Min for Justice v Fallon Aka O Falluin

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 October 2005
• Neutral Citation: [2005] IEHC 322
• Docket Number: Record No.36EXT/2005
• Court: High Court
• Date: 14 October 2005

[2005] IEHC 322

THE HIGH COURT

Record No.36EXT/2005

MIN FOR JUSTICE v FALLON AKA O FALLUIN

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 (AS AMENDED)

BETWEEN

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT

AND

MICHAEL FALLON AKA MICHÉAL Ó FALL ÚIN

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S16

EXTRADITION ACT 2003 S142(2)

MAGISTRATE COURTS ACT 1980 S125(1) (UK)

AG v PARKE UNREP SUPREME 6.12.2004 2004/3/577

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 PART III

EUROPEAN ARREST WARRANT ACT 2003 S10

EXTRADITION

European arrest warrant

Validity - Execution of warrant - Compliance with framework decision - Whether court obliged to inquire into validity of European arrest warrant - Whether underlying domestic warrant executed - Extradition Act 1965 (No17), Part III - European Arrest Warrant Act2003 (No 45), ss 5, 10, 13, 16, 37(1)(b, 38)and 42 - English Magistrates' Courts Act1980 (c 43), s 125 - English Extradition Act2003 (c 41), s 142 - European Council Framework Decision 2002/584/JHA -Surrender ordered (2005/36Ext - Finlay Geoghegan J - 14/10/2005) [2005] IEHC 322

Minister for Justice, Equality and Law Reform v Fallon (aka Ó Fallúin)

Facts: a “domestic” warrant for the arrest of the applicant was issued by Bow Street Magistrate’s Court on the 12th December, 2003. That warrant was sent to Ireland and endorsed for execution there and the applicant was arrested in the State on foot thereof. A European arrest warrant was subsequently issued by Bow Street Magistrate’s Court, England on the 31st June, 2004, seeking the rendition of the applicant to England. The High Court (Finlay Geoghegan J.) delivered a judgment on the 9th September, 2005, on a preliminary issue in a hearing under section 16 of the European Arrest Warrant Act 2003 where it decided that it should enquire into the issue of whether the European arrest warrant issued in respect of the respondent was duly issued.

Held by Finlay Geoghegan J in holding that the warrant issued on the 12th December, 2003 was in force on the 21st June, 2004, and that the European arrest warrant issued on the 21st June, 2004 was duly issued within the meaning of section 10 of the Act of 2003, that the application should not be considered as adversarial proceedings between the parties but rather the Court was put on an inquiry and the proceedings had an inquisitorial nature. That the warrant issued on the 12th December, 2003, was not executed in English law as the affidavit of laws of the applicant gave a reasoned explanation for which the deponent formed the view that the English domestic warrant was not executed in English law based upon the relevant English statute whereas the respondent had not proffered any evidence, nor was the Court aware of any reason, for which it should not rely upon the applicability of the relevant English statute that the respondent be brought before Bow Street Magistrate’s Court before the English domestic warrant could be considered to have been executed in English law.

Reporter: P.C.

Ms. Justice Finlay Geoghegan

1 This judgment is supplemental to a judgment I delivered herein on 9th September, 2005, on a preliminary issue in the hearing under s. 16 of the European Arrest Warrant Act,2003 (as amended).

2 In that judgment I decided that on the facts of this application the court should enquire into the issue as to whether the European arrest warrant issued by Bow Street Magistrates” Court on 21st June, 2004, was duly issued. As appears from that judgment I reached the decision on the evidence of English law then before the court by the affidavit of Peter Cauldwell, Barrister of England and Wales. That affidavit had been filed by the solicitors for the respondent.

3 I then adjourned the balance of the hearing under s. 16 of the Act of 2003 to allow the applicant and the respondent, if he so wished, to obtain further evidence of English law or of compliance with the requirements of the Framework Decision (or the Framework Decision as implemented in the United Kingdom) in relation to the issue of the European arrest warrant on 21st June, 2004. As appears from the penultimate paragraph of my first judgment I indicated that it appeared desirable that such additional evidence of English law be obtained on an agreed set of facts as to precisely what occurred in this jurisdiction in relation to a warrant issued on 16th December, 2003, at Bow Street Magistrates” Court ("the English domestic warrant") at the end of 2003 and during 2004. Subsequent to the delivery of the judgment I gave directions as to the time within which an affidavit of English law should be filed and delivered by the applicant; the time within which any further affidavit of English law should be filed and delivered by the respondent and also the time within which either party if they so wished should serve a notice of intention to cross-examine the English deponents.

4 An affidavit of Clive Victor Nicholls Q.C., sworn on 22nd September, 2005, was filed by the applicant. This was filed and delivered some days outside the time limit specified. When the matter was mentioned before me on 4th October I allowed the respondent a further period to file a further affidavit of Peter Cauldwell, Barrister, if he so wished. I also fixed a new time within which the parties were to determine whether they wished to cross-examine the deponents as to English law.

5 On Tuesday 11th October, I was informed by counsel for the respondent that it was not intended to file any further affidavit from Mr. Cauldwell and was informed by both counsel that it was not intended to cross-examine the deponents as to English law and that the balance of the hearing could proceed.

6 On consent, I permitted the filing of an affidavit sworn by Mr. O'Donovan, solicitor for the respondent, on 11th October. That affidavit exhibits a copy of the endorsed 2003 English warrant and the related certificate and affidavit, the originals of which are on the High Court file in proceedings 2004 No. 2 Ext. between Attorney General, applicant and Michael Anthony Fallon, respondent. That original warrant is endorsed by Mr. Joe Egan, Assistant Commissioner of the Garda Síochána, authorising the execution of the warrant in the State by a member of An Garda Síochána. It is also endorsed with a signature of a Sergeant Martin O'Neill, confirming that he executed the warrant by arresting the respondent and bringing him before the High Court on 8th January, 2004.

7 For the reasons set out in the first judgment I determined that, because of the affidavit evidence of Mr. Peter Cauldwell, this Court should enquire as to whether the European Arrest Warrant was duly issued on 21st June, 2004 , i.e. was issued in accordance with the requirements of the Framework Decision or the Framework Decision as implemented in England and Wales. The affidavit evidence of Mr. Cauldwell only suggests one reason for which this might not be so. It is that as a matter of English law the 2003 warrant could not have been validly executed against the respondent after 8th January, 2004, and hence was not a valid basis upon which to issue the European Arrest Warrant on 31st June, 2004.

8 Mr. Nicholls Q.C. and Mr. Caldwell are in agreement that the Extradition Act, 2003 gave effect to the Council Framework Decision in England and Wales. Further, that s. 142 of the Extradition Act, 2003 provides for the issue of a European Arrest Warrant. This states:

9 2 "(1) The appropriate judge may issue a Part 3 warrant in respect of a person if û

10 (a) a constable or an appropriate person applies to the judge for a Part 3 warrant, and

11 (b) the condition in subsection (2) is satisfied.

12 (2) The condition is that a domestic warrant has been...