Min for Justice v Connolly

JurisdictionIreland
JudgeMr. Justice Fennelly,Mr. Justice William M. McKechnie.
Judgment Date01 May 2014
Neutral Citation[2014] IESC 34
CourtSupreme Court
Docket Number[S.C. No. 17 of 2013]
Date01 May 2014
Min for Justice v Connolly

BETWEEN:

THE COUNTY COUNCIL FOR THE COUNTY OF LAOIS
Applicant/Respondent on the Appeal

- and -

NOEL HANRAHAN, GERALDINE HANRAHAN AND COLM HANRAHAN
Respondents/Third Named Respondent as Appellant on the Appeal
Applicant/Respondent

And

Respondents/Appellant (Third Named)

[2014] IESC 34

Fennelly J.

McKechnie J.

Laffoy J.

Record No. 411 No. 2013
[S.C. No. 411 of 2013]

THE SUPREME COURT

European arrest warrant - Order for delivery - Appeal to Supreme Court - Alleged vagueness and lack of specificity of offences for which delivery sought - Breach of requirements under s.11 European Arrest Warrant Act 2003- Whether point of law of exceptional public importance

Facts: The Spanish authorities sought prosecution of an Irish individual and issued of an arrest warrant for Michael Martin Connolly based on an alleged offence of endangerment of public health, as set out in Articles 368 and 369 of the Spanish Penal Code. The Minister for Justice and Equality pursued an appeal against the judgment and order of the High Court whereby Mr Connolly"s delivery to Spain on foot of the European Arrest Warrant (EAW) was refused. Mr Connolly contended the EAW was deficient in that it did not contain a clear or satisfactory statement of the offence or offences for which delivery was sought. The Minister"s response to this argument was that the Court had no power to entertain it at all as it was not a point certified by the High Court as being a point of law of exceptional public importance. The Minister relied upon section 16 of the European Arrest Warrant Act 2003 - "An appeal against an order under this section... may be brought in the Supreme Court if, and only if, the High Court certifies that the order involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court." It was confirmed that s.16 had been satisfied. The decision of the High Court had been certified to involve a point of law of exceptional public importance, thus it was desirable in the public interest that an appeal be taken to the Supreme Court.

Held: The judge considered Talbot v. An Bord Pleanála and Ors [2009] 1 IR 375 and section 11 of the European Arrest Warrant Act 2003. He subsequently concluded that the warrant issued by Spanish authorities failed to comply with the provisions of s.11 of the 2003 Act and was therefore defective. He acknowledged, taking into consideration Minister for Justice Equality and Law Reform v. Stafford [2009] IESC 83 that it is absolutely essential that the offence or offences for which a person is sought are specified within a warrant. The judge criticised the drafting of the EAW and the filling in of various parts of the form constituting it. The judge stressed it was a mandatory requirement of the EAW procedure that there be unambiguous clarity about the number and nature of the offences for which a person sought is so sought.

He stated "It is an imperative duty of a court asked to order the compulsory delivery of a person for trial outside the State to ensure that it is affirmatively and unambiguously aware of the nature of the offences for which it is asked to have him forcibly delivered, and for which he may be tried abroad, and of the number of such offences".

-Appeal dismissed. Judge declined to make an order for the delivery of the respondent.

CONSTITUTION ART 34.4.3

PEOPLE (AG) v CONMEY 1975 IR 341

EUROPEAN ARREST WARRANT ACT 2003 S16(12)

CRIMINAL JUSTICE (MISC PROVISIONS) ACT 2009 S12(F)

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMENDMENT) ACT 2012 S10

EUROPEAN ARREST WARRANT ACT 2003 S16(11)

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302

RSC O.58 r10

EUROPEAN ARREST WARRANT ACT 2003 S11

EUROPEAN ARREST WARRANT ACT 2003 S2(A)

FARRELL & HANRAHAN THE EUROPEAN ARREST WARRANT IN IRELAND 2011

TALBOT v AN BORD PLEANALA & ORS 2009 1 IR 375

PLANNING & DEVELOPMENT ACT 2000 S50(4)(F)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S14

RSC 0.58 r8

MIN FOR JUSTICE v R (SM) 2008 2 IR 242

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 ART 8

EUROPEAN ARREST WARRANT ACT 2003 S11(1)(A)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S72

CRIMINAL JUSTICE (MISC PROVISIONS) ACT 2009 S7

MIN FOR JUSTICE v STAFFORD UNREP SUPREME 17.12.2009 2009/39/9807 2009 IESC 83

MIN FOR JUSTICE v CAHILL UNREP EDWARDS 19.7.2012 2012/26/7530 2012 IEHC 315

EUROPEAN ARREST WARRANT ACT 2003 S11(2)(A)

MIN FOR JUSTICE v BAILEY 2012 4 IR 1

1

JUDGMENT of Mr. Justice Fennelly delivered the 14th day of March, 2014.

2

Judgment delivered the 14th day of March, 2014 by Mr. Justice William M. McKechnie.

3

Judgment delivered by Fennelly J & McKechnie J

4

1. The appellant, Mr Colm Hanrahan, is appealing against a High Court order committing him to prison for contempt of court in failing to obey a High Court order requiring him to remove large volumes of polluting waste from his parents' family farm in County Laois. This judgment concerns the appeal of the appellant, against a High Court judgment committing him to prison for contempt of court.

5

2. The order (hereinafter "the contempt order") was made on 17 th September 2013 by Hedigan J. It concerned the appellant's contempt of an order (hereinafter "the original order") made by Hedigan J on 24 th May 2012 pursuant to s. 58 of the Waste Management Act, 1996. That order required all three of the above named respondents to discontinue holding, recovery or disposal of waste on lands in Folio 1905 County Laois and to remedy the effects of depositing of waste which had already taken place. All this was to be done in accordance with the schedule to the order.

6

3. The lands involved consist of a farmyard and surrounding lands, registered in Folio 1905 of the Register, County Laois. They are at Graigueadrisly, Rathdowney, Co. Laois. The registered owners of the lands were, at the date of the making of the order, the first two respondents. The appellant is their son. The first-named respondent has sadly died since the commencement of the proceedings. The appellant had a lease of the lands for a term of seven years from 1 st October 2007, though he claims that a family dispute prevented him from occupying them from 2009 up to the date of his father's death in May 2013.

7

4. On 6 th April 2011 Laois County Council (hereinafter "the Council"), the applicant and the respondent to the appeal, received an anonymous complaint to the effect that illegal disposal of waste was taking place in an old quarry on the lands. Officers of the Council discovered, on inspection, when they entered the farmyard, that there was a strong, foul smell consistent with waste disposal on an adjacent site. There were tractor tracks leading from the yard into the surrounding lands. Waste materials had been deposited on an extensive area of approximately one acre at the top of a field which was approximately 150 yards from the farmyard. The waste comprised: (a) an area of domestic, processed waste; (b) an area of mixed waste including construction and demolition waste, waste wood plastic and metal; (c) windblown litter over the site and field generally.

8

5. The appellant, when contacted by telephone by the Council, said that he had leased the site from his father, but that he had separated from his wife and was no longer residing there. He said that he had entered into an agreement with another named person for use of the site as a quarry and for the removal of sand. An attempt was made to arrange a meeting with this other person but he failed to attend.

9

6. Further examination disclosed that the deposited waste ranged up to a depth of 2 metres. A foul smell emanated from a number of trial pits. The Council commissioned a report from OCM Environmental Consultants. They excavated 21 trial pits. They collected six waste and topsoil samples for analysis. Some of the principal findings were as follows.

10

7. The site is a former sand and gravel pit covering an area of approximately 0.95 hectares. It is in an agricultural area predominantly used for animal grazing. The waste was deposited over approximately 0.4 hectares. The sub-soil is comprised predominantly of sands and gravels, which have a high permeability. Overgrown areas appeared to have been cleared in advance of the deposit of waste. The waste was not covered, was warm to touch and had a very strong odour, consistent with that of municipal solid waste. Its average depth was 1.15 m. The waste comprised predominantly shredded plastic, generally uniform size and originally bottles, food containers, toothbrushes and minor amounts of organic waste. It was consistent with being Municipal Solid Waste that had undergone processing. Following scientific testing, the report reached the conclusion that the waste was not inactive and that it had the potential to generate a polluting leachate that is stronger than that produced in a non-hazardous waste landfill. If left in place it has the potential to migrate to the groundwater system and cause significant pollution and possibly impact on down gradient receptors. The site was assigned a Moderate risk rating. The primary risk was considered to be to the underlying aquifer, assumed, according to the report, to be a regionally important karst aquifer.

11

8. The likely a volume of the waste was assessed as being from 960 to 1840 tonnes. The report recommended that, in order to eliminate the risk to groundwater, the waste should be excavated as soon as possible and disposed of at a suitably licenced facility.

12

9. By Notice of Motion date 17 th November 2011, the Council applied to the High Court for orders against all three respondents requiring them to discontinue the...

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