Minister for Justice and Equality v Imran

 
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[2017] IEHC 245

THE HIGH COURT

Donnelly J.

Record No. 2016 No. 169 EXT

BETWEEN:
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
-AND-
MOHAMMED IMRAN
RESPONDENT

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

EX TEMPORE JUDGMENT of Ms. Justice Donnelly delivered this 14th day of March, 2017.
1

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.

2

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.

3

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.’

4

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.

5

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.

6

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.

7

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.

8

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 finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State’.

9

Section 41 of the Act of 2003 was the subject matter of a considered judgment by the High Court (Edwards J.) in the case of the Minister for Justice and Equality v. Guz [2012] IEHC 388. That judgment was delivered on 31st day of July, 2012. The offences in that case were driving offences of much less seriousness than the offences for which this respondent was convicted in the first place and is sought for prosecution in the second place. However, the facts do not differ in terms of their legal significance. The respondent in Guz had already been convicted of a drink driving offence arising out of an accident that occurred on 9th March, 2005. He was sought under an EAW for prosecution for an offence against safety in communication which was in essence a dangerous/careless driving type offence. Edwards J. reviewed the position as regards what is known in the common law...

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