Min for Justice v H (PP)
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 24 May 2011 |
| Neutral Citation | [2011] IEHC 211 |
| Court | High Court |
| Date | 24 May 2011 |
[2011] IEHC 211
THE HIGH COURT
- AND -
EUROPEAN ARREST WARRANT ACT 2003 S16
CHILD ABDUCTION ACT 1984 S2(1)(B) (UK)
SEXUAL OFFENCES ACT 2003 S9 (UK)
EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2
EUROPEAN ARREST WARRANT ACT 2003 S13
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
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S81
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S82
EUROPEAN ARREST WARRANT ACT 2003 S3(1)
EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004 ART 2
EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004 SCHED
EUROPEAN ARREST WARRANT ACT 2003 S11(1A)
EUROPEAN ARREST WARRANT ACT 2003 S22
CHILD ABDUCTION ACT 1984 S2 (UK)
EUROPEAN ARREST WARRANT ACT 2003 S37
EUROPEAN ARREST WARRANT ACT 2003 S15
EUROPEAN ARREST WARRANT ACT 2003 S11
CRIMINAL LAW AMDT ACT 1935 S14
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2
SEX OFFENDERS ACT 2001 S37
EUROPEAN ARREST WARRANT ACT 2003 S20(2)
SEXUAL OFFENCES ACT 2003 S9(1) (UK)
EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(A)
FARRELL & HANRAHAN THE EUROPEAN ARREST WARRANT IN IRELAND 2011
MIN FOR JUSTICE v BUTENAS UNREP PEART 24.11.2006 2006/39/8381 2006 IEHC 378
MIN FOR JUSTICE v FERENCA 2008 4 IR 480 2009 1 ILRM 291 2008/40/8765 2008 IESC 52
MIN FOR JUSTICE v DESJATNIKOVS 2009 1 IR 618 2008/40/8711 2008 IESC 53
MIN FOR JUSTICE v PUTA & SULEJ UNREP SUPREME 6.5.2008 2008/41/9000 2008 IESC 30
MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30
MIN FOR JUSTICE v HALL UNREP SUPREME 7.5.2009 2009/39/9728 2009 IESC 40
EUROPEAN ARREST WARRANT ACT 2003 PART III
JUDGMENT of Mr Justice Edwards delivered on the 24th day of May 2011
The respondent is said to be the subject of a European Arrest Warrant issued by the United Kingdom of Great Britain and Northern Ireland on the 7 th of July, 2010. That warrant was endorsed for execution by the High Court in this jurisdiction on the 19 th of August, 2010. The man before the Court was arrested on the 22 nd of March 2011 by Sgt Kirwan. However it is not conceded that he is the person to whom the European Arrest Warrant relates, and identity is an issue.
This Court is now being asked 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. In the circumstances the Court must enquire whether it is appropriate to do so having regard to the terms of s.16 of the 2003 Act.
The respondent, as is his entitlement, does not concede that any of the requirements of s. 16 aforesaid are satisfied. Accordingly, as no admissions have been made, the Court is put on inquiry as to whether the requirements of s. 16 of the 2003 Act, 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. In so far as specific points of objection are concerned, the Court is required to consider a number of specific objections to the respondent's surrender. These will be identified and considered later in this judgment.
The person named in the European Arrest Warrant is wanted for prosecution for five offences in the United Kingdom. These are particularised as being three offences of abducting a child, contrary to s.2 (1) (b) of the Child Abduction Act, 1984 and two offences of sexual activity with a child, contrary to s.9 of the Sexual Offences Act 2003. The issuing state is relying upon paragraph 2 of Article 2 of the Framework Decision and has ticked the box in Part E.I of the European Arrest Warrant relating to "sexual exploitation of children and child pornography." Part E.II is not filled in at all and accordingly Article 2(2) is being invoked in respect of all five offences.
Minimum gravity is prima facie satisfied because the maximum sentence that may be imposed for each offence of abducting a child is imprisonment not exceeding seven years, and the maximum sentence that may be imposed for each offence of sexual activity with a child is imprisonment not exceeding fourteen years.
