Minister for Justice and Equality v Adam Stuart Busby

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 30 July 2013
• Neutral Citation: [2013] IEHC 455
• Judgment citation (vLex): [2013] 7 JIC 3007
• Court: High Court
• Date: 30 July 2013

[2013] IEHC 455

THE HIGH COURT

Record No.: 211 Ext./2012

Minister For Justice v Busby

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between/

THE MINISTER FOR JUSTICE & EQUALITY

Applicant

-AND-

ADAM STUART BUSBY

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

ANTI-TERRORISM, CRIME & SECURITY ACT 2001 S114(2) (UK)

CRIMINAL LAW ACT 1977 S51(2) (UK)

CRIMINAL LAW ACT 1977 S51(4) (UK)

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

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

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

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 S44

EUROPEAN ARREST WARRANT ACT 2003 S142

EUROPEAN ARREST WARRANT ACT 2003 S37

POST OFFICE (AMDT) ACT 1951 S51

POST OFFICE (AMDT) ACT 1951 S13(1)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S7

POST OFFICE (AMDT) ACT 1951 S13

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

RENTON & BROWN CRIMINAL PROCEDURE ACCORDING TO THE LAWS OF SCOTLAND

EUROPEAN ARREST WARRANT ACT 2003 S2(1)

EUROPEAN ARREST WARRANT ACT 2003 S6

EUROPEAN ARREST WARRANT ACT 2003 S9

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S12(1)

EUROPEAN ARREST WARRANT ACT 2003 S12(2)

EUROPEAN ARREST WARRANT ACT 2003 S13(1)

EUROPEAN ARREST WARRANT ACT 2003 S20(2)

EUROPEAN ARREST WARRANT ACT 2003 S34

MIN FOR JUSTICE & ORS v SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73

MIN FOR JUSTICE v MCGRATH 2006 1 IR 321 2005/39/8054 2005 IEHC 116

MIN FOR JUSTICE v GORKA UNREP EDWARDS 29.3.2011 2011 IEHC 121

MIN FOR JUSTICE & ORS v WALKOWIAK UNREP EDWARDS 6.5.2011 2011/8/10627 2011 IEHC 182

MIN FOR JUSTICE & EQUALITY v GUZ UNREP EDWARDS 31.7.2012 2012/26/7693 2012 IEHC 388

EUROPEAN ARREST WARRANT ACT 2003 S5

KEIJZER THE EUROPEAN ARREST WARRANT IN PRACTICE 2009 92 PARA 2.1.2

MIN FOR JUSTICE v BAILEY UNREP SUPREME 1.3.2012 2012/25/7268 2012 IESC 16

EUROPEAN CONVENTION ON EXTRADITION 13.12.1957 ART 7

EUROPEAN CONVENTION ON EXTRADITION 13.12.1957 ART 26

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S6

MIN FOR JUSTICE & ORS v HILL UNREP SUPREME COURT 11.11.2010 (EX TEMPORE)(TRANSCRIPT NOT AVAILABLE)

R (BERMINGHAM & ORS) v DIRECTOR OF SERIOUS FRAUD OFFICE & R (BERMINGHAM & ORS) v GOVT OF THE UNITED STATES OF AMERICA 2006 3 AER 239 2007 2 WLR 635 2007 QB 727

EXTRADITION

European arrest warrant

Correspondence - Territoriality of offences - Relationship between Irish central authority, judicial authorities and the State - Role of central authority - Nature of extradition proceedings - Standard of proof - Approach to determining whether surrender appropriate -Offences of hoax threats made to persons in Scotland while respondent resident in the State - Whether offences committed outside territory of issuing State - Respondent previously tried for similar offences in State where court found State had jurisdiction -Whether abuse of process to seek surrender of respondent for subsequent similar offences - Whether correspondence - Whether issuing State had jurisdiction to prosecute - Whether s 44 of the European Arrest Warrant Act 2003 engaged where offences both territorial and extra-territorial - Whether s 44 satisfied - Minister for Justice, Equality and Law Reform v Sliczynski [2008] IESC 73, (Unrep, SC, 19/12/2008); Wyatt v McLoughlin [1974] IR 378 and Minister for Justice v Bailey [2012] IESC 16, (Unrep, SC, 1/3/2012) applied - Minister for Justice v McGrath [2005] IEHC 116, [2006] 1 IR 321; Minister for Justice, Equality and Law Reform v Gorka [2011] IEHC 121, (Unrep, Edwards J, 29/3/2011); Minister for Justice and Law Reform v Walkowiak [2011] IEHC 182, (Unrep, Edwards J, 6/5/2011) and Minister for Justice and Equality v Guz [2012] IEHC 388, (Unrep, Edwards J, 31/7/2012) approved - R (Bermingham) v Director of SFO [2006] EWHC 200 (Admin), [2007] QB 727; Laird v HM Advocate 1985 JC 37; Lipsey v Mackintosh (1913) 7 Adam 182; Clements v HM Advocate 1991 JC 62; HM Advocate v Megrahi 2000 JC 555; Reg v Doot [1973] AC 807; Liangsiriprasert v United States [1991] 1 AC 225; Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1; Attorney General v Parke [2004] IESC 100, (Unrep, SC, 6/12/2004); Wm Allan (1872) 2 Couper 402; John McKay (1866) 5 Irv 329; Wm Jeffrey (1842) 1 Broun 337; John Thomas Witherington (1881) 4 Couper 475 and Wm Edward Bradbury (1872) 2 Couper 311 considered - European Arrest Warrant Act 2003 (Designated Member States) Order 2004 (SI 4/2004), art 2 and sch 2 - Post Office (Amendment) Act 1951 (No 17), ss 13 and 51 - European Arrest Warrant Act 2003 (No 45), ss 2, 3, 5, 6, 9, 10, 12, 13, 16, 20, 21A, 22, 23, 24, 34, 37, 38, 44, 45 and 47 - Criminal Justice (Terrorist Offences) Act 2005 (No 2), ss 6, 43 and sch 2 - Council Framework Decision of 13/6/2002, recitals 5, 6, 8, and 9, arts 2, 4, 6 and 7 - European Convention on Extradition of 13/12/1957, arts 7 and 26 - Order for surrender granted (2012/211EXT - Edwards J - 30/7/2013) [2013] IEHC 455

