Minister for Justice and Equality v Jason Patrick Buckley

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 28 May 2014
• Neutral Citation: [2014] IEHC 321
• Court: High Court
• Date: 28 May 2014

[2014] IEHC 321

THE HIGH COURT

[No. 206 EXT./2013]

Min for Justice v Buckley

No Redaction Needed

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003 AS AMENDED

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

JASON PATRICK BUCKLEY

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EXPLOSIVE SUBSTANCES ACT 1883 S3(1)(A)

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

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(i)

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

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

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004 SCHED

POLICE & CRIMINAL EVIDENCE ACT 1984 S74 (UK)

POLICE & CRIMINAL EVIDENCE ACT 1984 S75 (UK)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)(D)

BARBERA & ORS v SPAIN 1989 11 EHRR 360 1988 ECHR 25

PAPAGEORGIOU v GREECE UNREP ECHR 22.10.1997 1997 ECHR 86

ELLIS v O'DEA & DISTRICT JUSTICE SHIELDS 1989 IR 530

BORGES v FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL & MEDICAL COUNCIL 2004 1 IR 103 2004 2 ILRM 81 2004/5/962 2004 IESC 9

MIN FOR JUSTICE v SHANNON UNREP EDWARDS 15.2.2012 2012/28/8071 2012 IEHC 91

POLICE & CRIMINAL EVIDENCE ACT 1984 S78 (UK)

EUROPEAN ARREST WARRANT ACT 2003 S4A

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

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30

EUROPEAN ARREST WARRANT ACT 2003 S37

NEVIN & LAVELLE v NEVIN 2013 2 ILRM 427 2013/39/11442 2013 IEHC 80

AL-KHAWAJA & TAHERY v UNITED KINGDOM 2009 49 EHRR 1 26 BHRC 249 2009 CRIM LR 352 2009 AER (D) 132 (JAN) 2009 ECHR 110

CRIMINAL JUSTICE ACT 2003 (UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

LUCA v ITALY 2003 36 EHRR 46

MIN FOR JUSTICE v NOLAN UNREP EDWARDS 24.5.2012 2012/27/7892 2012 IEHC 249

MIN FOR JUSTICE v T (JA) UNREP EDWARDS 9.5.2014 2014 IEHC 320

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1

CRIMINAL PROCEDURE ACT 2010 S33

DPP v FERRIS 2008 1 IR 1 2002/9/2061

AG, PEOPLE v BOND 1966 IR 214

NOTTINGHAMSHIRE CO COUNCIL v B (K) & B (K) 2012 2 ILRM 170 2013/40/11598 2011 IESC 48

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

Criminal Law – Conspiracy to Cause Explosions - Practice and procedure – Admissibility of Evidence - s. 13, s. 16 and s. 37(1)(a) and (b) of the European Arrest Warrant Act 2003– s. 3(1)(a) of the Explosive Substances Act 1883 – ss. 74 and 75 of the Police and Criminal Evidence Act 1984 – Article 6(3)(d) of the European Convention of Human Rights – Article 38.1 of the Constitution of Ireland

Facts: The United Kingdom of Great Britain and Northern Ireland (‘the United Kingdom’) issued a European Arrest Warrant to prosecute the respondent for conspiring to cause explosions contrary to s. 3(1)(a) of the Explosive Substances Act 1883. The warrant was executed in the High Court pursuant to s. 13 of the European Arrest Warrant Act 2003 (‘2003 Act’). The respondent did not consent to being surrendered to the United Kingdom. The applicant sought an order pursuant to s. 16 of the 2003 Act for the respondent to be surrendered to such person as is duly authorised by the issuing state to receive him. The respondent objected to his surrender on the basis that the prosecution would be able to use ss. 74 and 75 of the United Kingdom”s Police and Criminal Evidence Act 1984 (PACE) (‘1984 Act’) to admit evidence of the co-conspirators convictions at trial. The respondent contended that this type of evidence would be inadmissible or fall foul of the fair procedures guaranteed by the Irish Constitution.

