Min for Justice v H (B) (No 2)
|Ms. Justice Donnelly
|31 July 2015
| IEHC 601
|31 July 2015
 IEHC 601
Extradition – The European Arrest Warrant Act 2003 as amended – Family rights – Mental illness – S. 4(2) of the Criminal Law (Insanity) Act, 2006 – Fitness to plead
Facts: The applicant sought an order for the surrender of the respondent to the jurisdiction of the requesting state pursuant to the execution of the European Arrest Warrant (EAW). The respondent objected to his surrender on various accounts, the prominent of which was that he suffered from mental illness and therefore, he was not fit to plead.
Ms. Justice Donnelly granted an order for the surrender of the respondent to the requesting state. The Court held that the respondent satisfied all the criteria prescribed under the EAW. The Court held that the term “fitness to plead” was an issue for criminal trial and for the extradition proceedings which were sui generis. The Court found that the respondent understood the course of proceedings, he was able to instruct his legal representative and understood about election of trial by jury, and thus, he was not unfit to be tried by reason of a mental disorder pursuant to s. 4(2) of the Criminal Law (Insanity) Act, 2006. The Court also considered family rights of the respondent having a successful business being run by his wife representing no financial difficulty and weighted it against the moderately high public interest in his surrender as he had fled the jurisdiction of the requesting state pending the outcome of the procedure of his reversal of sentence and held that it was appropriate that the respondent should be extradited.
1. The surrender of the respondent is sought by the Republic of Poland pursuant to a European Arrest Warrant ("EAW") dated 10 th March, 2009. A number of points of objection were raised by the respondent, the most substantial of which were trial in absentia under s. 45 of the European Arrest Warrant Act, 2003 as amended ("the Act of 2003"), a challenge to the form of the EAW, correspondence, and objections to surrender on the basis of a potential breach of his fundamental rights in particular but not solely concerning his mental health. During the currency of these proceedings before the High Court, an issue was raised regarding a fitness to plead type issue. A contested hearing on oral evidence took place and in a judgment delivered on 30 th July, 2014, Edwards J. was satisfied that the respondent was indeed capable of comprehending the proceedings, making judgments regarding various aspects in respect of which his judgment is required and capable of receiving and comprehending advice and giving appropriate instructions.
2. During the course of the hearing of the s. 16 (1) application for surrender, counsel for the respondent indicated that he was of the view that the judgment of Edwards J. was subject to a right of appeal. Despite enquiry, it remained unclear whether there was a fresh concern about fitness to plead. In light of the opinions of the respondent's consultant psychiatrist given in reports subsequent to the finding of Edwards J., I was of the view that it was being suggested that the matter was a continuing issue and therefore there should be another hearing in light of the time that had elapsed since the previous hearing.
3. At this stage, it is appropriate to remark on the long procedural history to these proceedings, caused mainly by the raising of the unsuccessful fitness to plead issue, by the necessity to seek Polish medical records, by the failure of the respondent to appear on one occasion and by the rather lengthy evidence of Dr. Leader. It is unnecessary to outline the full details but it is certainly regrettable that so much time was taken on issues that were perfectly capable of being resolved much more quickly.
4. The Polish warrant seeks the surrender of the respondent in relation to two separate sentences that were imposed upon him. These were sentences of 2 years imprisonment and 1 year imprisonment. The warrant concerns a total of five offences. The 2 year sentence was imposed in relation to four of those offences. In relation to one of those four offences, it is alleged that "…he was preparing to forge a student card and a school certificate in the way that he was in possession of clean copies of such documents." Further information was given to the effect that the sentenced person was not an authorised person to be in possession of these blank forms of student card and school certificate and "this allows to assume that he was making preparations to forge these documents."
5. Counsel for the Minister submitted that this does not correspond with any offence in this jurisdiction. Forgery is an offence within this jurisdiction and attempted forgery is also an offence. However, the ingredients of the offence of forgery or attempted forgery in this jurisdiction are not satisfied by the above statement by the Polish authorities. On the basis of the Supreme Court decision in Minister for Justice and Equality v. Ferenca, surrender must be refused under the provisions of s. 38 as regards the 2 year sentence imposed on all four matters dealt with under File IIK 677/02.
6. The remaining offence set out in the EAW is that "between 24 March 2002 and 16 May 2001 in Koszalin, acting in short time intervals in order to execute a previously made plan, he stole an Opel Kadet passenger car registration no. [redacted] worth 6000 PLN and then acting together and in collaboration with [PN] he forged the buy and sell contract regarding the stolen car including the seller's signature [SS] acting to the detriment of [SS] and [MB]" (II K 1125/02). The date of the offence was corrected later by the issuing judicial authority to the period "between 24.03.2001 and 16.05.2001".
7. In relation to this final offence, the warrant at paragraph (b) states that the enforceable judgment was in the Local Court in Koszalin on 2 nd July, 2003. At paragraph (c), the warrant indicates that a one year sentence was imposed and that one year of that sentence remains to be served.
8. Part (d) of the EAW is in the format that existed prior to the 2009 Framework Decision. Under the heading "Decision rendered in absentia" all the relevant matters have been crossed out. Under paragraph (f), the EAW recites his prison sentence could not be executed because the respondent had not been present under his permanent address, had not been picking up his correspondence and had not turned up at the prison facility to serve his sentence. In those circumstances, there was sufficient basis to regard him as wanted and the arrest warrant issued.
9. Further information dated 19 th July, 2013 was received from the issuing judicial authority. This confirmed that the respondent "was present at all hearings including the one on 2 July 2003 when the sentence was passed…". He was sentenced to one year imprisonment on that date with a conditional suspension of its execution for a 3 year trial period. By a further decision of 27 th February, 2006, the execution of the sentence passed by the Local Court on 2 nd July, 2003 was ordered because the respondent had committed a new intentional similar offence. It is expressly stated that the respondent was present at the hearing when the execution of the sentence was ordered on 27 th February, 2006. He appealed that decision but the decision was kept in force. He was summonsed to turn up willingly at the prison facility on 29 th May, 2006 in order to serve his sentence. That summons was served on his mother.
10. The Polish authorities state that the respondent applied for a postponement of the execution of the sentence but was refused. He appealed that refusal and by a decision of 15 th September, 2006, such refusal was kept in force. On 29 th November, 2006, the Court made an order to the police to bring the respondent to the remand prison in order to serve his sentence. The Polish authorities state "…until this day the sentenced person has been searched for."
11. There was a subsequent application by the respondent for the sentence to be postponed. He was successful. The respondent has raised issues in relation to this which will be dealt with later in this judgment at paragraph 25.
12. The surrender provisions of the Act of 2003 apply to those Member States of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Framework Decision of 13 th June, 2002 on the European arrest warrant and the surrender procedures between Member States ("the Framework Decision"). I am satisfied that by the European Arrest Warrant Act 2003 (Designated Member States) (No. 3) Order, 2004 ( S.I. 206 of 2004), the Minister for Foreign Affairs has designated Poland as a Member State for the purposes of the Act of 2003.
13. Under the provisions of s. 16 (1) of the Act of 2003 the High Court, may make an order directing that the person be surrendered to the issuing state provided that:
a) the High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,
b) the EAW, or a true copy thereof, has been endorsed in accordance with s. 13 for execution,
c) the EAW states, where appropriate, the matters required by section 45,
d) the High Court is not required, under sections 21 A, 22, 23 or 24 of the Act of 2003 as amended to refuse surrender,
a e) the surrender is not prohibited by Part 3 of the Act of 2003.
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