Minister for Justice and Equality v Busby

Facts: The respondent was the subject of a European arrest warrant that was issued by the United Kingdom on the 13 ^th July 2010 on the basis of seven offences, including making threats to harm certain individuals and falsely reporting the existence of bombs that were likely to detonate (both by telephone), that he had allegedly committed. He refused to surrender to British authorities and so the applicant brought the matter before the court seeking an order to that effect pursuant to s. 16 of the European Arrest Warrant Act 2003 (‘the 2003 Act’).

It was the respondent”s contention that he should not be surrendered to the United Kingdom on five grounds. He stated that because he was living in Ireland at the time the seven offences were allegedly committed, the offences were committed outside the issuing state, if they were committed at all, therefore his surrender would be contrary to s. 44 of the 2003 Act. It was also said that the present application amounted to an abuse of process as he had already been tried and convicted in Ireland in relation to similar offences where it had been decided that he should be prosecuted in Ireland because the charges were not extra-territorial.

Held by Edwards J that in terms of the abuse of process argument, it was held that this argument was untenable. The respondent had claimed that he had been tried for similar offences in Ireland, and that because it had been decided that he could be prosecuted for those offences in the Irish jurisdiction, a similar approach should be taken with the alleged offences in the European arrest warrant. However, it was held that contrary to the contention of the respondent, the criminal proceedings and the present extradition proceedings could not be equated because the authorities bringing the proceedings (i.e. the Director of Public Prosecutions and the Irish Central Authority) were different entities with different functions; for instance, the Irish Central Authority”s role in extradition proceedings was simply to facilitate the application of a state that had issued a European Arrest Warrant. On that basis, it was said that there had been no abuse of process just because these two different authorities took a different view on the nature of alleged offences in different proceedings. It was further pointed out that on closer examination of the nature of the offences in both the criminal proceedings and the European Arrest Warrant, it seemed that the offences could be prosecuted in both Ireland and the United Kingdom because the conduct in carrying out the offences was based in the former, whilst the results of that conduct were felt in the latter.

In terms of the contention that the respondent”s surrender would be contrary to s. 44 of the 2003 Act, it was said that for such an argument to succeed, the Court would have to be satisfied that not only was the alleged offences that were contained within the European arrest warrant committed in a place outside the jurisdiction of the issuing state, but that the act or omission of which the offence consisted did not constitute an offence under the law of the state receiving the warrant by virtue of the fact that it had been committed in a place outside that state. It was held that the first proposition was satisfied because of the extra-territorial nature of the offence. However, it was further held that the second proposition was not satisfied because the acts of which the offences consisted did in fact constitute offences under Irish law – specifically, s. 6 of the Criminal Justice (Terrorist Offences) Act 2005 – and would still be regarded as offences even if those acts had been committed outside the jurisdiction.

Order of surrender pursuant to s. 16 of the European Arrest Warrant Act 2003 to the issuing state granted.

1 JUDGMENT of Mr Justice Edwards delivered on the 30th day of July, 2013.

Introduction:

2 The respondent is the subject of a European arrest warrant issued by Sheriff Alistair Noble, the Sheriff of Lothian and Borders at Edinburgh, on the 13 ^th of July, 2012. The United Kingdom of Great Britain and Northern Ireland (hereinafter "the United Kingdom" or "the U.K.") seeks the rendition of the respondent on foot of this warrant for the purposes of prosecuting him for the seven offences particularised therein. The warrant was endorsed by the High Court for execution in this jurisdiction on the 17th of July. 2012, and it was duly executed on the 18 ^th of July, 2012....