Minister for Justice and Equality v Imran
 IEHC 245
THE HIGH COURT
Record No. 2016 No. 169 EXT
Extradition – S.41 of the European Arrest Warrant (EAW) Act, 2003 – Double jeopardy – Art. 3(2) of the Council (EC) Framework Decision (2002/584/JHA) – Prohibition on surrender
Facts: The surrender of the respondent was sought by the requesting state for the offence of dangerous driving causing death. The respondent argued that he had already served imprisonment of the relevant term in relation to the offence of dangerous driving in relation to the same case for which his surrender was sought. The respondent consented to his surrender so that he could deal with the matter in the requesting state. The respondent claimed that his trial was prohibited on the basis of double jeopardy in the requesting state.
Ms. Justice Donnelly refused to surrender the respondent. The Court held that the extradition of the respondent was prohibited under s. 41 of the EAW Act 2003 as the final judgment had been given in relation to the offence for which the respondent was sought in the requesting state and the respondent had served the sentence of imprisonment that was imposed upon him in relation to the commission of that offence. The Court held that art. 3 (2) of the Framework Decision provided for the mandatory non-execution of European Arrest Warrants in cases where it was found that the requested person had been finally judged by the Member State in respect of same acts provided that there had been an imposition of sentence, which had been served or being served or might no longer be executed under the law of the Member State. The Court held that art. 3 (2) applied to the cases involving double jeopardy. The Court held that the term “Member State” as appearing under art. 3 (2) included the issuing Member State. The Court held that the respondent could not be surrendered even if he had consented to his surrender.
The background to this case is quite unusual. The United Kingdom (‘U.K.’) authorities issued a European arrest warrant (‘EAW’) for the surrender of the respondent on 24th August, 2016. He is sought for prosecution for one offence of dangerous driving causing death. The respondent initially filed points of objection, but later changed his mind and sought to consent to his surrender. Despite the respondent consenting to his surrender under s. 15 of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’), the Court is precluded from ordering such surrender if it is prohibited by virtue of the provisions of s. 15 of the Act of 2003.
Under the provisions of s. 15 of the Act of 2003, surrender may only be ordered if, inter alia, the surrender of the requested person is not prohibited by Part 3 of the Act of 2003. Among the sections contained in Part 3 of the Act of 2003 is Section 41.
The relevant part of s. 41 of the Act of 2003 is subsection 1 which provides:-
‘A person shall not be surrendered under this Act for the purpose of his or her being proceeded against in the issuing state for an offence consisting of an act or omission that constitutes in whole or in part an offence in respect of which final judgment has been given in the State or a Member State.’
In the present case, the respondent has already pleaded guilty to an offence of dangerous driving and has been sentenced to and has served 21 months imprisonment in the United Kingdom. He is now being sought in respect of an offence of dangerous driving causing death arising out of the exact same circumstances for which he received the 21 month sentence of imprisonment, with the further added feature that it is now alleged that, eleven years later, the woman who was injured in that crash has died as a result of injuries received.
The respondent intends to make an argument in the U.K. that his trial is prohibited on the basis of double jeopardy. However, he states that he wishes to consent to his surrender under the EAW as much of the focus of his life is in the U.K. and he wishes to deal with this matter in that jurisdiction.
When this case first came on for hearing, the Court was not satisfied that it could simply disregard the issue of double jeopardy and the Court asked for submissions in relation to that matter. The parties requested time for written submissions and the matter was put back again. On the resumed date, having part heard the case, the Court suggested that in light of the attitude being adopted by the respondent, it might be possible to organise a voluntary return to the United Kingdom. The Court sought to know the attitude of the U.K. authorities in relation to this suggestion so as to ensure that if the procedure was put in place, the respondent could be met in the U.K. and arrested immediately.
The Crown Prosecution Service in the U.K. may have misunderstood what was at issue in the proceedings in this jurisdiction, as they replied with quite a lengthy and unnecessary statement of the facts alleged against this respondent. Contained within their statement, was their unequivocal belief that this respondent would seek to avoid arrest should his passport be returned to him. In those circumstances, the Court was of the view that it must proceed to hear the case as the Court could not be satisfied that the respondent would be available to the U.K. authorities should his passport be given back to him. The High Court, as an executing judicial authority, has a duty to ensure that a respondent is available for surrender should such surrender be ordered and it cannot dispense with bail conditions which are necessary to ensure that a respondent will turn up for the application for surrender and the surrender itself, should it be so ordered.
Section 41 of the Act of 2003 implements Article 3(2) of the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedure between Member States (‘the 2002 Framework Decision’). Article 3(2) provides for grounds for mandatory non-execution of the European arrest warrant. The executing judicial authority is required, inter alia, to refuse to execute the EAW ‘if the executing judicial authority is informed that the requested person has been...
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