Min for Justice v Gorman

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Michael Peart
Judgment Date22 April 2010
Neutral Citation[2010] IEHC 210
Docket Number[2009 No. 60 EXT]
Date22 April 2010

[2010] IEHC 210

THE HIGH COURT

[Record Number: No. 60 Ext./2009]
Min for Justice v Gorman

Between:

Minister for Justice, Equality and Law Reform
Applicant

And

Anthony Patrick Gorman
Respondent

COUNCIL FRAMEWORK DECISION 2002 ART 2.2

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S321A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 S13

MIN FOR JUSTICE v HALL UNREP SUPREME 7.5.2009 2009/39/9728 2009 IESC 40

MIN FOR JUSTICE v O'FALLUIN UNREP PEART 8.10.2008 2008/41/8959 2008 IEHC 302

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S11

COUNCIL FRAMEWORK DECISION 2002 RECITAL 12

EUROPEAN ARREST WARRANT ACT 20032003 ACT 2003 S37

ASLITURK v GOVERNMENT OF TURKEY 2002 EWHC 2326

EXTRADITION ACT 2003 S6 (UK)

CANNON v MIN FOR MARINE 1991 1 IR 82

DALY v MIN FOR MARINE 2001 3 IR 513

EVISTON v DPP 2002 3 IR 260

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41.1.1

CONSTITUTION ART 41.1.2

EB KOSOVO (FC) v SECRETARY OF STATE FOR THE HOME DEPT 2008 4 AER 28 2008 UKHL 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)(F)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.2

MIN FOR JUSTICE v GHEORGIE UNREP PEART 9.4.2009 2008/41/8827 2008 IEHC 115

SILVENKO v LATVIA 2004 39 EHRR 24

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4(A)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4(C)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2005 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S16

SEZEN v NETHERLANDS 2006 43 EHRR 621

EXTRADITION

European arrest warrant

Family rights - Proportionality - Surrender to issuing state -Whether surrender would disproportionately interfere with family rights - Applicable test - Right to fair trial with reasonable expedition - Delay - Whether abuse of process - Res judicata - Whether issues determined by earlier proceedings brought under old statutory regime - Minimum gravity - Whether offence for which surrender sought punishable by more than 3 years' imprisonment - Political opinion - Meaning of term - Whether warrant issued for purpose of facilitating prosecution brought on account of political opinion - Legitimate expectation - Whether legitimate expectation arising from previous proceedings that would further extradition proceedings would not be brought - Slivenko v Latvia (2004) 39 EHRR 24 applied; EB (Kosovo) v Home Secretary [2008] UKHL 41, [2008] 3 WLR 178 and R. (Razgar) v Home Secretary [2004] UKHL 27, [2004] 2 AC 368 followed; Sezen v Netherlands [2006] 43 EHRR 621 considered; Minister for Justice v Gheorghe [2009] IESC 76, (Unrep, SC, 18/11/2009) and Asliturk v Turkey [2002] EWHC 2326 (Admin), (Unrep, English HC, McCombe J, 8/11/2002) distinguished; Cannon v Minister for the Marine [1991] 1 IR 82 and Eviston v DPP [2002] 3 IR 260 considered; Minister for Justice v Hall [2009] IESC 40, (Unrep, SC, 7/5/2009) and Minister for Justice v Stapleton [2007] IESC 30, [2008] 1 IR 669 applied - European Arrest Warrant Act 2003 (No 45), ss 13(1), 37(1) and 38(1) - Constitution of Ireland 1937, Article 41.1 - European Convention on Human Rights and Fundamental Freedoms 1953, art. 8 - Surrender refused (2009/60Ext - Peart J - 22/4/2010) [2010] IEHC 210

Minister for Justice, Equality and Law Reform v Gorman

Facts: The surrender of the respondent was sought in the United Kingdom on a European arrest warrant issued in 2008. His surrender was sought for his prosecution for two offences, namely murder and conspiracy to murder. The offences were alleged to have been committed in 1992. The points of objection raised the issues of inter alia the delay in the issue of the European arrest warrant, the delay in obtaining a fair trial, the provisions of the Belfast Agreement, seeking to prosecute an individual for their political opinion and legitimate expectations as to constitutional and family rights pursuant to Article 8 ECHR. The respondent contended that since 1994 he had resided in Ireland with his family and had on the basis that he never could nor would be extradited or otherwise ordered back to the United Kingdom.

Held by Peart J. that the delay objection failed as did the argument in respect of minimum gravity, the Belfast Agreement, legitimate expectations and his prosecution for his political opinion. However, as a matter of probability the surrender of the respondent would result in his separation from his wife and family. The pressing social need to surrender the respondent was diluted by the delays encountered in the case. Proportionality would not be satisfied on the unique and exceptional facts of the case in the event of the respondent being surrendered. The application for surrender would be refused.

Reporter: E.F.

1

Mr Justice Michael Peart delivered on the 22nd day of April, 2010:

2

The surrender of the respondent is sought by a judicial authority in the United Kingdom under a European arrest warrant which issued there on the 14 th February 2007. Following its transmission to the Central Authority here, the warrant was on the 4 th March 2009 endorsed for execution by the High Court, and in due course on the l2 th May 2009 the respondent was arrested on foot of same, and he was thereafter brought before the High Court as required, and from where thereafter he has been remanded from time to time pending the hearing and determination by the Court of the application for surrender.

