Min for Justice v Gorka

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 29 March 2011
• Neutral Citation: [2011] IEHC 121
• Court: High Court
• Date: 29 March 2011

[2011] IEHC 121

THE HIGH COURT

Record No 92 EXT/No 2010

Min for Justice v Gorka

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant

- AND -

RAFAL GORKA

Respondent

Abstract:

Criminal law - European Arrest Warrant - Additional information - European Arrest Warrant Act, 2003 - Whether the court when dealing with a section 16 applicant was entitled to receive additional information in respect of the issue of correspondence.

Facts The applicant sought, pursuant to s. 16 of the European Arrest Warrant Act, 2003 the surrender of the respondent pursuant to a European arrest warrant issued by the Republic of Poland in order for the respondent to serve the balance of three separate sentences imposed upon him in respect of six offences. An issue arose in respect of correspondence regarding two offences and the court indicated that it would sever the two non-corresponding offences form the European arrest warrant. As all other matters were in order the court proposed ordering the surrender of the respondent in respect of the remaining four offences. However, an issue arose and the proceedings were adjourned. During the course of that adjournment the applicant sought and was furnished with further information from the Authorities in Poland with regard to the non-corresponding offences. Subsequently, the applicant invited the court to revisit its ruling in respect of correspondence on the basis of the additional information available. Counsel on behalf of the respondent strenuously objected to a re-visitation by the court of its earlier ruling and he relied on the interests of justice and the interests of legal certainty. Reliance was also placed on the High Court decision in Magee v O'Dea [1994] 1 I.R. 501. It was accepted by counsel for the respondent that in the event of the court being disposed to re-visist the issue and take account of the additional information, the court was likely to conclude that the lacunae that had caused it to initially uphold the objection based on lack of correspondence no longer existed. The applicant submitted that a s. 16 hearing was a predominately inquisitorial procedure and that this court should regard it as strongly persuasive that the Supreme Court in Attorney General v Parke [2004] IESC 100 characterised as inquisitorial an analogous procedure under s. 47 of the Extradition Act, 1965 as amended. It was submitted that the court can and should consider all evidence coming into its hands for so long as the inquiry remains open and the court remains seized of the issue. Counsel for the applicant also submitted that the respondent had not pointed to any specific prejudice.

Held by Edwards J. in allowing the application for surrender: That the proceedings herein which were sui generis in nature were more in the nature of an inquiry than an adversarial contest. The decision in Parke was strongly persuasive that the nature of the s. 16 procedure was predominately, if not entirely, inquisitorial. The court was concerned for so long as it had seizin of the case with determining primarily by way of enquiry whether the requirements of s. 16 had been met. For so long as the proceedings were ongoing any issue remained open for further consideration or re-visitation by the court if further or additional information came to hand. The respondent was unable to point to any unfairness or injustice arising from the reliance on the new additional information. Consequently, the court was entitled to, and indeed it was appropriate that it should, both receive and act upon the additional information herein.

Reporter: L.O'S.

1 JUDGMENT of Mr Justice Edwards delivered on the 29th day of March 2011

Introduction

2 The respondent is the subject of a European Arrest Warrant issued by the Republic of Poland on the 1st of December 2009. The warrant was subsequently endorsed by the High Court for execution in this jurisdiction and it was duly executed on the 4 ^th of January 2011. The respondent did not consent to his surrender to the Republic of Poland and the Court was requested 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 2003 Act") directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court has acceded to the applicant's request and on the 22 ^nd of March 2011 made an Order pursuant to s. 16 of the 2003 Act directing that the respondent be surrendered.

3 A discrete issue arose in the course of this Court's consideration of the s.16 issue concerning whether or not the Court could or should take account of additional information provided by the issuing judicial authority at a late stage of the proceedings. It was urged upon the Court by the counsel for respondent that in the circumstances of the case it should not do so. I ruled against the respondent on this issue but indicated that as an important issue had been raised I would give my reasons for doing so in a reserved judgment. The Court's reasons are set out in this judgment.

Relevant background details:

4 The European Arrest Warrant in this case was a sentence type warrant where the respondent's surrender was sought by the issuing state for the purpose of having him serve out the balance of three separate sentences imposed upon him by the District Court in Tarnów on the 22 ^nd of April 2004, the 3 ^rd of November 2004 and the 13 ^th of December 2004 respectively. These sentences related to six offences in all that were prosecuted under three different Polish court file reference numbers.

5 The sentence imposed on the 22 ^nd of April 2004 requiring the respondent to serve 1 year and 6 months in custody, and in respect of which the entire custodial period remains to be served, relates to two offences prosecuted under file reference number II K 110/04.

6 The sentence imposed on the 3rd of November 2004, requiring the respondent to serve 1 year and 6 months in custody, and in respect of which 1 year, 3 months and 4 days remains to be served, relates to two offences prosecuted under file reference number II k 757/04.

7 The sentence imposed on the 13th of December 2004, requiring the respondent to serve 2 years in custody, and in respect of which 1 year, 6 months and 29 days remains to be served, relates to two offences prosecuted under file reference number II K 500/04.

8 The applicant was put on formal proof of all the requirements necessary to permit the Court to make an order under s.16. However, the principal substantive grounds upon which the respondent opposed his surrender was his contention that there was a lack of correspondence in the case of three of the six offences set out in the European Arrest Warrant with offences in this jurisdiction.

9 The matter proceeded to hearing before me on Thursday the 10 ^th of March 2011 and I indicated in the course of an ex-tempore ruling that I was disposed to uphold the respondent's objection in respect of two of the offences, namely those offences covered by file reference no II K 757/04. It is not necessary to particularise the offences in question for the purposes of this judgment.

10 The Court further indicated that in the circumstances it would propose severing the two non-corresponding offences from the European Arrest Warrant but that as regards the remaining four offences the Court was satisfied as to correspondence. Moreover, the Court was satisfied that the warrant was otherwise in order; that the minimum gravity threshold had been met in respect of the remaining matters; that no s. 45 undertaking was required; that the Court was not required to refuse to surrender the respondent under ss. 21A, 22, 23, or 24 of the 2003 Act; and that the Court was not prohibited by Part 3 of the 2003 Act, or the Framework Decision (including the recitals thereto) from surrendering the respondent.

11 It then remained for the Court to make a formal s. 16 order, and in particular to make an order remanding the respondent to a prison there to remain pending his surrender, and, pursuant to s. 16(4) of the 2003 Act to inform the respondent of the matters specified in s. 16(4)(a) and s. 16(4)(b) respectively. However, before any formal s. 16 order was in fact made by the Court, and in response to an enquiry from the Court as to whether the respondent was intending to waive the 15 day period provided for in s. 16 (3) of the 2003 Act, the respondent's Counsel, Mr Remy Farrell B.L., indicated to the Court that he had recently received instructions to the effect that the respondent was the subject of certain domestic criminal proceedings which were possibly ongoing. However, he stated that the exact position was uncertain and would require to be clarified. He further stated that he had appraised the applicant's counsel of such information as he was in possession of and he acknowledged that in the circumstances the applicant might well wish to make an application under s.18(3) of the 2003 Act to have the respondent's surrender postponed. He stated that if a s.18(3) application were to follow, and be acceded to, such postponement would render the 15 day deferral period provided for in the s.16 (3) provision redundant, and the provisions of s. 18(4) would apply instead.

12 The Court then enquired of the applicant's counsel, Ms Melanie Greally B.L., as to the applicant's position. Counsel indicated that she had only recently learned of the possibility of domestic proceedings from Mr Farrell, that she was uncertain as to the exact details and status of those domestic proceedings, and that she had no specific instructions with regard to the issue. However, Counsel added that in her experience it was the almost invariable practice of the applicant to seek a s. 18(3)...