Min for Justice v Stapleton

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 23 November 2005
• Neutral Citation: [2005] IEHC 386
• Court: High Court
• Docket Number: Record Number:No. 39 Ext/2005
• Date: 23 November 2005

[2005] IEHC 386

THE HIGH COURT

Record Number:No. 39 Ext/2005

MIN FOR JUSTICE v STAPLETON

Between:

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

And

Robert Francis Stapleton

Respondent/Applicant

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

RSC O.31 r12(4)

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 PART III

EUROPEAN ARREST WARRANT ACT 2003 S37

EUROPEAN ARREST WARRANT ACT 2003 S40

PRACTICE AND PROCEDURE:

discovery

Extradition - European arrest warrant - Documents relating to arrests in 1985 and 2005 - Whether fear of inhuman and degrading treatment if extradited - Whether necessary to prove claim of delay - Whether documents relevant to issue of surrender - Whether fishing expedition - European Arrest Warrant Act 2003 (No 45), ss 16, 37 and 40 - Rules of the Superior Courts 1986 (SI 15/1986), O 31 r 12(4) - Application for discovery refused (2005/39EXT - Peart - 23/11/2005) [2005] IEHC 386

MIN FOR JUSTICE v STAPLETON

Facts: The surrender of the respondent was sought by the UK authorities so that he could face trial on indictment in respect of thirty offences, all of which could be loosely characterised as fraud charges. The respondent sought discovery of documents.

Held by Peart J. in refusing the application for discovery that while the documentation might be relevant, the respondent had not established any basis for submitting that it was necessary.

Reporter: R.W.

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent (the applicant in the present motion for discovery) is sought by the UK authorities so that he can face trial on indictment in respect of thirty offences, all of which can be loosely categorised as fraud charges. The dates on which these offences are alleged to have been committed are between 20th May 1978 and 30th September 1982. The company involved went into liquidation in 1983. The amount alleged to be involved is in the order of Stg. £3 million.

2 It appears that by the time an investigation had been commenced by the authorities in 1985 the respondent and his wife had already left that jurisdiction in 1984 and gone to reside in Spain, where, it is averred, they lived openly and within the knowledge of their bankers, their auditors, and their friends.

3 The applicant would contend that the purpose of the family going to Spain was because there were at that time no extradition arrangements in place between Spain and the UK, but the respondent has averred that the reason for the change of residence was because of a serious ailment from which his son was suffering and for which a warm climate was thought to be beneficial.

4 It is a fact also that the respondent's wife, when on a visit from Spain to the UK at the end of November 1985 was arrested by the UK police and was charged with an offence arising out of the same background as the charges now sought to be prosecuted against her husband. It appears that for a time at least his wife was held as a "Category A" prisoner û a category which he states is reserved for "violent, dangerous or suspected terrorist detainees" - which the respondent herein says resulted in her being subjected to inhuman and degrading treatment. That has relevance to some of the documentation sought in the present application. There is no affidavit from the respondent's wife in this regard.

5 It appears also that in December 1986 the respondent's wife was convicted of the offence with which she was charged and received a suspended sentence of 18 months imprisonment. The respondent did not return to England for his wife's trial, and he states in that regard that his concern and that of his wife was that if they were both detained in custody, there would have been a substantial risk that their children would have been taken into care. He says that he was never a fugitive since no charges were ever preferred against him prior to his departure to Spain, and he states also that no warrant was ever issued for his arrest until that alleged to have issued on the 14th January 2004, and on foot of which a European Arrest Warrant issued dated 20th July 2005. He points to the fact that the domestic warrant issued some twenty eight years after the earliest of the offences charged.

6 In 1990 the respondent states that the family moved to Madrid from Valencia where they had been living, and they ultimately decided to move to Montpellier in France because they had been assured that research hospitals there were "amongst the finest in Europe" since his son's health had continued to deteriorate according to his affidavit. Again he states that they continued to live openly in France under their own names until December 1994 where they again lived openly. Following his return to Ireland he states that he collected Social Welfare benefits, set up two businesses and made appropriate returns and he says that the UK authorities could as easily in 1994 have located him here as they did in 2005.

7 The respondent has filed Points of Objection, as he is entitled to do, under the Rules of Court pertaining to applications for surrender under the European Arrest Warrant Act2003, as amended. In fact following the filing of Points of Objection, amended Points of Objection were filed on the 24th October 2005. A number of issues are raised therein, but for the purpose of this application by the respondent for discovery of documents, three Points are relevant û namely (1) that the surrender of the respondent would be incompatible with this State's obligations under the European Convention of Rights and Fundamental Freedoms and the Protocols and in particular the prohibition on inhuman and degrading treatment or punishment under Article 3 thereof; (2) the right to fair trial under Article 6 thereof; and (3) that by reason of the passage of time from the date of commission of the alleged offences he could not be proceeded against in this State if they had been committed here.

8 There are other Points of Objection to which it is unnecessary to refer for present purposes.

9 By letter dated 12th October 2005 the respondent's solicitor wrote to the Chief State Solicitor as required by O. 31, r.12(4) RSC seeking voluntary discovery of a number of documents which are set forth with the necessary particularity therein both as to the nature of same and as to the reason for their necessity. The documents sought are as follows:

10 1. The Transcript of the respondent's bail application here following his arrest pursuant to the European arrest warrant. The respondent states that this document is required "to assist in determining the basis for the delay in seeking the arrest of [the respondent]".

11 2. The transcript of the trial of the respondent's wife in the UK to which I have referred. The respondent states that this document is necessary to show that certain evidence was excluded at his wife's trial and to which he has referred in paragraph 13 of his grounding affidavit, being the evidence of three named witnesses from the UK Export Credit Guarantee Department and Lloyd's Bank respectively, and that therefore the same evidence is likely to be excluded from his trial if surrendered and that this would result in an unfair trial.

12 3. The transcript of evidence from his wife's Committal hearing in 1985 at which the witnesses referred to in (2) above gave evidence. He states that this transcript will "demonstrate the unlawful and improper exclusion of that testimony from [his wife's] trial, the recurrence of which at his trial will be a breach of his entitlement to a fair trial.

13 4. All documentation concerning communications between the Lincolnshire Constabulary and the Lincoln Echo newspaper concerning the respondent's whereabouts at any time between 1985 to date. He states that these are necessary in relation to the establishment of delay.

14 5. All communications between any United Kingdom Police Authority and HM Prison Service "to confirm who took the decision to treat [his wife] as a Category A prisoner. This is stated to be necessary to ground the claim that the respondent will would be likely to be subjected to inhuman and degrading treatment if surrendered.

15 6. All communications between the United Kingdom Police Authorities and the Crown Prosecution Service to confirm who took the decision to oppose bail for his wife, and this is stated to be necessary for...