROPEAN ARREST WARRANT ACT 2003 S5

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent is sought by a judicial authority in the United Kingdom on foot of a European arrest warrant which issued there on the 23^rd December 2008. That warrant was endorsed for execution here by the High Court on the 10^th February 2009, and on the same date the respondent was duly arrested by Sgt. Seán Fallon and, as required by s. 13 of the European Arrest Warrant Act, 2003, as amended, was brought before the High Court, from where he has been remanded from time to time pending the hearing of he present application for his surrender.

2 His surrender is sought so that he can be prosecuted for an alleged offence which is described in the warrant as"doing an act tending or intended to pervert the course of public justice", contrary to Common Law. Minimum gravity is satisfied in relation to that offence since it carries a possible sentence of life imprisonment. It is alleged that the respondent posted from Ireland two packages containing a DVD to the foreman of a jury and the presiding judge at a trial of persons relating to the bombings in London on 7^th July 2005, and that the DVDs in question contained material tending or intended to pervert the course of justice. I set out the detail the alleged offence more fully later in my judgement when considering the issue raised as to correspondence.

3 That offence is one for which correspondence with an offence in this jurisdiction must be established, as it is not an offence marked in the warrant as coming within the categories of offence set forth in Article 2.2 of the Framework Decision.

4 No undertaking is required under s. 45 of the Act since no prosecution has yet occurred.

5 I am satisfied that his surrender need not be refused by virtue of any provision contained in sections 21A, 22, 23 or 24 of the Act, and, subject to reaching a conclusion in relation to the points of objection raised by the respondent, I am satisfied that his surrender is not prohibited by any provision of Part III of the Act or the Framework Decision.

6 The respondent has sworn no affidavit in support of this point of objection. Nevertheless, it has been stated by Mr Kelly in his submissions, that this DVD contains the respondent's opinion in relation to matters the subject of the trial of the persons concerned in relation to their involvement in the London bombings. In that regard I should refer to an averment in the affidavit of Sgt. Seán Fallon, who arrested the respondent herein, that having arrested the respondent he asked him if he knew what this warrant was about, to which the respondent replied"I sent them, I believe these men to be innocent". While Mr Kelly accepts that the right to express views and opinions is not an absolute right, nevertheless the DVD contains no exhortation to a jury or the trial judge to find the accused persons innocent, but rather simply expresses an honest belief or opinion held by the respondent. He submits that it would be an unreasonable abridgment or curtailment of the respondent's right to express his views in this way for him to be surrendered, and that his surrender should be prohibited under Part III of the Act and the Framework Decision. He refers to the statement in the Framework Decision that fundamental rights are respected therein.

7 Mr Farrell on the other hand submits that sending opinions and views in any form, or a DVD as in the present case which represents or advances those views, to a trial judge and jury in an effort to influence the outcome of a trial cannot possibly constitute a protected right, no matter how sincerely held such an opinion is held.

8 There is no possible merit in this point of objection. It goes without saying that in certain circumstances and with proportionate restrictions, every citizen of, and other person in, this State enjoys freedom to express his views, religious or otherwise. But it is clearly recognised that this is not an absolute right to say what one wishes in all situations and to whom one chooses in all circumstances. Certain offences can be committed by the expression of certain extreme views, opinions and statements. Equally an expression or statement of opinion, which may not be considered to be extreme, but which is communicated to certain persons with a criminal intent or an objective which is contrary to law is an offence. Such expressions are prohibited by law, and it includes any statement or communication made to or with a jury foreman or a trial judge which is intended or designed or likely to influence the outcome of a trial. To so provide by law is a reasonable restriction on the freedom of expression. There is no basis in this case for the surrender of the respondent being prohibited on this ground.

9 Mr Kelly submits also that, even if the material was such as to tend to or was intended to pervert the course of justice, it was an offence which was not committed in the United Kingdom, and that accordingly it is an offence which comes within s. 44 of the Act, namely one for which surrender may not be ordered since it is an offence which, in the words of s. 44 of the Act

"……… was committed or is alleged to have been committed in a place other than the issuing state and the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State."

10 The conclusion which I reach in relation to this point of objection is closely linked to issue of correspondence itself, and I will deal with both issues by way of conclusion when dealing with correspondence.

11 As I have said, the offence is of"doing an act tending or intended to pervert the course of public justice", contrary to Common Law.

12 The warrant states in a "brief summary" of the offence that it concerns the sending of two packages sent to Kingston Crown Court addressed to the foreman of the jury and the presiding judge during the course of a trial of offences against persons alleged to have been involved in assisting some other persons who were involved in the London bombings on the 7^th July 2005. It states also that subsequent investigations revealed that similar packages were sent to the homes of relatives of persons who died as a result of those bombs. The warrant sets out in considerable detail in relation to the general background to the alleged offence, including that the packages alleged to have been sent to the Foreman of the jury and to the presiding judge was delivered "via standard post" and "apparently originated in the Republic of Ireland". These packages have been forensically examined by the police, and these examinations have shown, according to the warrant, that the respondent's fingerprints appear thereon. As I have said, there is considerable further detail contained in the warrant and it is unnecessary to set it all out in exhaustive detail.

13 It is submitted by Remy Farrell BL for the applicant that what the respondent is alleged to have done as described in the warrant was done here, it would give rise to the very same offence as that contained in the warrant, namely an offence of perverting the course of justice contrary to Common Law. In other words if the respondent had from outside this State sent packages of material to a jury foreman and trial judge in this State, he would commit the offence, since the material so posted tended and was intended to influence or bear upon the jury and the judge in some way in furtherance of the respondent's belief that the accused persons are innocent of the charges which they were at that time being tried for.

14 Kieran Kelly BL for the respondent has submitted that what the respondent is alleged to have done is simply to have posted from Ireland two packages to the foreman and to the judge in question in the United Kingdom. He refers to the fact that in the warrant it is stated that in fact these...