3

No issue is raised in relation to the identity of the respondent, and I am satisfied in any event from the affidavit evidence of Sgt. Kirwan, who arrested him, that the person arrested is the person in respect of which this warrant has been issued.

4

His surrender is sought so that he can be prosecuted for two offences which are set forth in the warrant, namely murder and conspiracy to murder. Each offence satisfies the minimum gravity requirement under the Framework Decision and the Act, and each has been marked as being an offence within the list of offences specified in the Framework Decision as being ones in respect of which correspondence /double criminality is not required to be verified. An issue has been raised to the effect that the judicial authority has marked 'terrorism' as well as 'murder' in the Article 2.2 list and that there is nothing in the warrant itself to suggest that these offences are related to terrorism. It is unnecessary to address that objection, since I am satisfied in any event that each alleged offence corresponds to an offence in this State. That point is also made on the basis that since there is no detail of any terrorist offence set forth in the warrant, it would appear that there may be a breach of the rule of specialty since upon surrender the respondent may be prosecuted for a terrorist offence not set forth in the warrant. In my view that is a far-fetched submission, and not capable of being sustained on any reasonable reading of the warrant. In my view the presumption in relation to specialty is not rebutted.

5

These offences are alleged to have been committed by the respondent in 1992, and it is appropriate at this point to note that in 1994 the respondent was arrested here for the purpose of extradition to the United Kingdom in respect of the same offences, and brought before the District Court pursuant to the provisions of Part III of the Extradition Act, 1965, as amended. He was remanded in custody on a couple of occasions until a date in April 1994 when Counsel for the Attorney General informed the Court that no evidence was being offered and the respondent was discharged. The background to those events include that another person, Joseph Magee, had also been arrested for the purpose of his extradition on similar charges, but the application for his extradition was refused by the High Court here, on the basis that the offences constituted political offences and that the case against him had been the subject of such adverse publicity in the United Kingdom that his right to a fair trial had been prejudiced. It was in the light of that situation that no evidence was offered in relation to the application for the respondent's extradition in 1994, and he was discharged. Prior to his being discharged, the respondent has been in custody for approximately two months.

6

That background will be relevant to some of the Points of Objection which are argued on the respondent's behalf by Aileen Donnelly SC. I will come to those objections and submissions.

7

There is no reason to refuse to order surrender under any provision of sections 21A, 22, 23 or 24 of the Act.

8

It remains to determine whether there is any reason under Part III of the Act or the Framework Decision, or generally, that his surrender is prohibited and the order sought be refused.

Points of Objection:
9

Points of Objection were filed in July 2009, but these were replaced by Amended Points of Objection filed on the 21 st October 2009, and it is the latter to which I shall refer.

10

The issues relied upon can be addressed under the following headings:

11

1. Delay in the issue of the European arrest warrant/Abuse of process

12

2. Delay - fair trial

13

3. Legitimate expectation that he would not be surrendered/extradited - constitutional rights

14

4. Legitimate expectation re: family rights

15

5. Res Judicata/Issue Estoppel

16

6. Surrender sought for prosecution on account of his political opinion

17

7. Minimum gravity - Belfast Agreement.

The respondent's grounding affidavit and supplemental affidavit:
18

In his first affidavit...

To continue reading

Request your trial
29 cases
  • Minister for Justice v D.S.
    • Ireland
    • High Court
    • 9 June 2015
    ...respondent 73 Counsel for the respondent relied primarily upon the decision in Minister for Justice, Equality and Law Reform v. Gorman [2010] 3 I.R. 583. He submitted that his position is all but indistinguishable from that of the respondent in that case. In fact, he submitted that the posi......
  • Minister for Justice & Equality v T.E.
    • Ireland
    • High Court
    • 19 June 2013
    ...FOR JUSTICE v BAILEY UNREP SUPREME 1.3.2012 2012/25/7268 2012 IESC 16 EUROPEAN ARREST WARRANT ACT 2003 S37(2) MIN FOR JUSTICE v GORMAN 2010 3 IR 583 2010/34/8621 2010 IEHC 210 EXTRADITION ACT 1965 PART III MIN FOR JUSTICE v GHEORGHE UNREP SUPREME 18.11.2009 2009/39/9656 2009 IESC 76 SLIVEN......
  • MINISTER for JUSTICE v TOBIN [High Court, Supreme Court]
    • Ireland
    • Supreme Court
    • 19 June 2012
    ...J, 5/11/2010); Minster for Justice v Gheorghe [2009] IESC 76, (Unrep, SC, 18/11/2009); Minister for Justice v Gorman [2010] IEHC 10, [2010] 3 IR 583; Minister for Justice v McG [2007] IEHC 47, (Unrep, Peart J, 30/1/2007); Minister for Justice v. McGrath [2005] IEHC 116, [2006] 1 IR 321; Mi......
  • The Minister for Justice and Equality v E.S.
    • Ireland
    • High Court
    • 19 June 2014
    ...19.6.2013 2013/32/9460 2013 IEHC 323 MIN FOR JUSTICE v G (RP) UNREP EDWARDS 18.7.2013 2013/32/9609 2013 IEHC 54 MIN FOR JUSTICE v GORMAN 2010 3 IR 583 2010/34/8621 2010 IEHC 210 MIN FOR JUSTICE v GHEORGHE UNREP SUPREME 18.11.2009 2009/39/9656 2009 IESC 76 MIN FOR JUSTICE v BEDNARCZYK UNREP......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT