Min for Justice v Szall

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 15 February 2013
• Neutral Citation: [2013] IESC 7
• Court: Supreme Court
• Docket Number: [S.C. No. 108 of 2012]
• Date: 15 February 2013

Min for Justice v Szall

In the Matter of the European Arrest Warrant Act, 2003 as amended

Between/

The Minister for Justice, Equality and Law Reform

Applicant

and

Robert Szall

Respondent

[2013] IESC 7

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Clarke J.

[Appeal No: 108/2012]

THE SUPREME COURT

CRIMINAL LAW

Extradition

European arrest warrant - Correspondence - Surrender - Correspondence between offences - Acts specified in offence - Correspondence where compliance with or breach of Irish statutory scheme an ingredient of offence - Whether foreign offence corresponding with offence under Irish law - Attorney General v Dyer [2004] IESC 1, [2004] 1 IR 40; [2004] 1 ILRM 542; Collins, In re (No 3) (1905)10 CCC 80; Minister for Justice v Altaravicius [2006] IESC 23, [2006] 3 IR 148; Minister for Justice v Brennan [2007] IESC 21, [2007] 3 IR 732; [2007] ILRM 241; Minister for Justice v Szall [2012] IEHC 64, (Unrep, Edwards J, 17/2/2012); Norris v Government of the United States of America [2008] UKHL 16, [2008] 1 AC 920; [2008] 2 WLR 673; R (Al-Fawwaz) v Brixton Prison Governor [2001] UKHL 69, [2002] 1 AC 556; [2002] WLR 101; Riley v The Commonwealth of Australia (1985) 159 CLR 1 and The State (Furlong) v Kelly [1971] IR 132 considered - European Arrest Warrant Act 2003 (No 45), s 5 - Framework Decision (2002/584/JHA), Article 2(4) - Criminal Justice Act 1960 (No27), s 6(1) and (2) - Appeal admitted and matter remitted for further consideration (108/2012 - SC - 15/11/2013) [2013] IESC 7

Minister for Justice, Equality and Law Reform v Szall

Facts: The respondent was the subject of a European arrest warrant that was issued by Poland on the 21st April 2009 due to six offences he had allegedly committed. He refused to surrender to Polish authorities and so the applicant brought the matter before the court seeking an order to that effect pursuant to s. 16 of the European Arrest Warrant Act 2003 ('the 2003 Act'). Before the High Court on the 17 ^th February 2012, it was held that the respondent could not be surrendered as there was a lack of correspondence between Polish and Irish law in relation to the sixth offence which was translated and stated that the respondent had illegally failed to return to prison detention 'after a break in carrying out a penalty, granted by the Provincial Court'. Whilst it was accepted that the other five offences had the relevant correspondence, the composite nature of the sentence in relation to the six offences meant that the European arrest warrant could not be activated unless the court was satisfied there was requisite correspondence throughout.

The appellant appealed the decision. It was the Minister"s contention that there was sufficient correspondence between the sixth offence and section 6(2) of the Criminal Justice Act, 1960 which states that "who is unlawfully at large shall be guilty of an offence under this section and on summary conviction thereof shall be liable to imprisonment for a term not exceeding six months'. Someone who is 'unlawfully at large' is defined in the section as someone who has been temporarily released from detention but has failed to return before the period for which he was released has expired or if a condition of the release has been broken.

Held by Clarke J (with Denham C.J., Murray J., Hardiman J., and Fennelly J. concurring) that section 6(2) of the Criminal Justice Act, 1960 was an example of an offence where it is a breach or failure to comply with a statutory regime and where the activity itself is not in itself illegal but becomes a crime in the circumstances when some form of statutory permission is required. In this case, s. 6(2) concerned the breach of another Irish statutory provision, namely the temporary release of someone from detention. In determining whether there is correspondence between an Irish offence and that of another country and where that offence is a breach or failure to comply with a statutory regime, it would be extremely unlikely that the foreign offence would be making reference to an Irish statutory provision. It would therefore be very difficult to find strict correspondence between offences of that type. The correct approach was therefore to consider whether there was sufficient correspondence between the statutory regimes of the countries averred to in the offence. If this was held to be the case, the correspondence of the offences could then be considered.

Taking that approach in the present case, it was held that s. 6(2) of the Criminal Justice Act, 1960 and the sixth offence in the European arrest warrant both concerned the scenario where a person who was lawfully detained was temporarily released from custody but had caused an offence by not returning before the expiration of the temporary release. There was therefore sufficient correspondence and the appeal was allowed. There was one final matter that was not heard in the High Court due to the conclusion the court had reached. The case was therefore remitted to the High Court for its consideration.