The respondent objected to his surrender by relying upon s. 37(1)(a) and (b) of the 2003 Act in conjunction with Article 6 of the European Convention on Human Rights (‘the Convention’) and Article 38.1 of the Constitution of Ireland. Section 37(1)(a) of and (b) of the 2003 Act stipulates that a person will not be surrendered if it is incompatible with the State”s obligations under the Convention or if his or her surrender is in contravention of any constitutional provision. Article 6(3)(d) affords anyone charged with a criminal offence the right to cross-examine witnesses. The Respondent argued that if he were surrendered to the United Kingdom he would be denied this Convention right thus depriving him of the ability to participate effectively in his trial proceedings. The Respondent also said that the Prosecution would attempt to infer he was guilty by admitting into evidence that another person had been convicted of the same offence. The Respondent submitted that this would violate the presumption of innocence and the right to defend oneself. Counsel for the respondent said this would also be inconsistent with the notion of fair procedures under Article 38.1 of the Irish Constitution.

The applicant submitted that the respondent should be surrendered because he failed to show: 1) that he was likely to be subjected to the evidential provision of which he complained; 2) that same amounted to a breach of his rights; and, 3) that he did not enjoy an adequate domestic remedy in respect of same. The applicant argued that ss. 74 and 75 of the 1984 Act would not automatically be applicable. Also, evidence adduced under these provisions would be subject to admissibility arguments where the court would have the discretion to exclude such evidence. The applicant also submitted that the respondent failed to establish that he would be deprived of the ability to participate effectively at his trial. The applicant said the respondent had not demonstrated that his rights would be breached or that he would be subjected to a flagrant denial of justice. Furthermore, despite the absence of an express statutory provision it was possible to admit evidence of an earlier conviction in Irish criminal proceedings. Finally the applicant pointed out that the respondents” arguments were mainly speculative as to what might happen at trial.

Held by Edwards J: The Court agreed with the applicant”s arguments and went on to apply the considerations set out in Minister for Justice and Equality v Nolan [2012] IEHC 249. The court said the respondents evidence as to what might happen in the United Kingdom was not so far removed from what the Irish constitution envisaged that it would prevent it from making an order for surrender. The respondent did not address the safeguards, counterbalancing measures or remedies available to an affected person under the 1984 Act for the purposes of preventing unfairness and injustice. The Court said that the respondent also failed to identify the specific constitutional rights at issue. Furthermore, the constitutional guarantee contained in Article 38.1 of the Irish constitution only operated inter-territorially not extra-territorially. The Court said there was insufficient proximity between the proposed surrender and the harm that may or may not be caused to the respondent should he face trial in the United Kingdom. The Court referring to the Nolan case also pointed out that legal systems and methods for protecting fundamental rights differ from country to country but they all have the same objective of ensuring a fair trial. For all of the reasons outlined by the court in addition to the reasons put forward by the applicant, the Court did not uphold the s. 37(1)(b) objection. For similar reasons outlined above the court did not uphold the s. 37(1)(a) objection either. The Court was not satisfied that the respondents Article 6 rights would be breached and therefore made an order pursuant to s. 16(1) of the 2003 Act to surrender the respondent to the United Kingdom.

1 JUDGMENT of Mr. Justice Edwards delivered on the 28th day of May, 2014

Introduction

2 The respondent is the subject of a European arrest warrant dated 12 ^th August, 2013, issued by a competent judicial authority in the United Kingdom of Great Britain and Northern Ireland ("the United Kingdom") which seeks the rendition of the respondent for the purpose of prosecuting him for the single offence of Conspiracy to Cause Explosions, as particularised in part (e) of the warrant. The warrant was endorsed for execution in this jurisdiction by the High Court on 15 ^th August, 2013. The respondent was arrested in execution of the warrant on 4 ^th September, 2013, by Sergeant Sean Fallon and was brought before the High Court on the same day pursuant to s.13 of the European Arrest Warrant Act 2003 ("the Act of 2003"). In the course of the s.13 hearing, a notional date was fixed for the purposes of s.16 of the Act of 2003 and the respondent was remanded on bail to the fixed date. Thereafter, the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.

3 The respondent does not consent to his surrender to the United Kingdom. Accordingly, this Court is now being asked by the applicant to make an order, pursuant to s.16 of the Act of 2003, directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of s.16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependent upon a judicial finding that they have been so satisfied.

Uncontroversial s.16...