Minister for Justice and Equality v S.T.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 25 April 2016
• Neutral Citation: [2016] IEHC 297
• Court: High Court
• Docket Number: [2015 No. 239 Ext]
• Date: 25 April 2016

[2016] IEHC 297

THE HIGH COURT

Donnelly J.

[2015 No. 239 Ext]

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

S.T.

RESPONDENT

International law – Extradition – The European Arrest Warrant Act, 2003 – Execution of European Arrest Warrant (EAW) – Art. 8 of the European Convention on Human Rights (ECHR) – Failure to specify offences – Right to fair trial – Rule of specialty – Fair trial – 2002 Framework Decision

Facts: The applicant sought the surrender of the respondent pursuant to the execution of the EAW by the requesting State for the purposes of prosecution of the respondent in respect of five offences. The respondent objected to his surrender on the basis of failure to specify offences as required under s. 11(1A) (f) of the Act of 2003, delay and interference with his private and family life under art. 8 of the ECHR. The respondent further contended that since the description in relation to offence number four under the EAW contained reference of multiple offences committed multiple times, there was a risk that rule of specialty might be violated.

Ms. Justice Donnelly exercised its powers under s. 20 (1) the Act of 2003 and sought further information from the issuing judicial authority in respect of each offences set out in the EAW. The Court held that delay in itself would not be prohibitive of surrender unless grave prejudice had been caused to the respondent due to that delay. The Court held that there had been no mention of family life by the respondent and even if he had some, the great public interest would favour the surrender of the respondent as he had been accused of committing heinous crimes. The Court observed that the rule of specialty would be applicable in the present case and it was clear that the respondent would be prosecuted and tried for the offences for the purposes of which his surrender was sought. The Court, however, observed that the offences under offence number four had not been specified in detail as there was no mention of dates and places of the alleged offences and lack of circumstances surrounding commission of those offences, which was contrary to the 2002 Framework Decision.

PRELIMINARY RULING of Ms. Justice Donnelly delivered the 25th day of April, 2016.

1 A European Arrest Warrant (‘EAW’) dated 27th October, 2015 has been issued by the Sheriff of Lothian and Borders at Edinburgh, a judicial authority of the United Kingdom of Great Britain and Northern Ireland (‘the UK’), seeking the surrender of the respondent in respect of five offences of unnatural carnal connection and lewd and libidinous practices contrary to common law in Scotland. The surrender of the respondent is sought for the purposes of prosecution. The alleged offences amount to what may be termed allegations of historic sexual abuse. The alleged victims are four young cousins of the respondent. The alleged offences cover periods between 1st January, 1989 and 31st December, 1998.

2 The respondent has raised a number of points of objection; these may be broken down into two areas. The first concerns a failure adequately to describe the offences in s. 11(1A)(f) of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’), as well as the implications this may have for the rule of specialty. The other point relates to the delay since these alleged offences were committed including the fact that the respondent was previously questioned by the gardaí, but not prosecuted for alleged offences against the same complainants in respect of matters occurring in Ireland, and the impact these matters have on his right to respect for his private and family life under Article 8 of the European Convention on Human Rights (‘ECHR’) and on the issue of abuse of process.

Section 16 of the Act of 2003

3 On the basis of the information contained in the EAW and the evidence of Fergus McGroary, member of An Garda Síochána, and on the evidence of the respondent in affidavit, I am satisfied that the person before the court is the person in respect of whom the EAW has issued.

4 I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution.

5 I am satisfied that I am not required to consider whether the EAW states the matters required by s. 45 of the Act of 2003 as this is a warrant for prosecution.

6 I am satisfied that I am not required under s. 21A, s. 22, s. 23 or s. 24 of the Act of 2003 to refuse to surrender the respondent.

7 Subject to further consideration of s. 37 and s. 38 of the Act of 2003, I am satisfied that the surrender of the respondent is not prohibited by any other part of Part 3 of the Act of 2003.