The Court has received and scrutinised a copy of the European Arrest Warrant in this case. Moreover the Court has also inspected the original European Arrest Warrant which is on the Court's file and notes that it bears this Court's endorsement. The Court is satisfied following its consideration of this evidence and documentation that:
(a) the European Arrest Warrant in question has been endorsed for execution in accordance with s. 13 of the 2003 Act;
(b) as the person named in the European Arrest Warrant is wanted for prosecution no issue can arise as to trial in absentia such as to require an undertaking under s. 45 of the 2003 Act;
(c) subject to the Court being satisfied that the respondent is the person named in the European Arrest Warrant, the Court is not required, under s. 21A, 22, 23, or 24 (inserted by ss 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the 2003 Act;
In addition the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) Order 2004, S.I. 4/2004 (hereinafter referred to as "the 2004 Designation Order"), and duly notes that by a combination of s 3(1) of the 2003 Act, and article 2 of, and the Schedule to, the 2004 Designation Order, the "United Kingdom of Great Britain & Northern Ireland" is designated for the purposes of the 2003 Act as being a state that has under its national law given effect to the Framework Decision.
The respondent has filed a fourteen paragraph document setting out his points of objection. As paragraph 1 merely purports to put the applicant on full proof (although legally the applicant bears no burden of proof, it is for the Court to be "satisfied" following due enquiry); as paragraph 14 contains nothing of substance and as the Court has been informed that the objections set out at paragraphs 2 and 10 respectively are not being proceeded with, the substantive objections are therefore those set out in paragraphs 3 to 9 inclusive and 11 to 13 inclusive. They are in the following terms:
2 "3. The European Arrest Warrant is not in the form required by section 11 (1 A) of the European Arrest Warrant Act 2003 as amended, and/or the Framework Decision in that does not disclose the name and nationality of the person in respect of whom it is issued. The European Arrest Warrant, together with the 'National Fingerprint Form' appended thereto, specifies three different names and two different nationalities, together with two different dates of birth. The European Arrest Warrant is accordingly invalid.
4. The offences specified in the European Arrest Warrant do not constitute 'sexual exploitation of children and child pornography' and as such article 2.2 of the Framework Decision does not apply. The European Arrest Warrant is therefore invalid.
5. The requesting State has failed to identify any other offence, in the section of the Warrant designed for that purpose, to which the Warrant applies. The European Arrest Warrant is therefore invalid.
6. Without prejudice to the other points of objection set forth herein, the Respondent contends that the offences specified in the European Arrest Warrant under the Child Abduction Act 1984 do not correspond to an offence under the law of the State and the Respondent's surrender is precluded in relation to the 'child abduction' offences and the Respondent shall rely on section 22 of the European Arrest Warrant Act 2003, as amended, in this regard.
7. The 'description of circumstances' set forth in the European Arrest Warrant specifies that on the 23rd of December 2008 the Applicant was served with 'the section 2 Child Abduction Act Notice'. Section 2 of the Child Abduction Act 1984 makes no reference to nor provision for the service of any notice and accordingly the European Arrest Warrant is invalid.
8. The 'nature and legal classification of the offences and the applicable statutory provision" describes the alleged child abduction offences as 'abducting a child, contrary to section 21 (b) of the Child Abduction Act 1984'. There is no such legal provision, and there is no section 21 (b) of the Child Abduction Act 1984. Accordingly the European Arrest Warrant is invalid.
9. The European Arrest Warrant offends against the principle of proportionality and is a breach of the Respondent's right to privacy in so far as it purports to authorise the seizure of the Respondents cash, mobile phones, identity documents, correspondence, and firearms, in circumstances where the European Arrest Warrant does not disclose any basis for such seizure nor does it disclose, on even a prima facie level, how the seizure of such items is in any way relevant to the alleged offences. Accordingly the European Arrest Warrant is invalid
11. The Respondent will not receive a fair trial, if surrendered, and...
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