Minister for Justice and Equality v P.K.
 IEHC 180
THE HIGH COURT
Record No. 2015/93 EXT
International law – Extradition – The European Arrest Warrant Act 2003 – Doli incapax – Complainant delay – Administrative delay – Private versus public interests
This is an application for the surrender of the respondent to the United Kingdom pursuant to the provisions of s. 16 of the European Arrest Warrant Act 2003 (‘the Act’). The warrant in question was issued by District Judge Andrew Shaw of the Liverpool Magistrates Court on 21st May, 2015. The warrant was endorsed for execution by the High Court on 9th June, 2015 and was executed on 23rd September, 2015, when the respondent was arrested by Garda Peter Egan at Tallaght Garda Station, Dublin. On that date, he was brought before the High Court and was released on bail. The respondent lodged points of objection to his surrender on 2nd November, 2015, followed by supplemental points of objection on 7th December, 2015. The application for surrender and the objections hereto came on for hearing on 4th February, 2016.
The arrest warrant is expressed to be based on a warrant of arrest at first instance dated 19th December, 2014, issued at Liverpool Magistrates Court for two offences of indecent assault. It recites that the maximum length of the custodial sentence or detention order which may be imposed for these offences is ten years imprisonment as the victim was under 13 years of age. The complainant in the case was born on 3rd January, 1988 and alleges that in 1994, when she was six years old, she was sexually assaulted on two occasions by the respondent, who is her stepbrother and was then aged approximately 14. It is recited that at that time they both lived at an address on Merseyside. The warrant gives descriptions of the alleged indecent assaults, details of which appear below. It is also recited that the respondent travelled to Liverpool voluntarily and presented himself for interview under caution by Merseyside Police on 1st August, 2013, when he provided an account in response to the allegations that were put to him. Both allegations were denied by the respondent, and his police interview contained certain factual assertions relating to the family situation of the complainant and the respondent, and to the conduct of his father, who was also the stepfather of the complainant.
The warrant also offers other information relevant to the delay in time between the commission of the alleged offences in 1994 and the time that the complaint was made to Merseyside Police in 2011. It asserts that the complainant did not make a complaint until she had a daughter of her own, that she had alleged that her stepfather (since deceased) had also sexually abused her, and that she was concerned for the safety of her daughter. The warrant also explained the delay between the making of the complaint and the decision to charge the respondent as being due to difficulties by the police in locating K, and that ‘Significant delay occurred when the prosecution sought to obtain any identification means, by way of a passport photograph, however this failed.’ It also notes that there are no time limits under the law of England and Wales in relation to the prosecution of such alleged offences.
By letter dated 10th December, 2015, the applicant acting as central authority for the European Arrest Warrant in this jurisdiction wrote to the relevant agency in the United Kingdom seeking confirmation that the alleged offences were committed after 15th April, 1994. By letter of reply dated 11th December, 2015, the Senior Crown Prosecutor for Merseyside replied as follows:-
‘The victim has said she was aged 6 at the time of the offences, her date of birth is 3/1/88. She has not been able to be more specific and I am, therefore, unable to confirm that the offences took place after PK's birthday on 15/4/94 when he was 14.’
By a memo communicated by e-mail to the applicant on 11th December, 2015, an officer of the Fugitives Unit of the United Kingdom National Crime Agency further confirmed as follows:-
‘Furthermore, in relation the below the CPS have informed me that there was a statement from the grandmother asserting that K returned to Ireland for a relative's funeral on 07/06/1995. Therefore, the offences would have occurred prior to that date which may have been before K's birthday.’
The initial points of objection lodged by the respondent pleaded that his surrender was prohibited by s. 37 of the Act on the basis that it would breach his constitutional rights to fair procedures and the enjoyment of his family life (under Article 41 of the Constitution and/or Article 8 of the European Convention on Human Rights). In the circumstances, it was asserted that his surrender would be an unjust and disproportionate interference in his family life. In support of that plea, the respondent has lodged uncontradicted evidence on affidavit to the effect that he has lived most of his life in Dublin and is currently working and residing in this area. He is also in a full time relationship, and has a number of children arising out of this and other relationships, and he contributes actively, both financially and otherwise, to the welfare and lives of his partner and various children. There are references to particular requirements and needs arising in relation to a number of these children.
The supplemental point of objection delivered by the respondent asserts that his surrender is prohibited by the provisions of s. 43 of the Act, on the basis that if the alleged assaults occurred prior to 15th April, 1994, then the respondent would then have been presumed not to have reached the age of discretion and therefore not to have criminal capacity in relation to the alleged indecent assaults.
It was not argued that the applicant has failed to demonstrate compliance with the any of normal and usual requirements for surrender, save for the two specific objections argued at the hearing of this application. I propose to deal with these objections in the reverse order to that in which they were lodged.
Section 43 of the Act provides as follows:-
‘A person shall not be surrendered under this Act if the offence specified in the European arrest warrant issued in respect of him or her corresponds to an offence under the law of the State in respect of which a person of the same age as the person in respect of whom the European arrest warrant was issued could not be proceeded against by reason of his or her age.’
For the purposes of dealing with this objection, I have made the assumptions most favourable to the respondent arising out of the contents of the warrant and further information referred to above. The alleged victim would have been aged 6 between 3rd January, 1994 and the 3rd January, 1995. The respondent turned 14 on 15th April, 1994, and the respondent appears to have left Merseyside for Ireland in June 1995. The analysis required by the terms of s. 43 seems to centre on whether there would be any bar to proceeding against the respondent in this State relating to his age at the time of the commission of the alleged offences. Consequently, the parties in this case have agreed that so far as capacity issues are concerned, the situation of the applicant must be judged by reference to provisions of domestic criminal law applicable to this situation in 1994.
Whilst the current position regarding the criminal responsibility of a child is now governed by s. 52 of the Children Act 2001, in 1994 this issue was governed by the common law doctrine of doli incapax. This doctrine comprised of a conclusive presumption that a child under seven years of age was incapable of committing a crime, together with a rebuttable presumption that a child between 7 and 14 years of age was similarly incapable. The effect of the latter presumption was the creation of a very strong presumption of innocence for a child between the ages of 7 and 14, which was not displaced merely by the production of evidence of the external element of the crime. Possession of the necessary capacity was not equated solely with the mental element of the relevant offence, nor was the presence thereof automatically proved by the conduct constituting the offence charged. Proof of an extra specific element was required in order to defeat the presumption. It was incumbent upon the prosecution to rebut this presumption at the outset of a case, by evidence showing that the child knew that the conduct was gravely or seriously wrong, as opposed to being merely naughty or mischievous.
According to the doctrine of doli incapax, if either of the alleged offences occurred after the date of the respondent's 14th birthday on 14th April, 1994, then this issue would not arise for consideration at all. However, on the basis of the dates referred to above, it is, at least equally possible that the alleged offending might have occurred between the alleged injured party's 6th birthday on 3rd January, 1994 and the date of the respondent's birthday in April of that year. As fairness to the respondent dictates that I take the view most favourable to the his position, I will assume for the purposes of this argument that if the alleged offending took place, it did so during a period when the respondent was entitled to the benefit...
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