Section 38 of the Act of 2003

8 At the outset of the hearing, counsel for the respondent conceded that there was no issue with correspondence. Nonetheless, the Court is obliged to satisfy itself that the requirements under s. 38 of the Act of 2003 have been met. These are not list offences within the meaning of Article 2, para. 2 of the 2002 Framework Decision of 13th June, 2002 on the European Arrest Warrant and the surrender procedures between Member States (‘the 2002 Framework Decision’), thus correspondence must be proven. These are offences which carry a maximum penalty of life imprisonment in Scotland and therefore the requirements of minimum gravity have been met.

9 In terms of correspondence and indeed for the purposes of the later arguments of the respondent, it is appropriate to set out in full the allegations against this respondent. At point (e) of the warrant, it states the following:

‘This warrant relates to in total; five offences

Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person;

(001) between 1st January 1989 and 31st December 1993, both dates inclusive at [redacted], ST did penetrate the anus of AM, born 2 April 1980, his cousin, with his penis and did have unnatural carnal connection with him.

(002) between 1st January 1989 and 31st December 1995, both dates inclusive at [redacted] ST did penetrate the anus of TH, born 29 March 1983, his cousin with his penis and did have unnatural carnal connection with him.

(003) between 1st January 1997 and 31st December 1998, both dates inclusive at [redacted] ST did use lewd, indecent and libidinous practices and behaviour towards BH, born 27 June 1989, his cousin, and did lie beside him in the bed there, handle his penis, cause said BH to masturbate him and did attempt to penetrate said BH's anus with his penis.

(004) on various occasions between 1st January 1994 and 31st December 1996, both dates inclusive at [redacted] ST did use lewd, indecent and libidinous practices and behaviour towards RH, born 12 November 1986, his cousin, and handle said RH's penis, cause said RH to handle ST's penis, cause said RH to penetrate ST's mouth with his penis, and ST did penetrate the mouth of the said RH with his penis.

(005) between 1st January 1994 and 31st December 1996, both dates inclusive at [redacted] ST did penetrate the anus of RH, born 12 November 1986, his cousin, with his penis and did have unnatural carnal connection with him.’

10 Counsel for the minister has submitted that these are offences of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 (‘the Act of 1990’). Section 2(1) states:

‘The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.’

Counsel further directed the Court to s. 14 of the Criminal Law Amendment Act, 1935, which states:

‘It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such person consented to the act alleged to constitute such indecent assault.’

In each of the offences outlined above, the age of the cousin is specified and on the dates covered by the alleged offences, each boy was aged under 15 years. Furthermore, the facts alleged against this respondent amount to matters of sexual assault as there can be no consent to the acts. In the circumstances, the Court is satisfied that each offence corresponds with an offence of sexual assault contrary to s. 2 of the Act of 1990.

Section 11(1A)(f) of the Act of 2003

11 Section 11(1A)(f) of the Act of 2003 provides that the EAW shall specify:

‘the circumstances in which the offence was committed or is alleged to have been committed, including the time and place of its commission or alleged commission, and the degree of involvement or alleged degree of involvement of the person in the commission of the offence […]’.

12 Counsel for the respondent submitted that in relation to the offences and in particular to offences 1 and 2, that the five or seven year span, being the time frame in which the alleged offences were carried out, does not comply with the specificity required under s. 11(1A)(f) of the Act of 2003. The case is not being made here that the lack of clarity amounts to an unfairness that requires the court to prohibit the respondent's surrender. Indeed, there is a complete absence of any attempt to comply with the requirements set down in Minister for Justice v. Stapleton [2008] 1 I.R. 669 and Minister for Justice v. Brennan [2007] 3 I.R. 732 for the purpose of establishing that surrender would amount to a flagrant denial of rights. The objection is based upon the failure to give the specificity required under s. 11(1A)(f) of the Act of 2003.

13 Counsel submitted that this type of time span would be unusual in this jurisdiction; this Court observes that it is not unknown in this jurisdiction. Counsel relied on the decision in Minister for Justice Equality and Law Reform v. Connolly [2014] IESC 34 in which the Supreme Court...