Appeal allowed.

EUROPEAN ARREST WARRANT ACT 2003 S16(11)

EUROPEAN ARREST WARRANT ACT 2003 S5

CRIMINAL JUSTICE ACT 1960 S6(2)

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 242(3)

CRIMINAL JUSTICE ACT 1960 S6(1)

CRIMINAL JUSTICE ACT 1960 S6

CRIMINAL JUSTICE ACT 1960 S6(1)(A)

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 242

CRIMINAL CODE OF THE REPUBLIC OF POLAND ART 242(2)

MIN FOR JUSTICE v SZALL UNREP EDWARDS 17.2.2012 2012/28/8159 2012 IEHC 64

NORRIS v GOVT OF THE UNITED STATES OF AMERICA 2008 1 AC 920 2008 2 WLR 673 2008 2 AER 1103

EXTRADITION ACT 2003 S137 (UK)

R (AL-FAWWAZ) v GOVERNOR OF BRIXTON PRISON 2002 1 AC 556 2002 2 WLR 101

COLLINS (NO 3), IN RE 1905 10 CCC 80

RILEY v COMMONWEALTH OF AUSTRALIA & ORS 159 CLR 1 1985 HCA 82

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(4)

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148 2006/39/8296 2006 IESC 23

MIN FOR JUSTICE v BRENNAN 2007 IR 3 732 2007/40/8282 2007 IESC 21

AG v DYER 2004 1 IR 40 2004 1 ILRM 542 2004/3/491 2004 IESC 1

FURLONG, STATE v KELLY & AG 1971 IR 132

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2

CRIMINAL JUSTICE ACT 1960 S6(1)(B)

CRIMINAL JUSTICE ACT 1960 S2

CRIMINAL JUSTICE ACT 1960 S3

1 Judgment of Mr. Justice Clarke delivered the 15th February, 2013,.

2 Judgment Delivered By Clarke [Nem diss]

1. Introduction

3 2 1.1 One of the questions which often arises in the context of extradition law generally is the issue of the correspondence of the offence in respect of which extradition is sought with a like offence in the jurisdiction to which the extradition request is directed. This case concerns just such an issue.

4 3 1.2 The respondent ("Mr. Szall") is sought by the authorities in Poland. In a judgment delivered on the 17 ^th February, 2012, Edwards J. refused to order the surrender of Mr. Szall to the Republic of Poland on foot of a European arrest Warrant ("EAW") issued on the 21 ^st April, 2009. The applicant/appellant ("The Minister") wished to appeal to this Court against that refusal. It was, of course, pursuant to s. 16(11) of the European Arrest Warrant Act 2003 (as amended), necessary for the Minister to obtain a certificate in accordance with that section in order to bring an appeal to this Court.

5 4 1.3 On the 9 ^th March, 2012, Edwards J. certified that his order of the 17 ^th February involved two points of law of exceptional public importance in respect of which it was desirable in the public interest that an appeal should be taken to this Court. The two points as so certified were as follows:-

6 (i) where compliance with, or breach of, a statutory provision is an ingredient of an offence in the State, is that offence capable of amounting to a corresponding offence for the purposes of Section 5 European Arrest Warrant 2003 (as amended)?

7 (ii) Is Section 6(2), Criminal Justice Act, 1960 capable of being a corresponding offence for the purposes of Section 5 European Arrest Warrant Act 2003 (as amended)?

8 5 1.4 So far as this appeal is concerned the only issues between the parties, therefore, now concern questions arising out of whether there is correspondence between relevant Polish and Irish offences. To more fully understand the precise issues which arise under that heading it is next necessary to turn to the offence specified in the EAW and what is said to be the corresponding Irish offence.

2. The Polish and Irish Offences

9 2 2.1 It should first be noted that the EAW involves six offences. The offences are numbered in roman numerals. Edwards J. found no difficulty in finding correspondence between the offences specified at I to V inclusive. No continuing issue arises in respect of those offences. It was, however, in respect of the offence at VI that Edwards J. found a lack of correspondence.

10 3 2.2 In that context it should be noted that one single sentence was imposed by the relevant court in Poland in respect of all six offences. It was accepted on behalf of the Minister, therefore, at all material times, that it followed that Mr. Szall could only be surrendered in the event that there was correspondence in respect of all six offences, for in the event that there was a lack of correspondence in respect of any one offence, and having regard to the composite sentence imposed in respect of all six offences, a surrender of Mr. Szall would amount to a surrender for all six offences including any one or more of same in respect of which there was no correspondence. Obviously such a surrender could not be ordered. It followed that it was only necessary for Mr. Szall, because of the way in which the sentence in this case was...