Minister for Justice and Equality v R.O

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 02 November 2017
• Neutral Citation: [2017] IEHC 663
• Docket Number: Record No. 2016/20 EXT
• Court: High Court
• Date: 02 November 2017

[2017] IEHC 663

THE HIGH COURT

Donnelly J.

Record No. 2016/20 EXT

2016/72 EXT

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

-AND-

R.O

RESPONDENT

Extradition – Ss. 11(1A)(f) and 37 of the European Arrest Warrant (EAW) Act, 2003 – Art. 8(e) of the 2002 Framework Decision – Essential elements of EAW – Vulnerable prisoner – Inhumane and degrading treatment – Violation of human rights

Facts: The applicant sought an order for the surrender of the respondent on the foot of the execution of two EAWs from the issuing state (U.K). The respondent contended that he was vulnerable to the prisons' condition in the issuing state as he was facing serious threats to his life and his condition might have deteriorated as he was already suffering from a serious physical illness. The respondent also contended that the issuing state had failed to include certain essential elements of the warrant as prescribed under s.11 (1A) (f) of EAW Act, 2003 pertaining to the description of circumstances and degree of involvement of the respondent in the commission of the offence.

Ms. Justice Donnelly held that the respondent's surrender was not prohibited under s. 11 (1A) (f) of the 2003 Act. The Court held that it was satisfied that both the EAWs contained sufficient detail for the purposes of that section. The Court sought further information from the U.K authorities as to the conditions in which the respondent would be living in case of his surrender to the U.K. The Court held that it was not satisfied that the relevant 2017 report had sufficiently addressed the concern of the Court regarding the risk of the respondent to inhuman and degrading treatment because of the respondent's vulnerabilities with respect to the offence with which he had been charged and the specific threats to his life.

JUDGMENT of Ms. Justice Donnelly dated this 2nd day of November, 2017.

1 The surrender of the respondent is sought by the United Kingdom of Great Britain and Northern Ireland ('the U.K.') on foot of two European Arrest Warrants. The first European Arrest Warrant ('EAW'), dated 27th January, 2016, was endorsed by the High Court on 1st February, 2016. The respondent was arrested thereunder on 3rd February, 2016 and was remanded in custody. The second EAW, dated 4th May, 2016, was endorsed by the High Court on 10th May, 2016 and the respondent was arrested thereunder on the same date and remanded in custody.

2 In respect of both of the EAWs, the respondent has raised three identical objections:

a) That his surrender is prohibited in circumstances where the U.K. is shortly to determine whether it will remain a part of the European Union ('E.U.') and where a withdrawal from the E.U. would have the effect of voiding any obligations of the regime established pursuant to the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European Arrest Warrant and the surrender procedures between member states ('the 2002 Framework Decision') and the European Arrest Warrant Act, 2003, as amended ('the Act of 2003'). He claims that the safeguards and protections afforded to persons surrendered pursuant to the Act of 2003 would be set at naught.

b) That his surrender is prohibited by virtue of Section 11(1A)(f) of the Act of 2003, and Article 8(e) of the 2002 Framework Decision in that neither EAW specifies sufficiently the matters thereby required.

c) That his surrender would be contrary to s. 37 of the Act of 2003, his constitutional rights and rights pursuant to the European Convention on Human Rights ('ECHR') in that he will face inhuman and degrading treatment in Maghaberry Prison.

3 The respondent made an additional objection to his surrender on the second European Arrest Warrant. This objection centred on the delay in respect of the prosecution of the alleged offence set out in that warrant.

A Member State that has given effect to the 2002 Framework Decision

4 The surrender provisions of the Act of 2003 apply to member states of the E.U. that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the 2002 Framework Decision. By the European Arrest Warrant Act, 2003 (Designated Member States) Order 2004 ( S.I. 4 of 2004), the Minister for Foreign Affairs designated the United Kingdom of Great Britain and Northern Ireland as a member state for the purposes of the Act of 2003.

Section 16 (1) of the Act of 2003

5 Under the provisions of s. 16(1) of the Act of 2003, the High Court may make an order directing that a requested person be surrendered to the issuing state provided that;

(a) The High Court is satisfied that the person before it is the person in respect of whom the EAW was issued;

(b) The EAW has been endorsed in accordance with s. 13 for execution of the warrant;

(c) The EAW states, where appropriate, the matters required by s. 45 of the Act of 2003;

(d) The High Court is not required under sections 21A, 22, 23 or 24 of the Act of 2003 to refuse surrender;

(e) The surrender is not prohibited by Part 3 of the Act of 2003.

Identity

6 The Court is satisfied on the basis of the information contained in both EAWs, in the additional documentation and in the affidavit of Sergeant James A. Kirwan, member of An Garda Síochána, that R.O, the person before the Court, is the person in respect of whom each EAW has issued.

Endorsement

7 The Court is satisfied that each EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

Section 45 of the Act of 2003

8 Each EAW seeks the respondent's surrender for prosecution. In those circumstances, the Court is satisfied that no issue arises pursuant to s. 45 of the Act of 2003 which deals with trials in absentia.

Sections 21A, 22, 23 and 24 of the Act of 2003

9 The Court is satisfied that in relation to each EAW, it is not required to refuse to surrender the respondent on the basis of any of the above sections.

Part 3 of the Act of 2003

10 Subject to further consideration of s. 37 and s. 38 of the Act of 2003, the Court is satisfied that it is not required to refuse the surrender of the respondent in respect of any other section contained in Part 3 of the Act of 2003 in respect to one or both European arrest warrants.

Section 38 of the Act of 2003

11 In the first EAW at point (e), it is indicated that the respondent is sought for the purposes of prosecution for two offences. The issuing judicial authority has ticked the boxes entitled 'murder, grievous bodily injury' and 'arson' at point (e) I for the purpose of relying upon Article 2, para. 2 of the 2002 Framework Decision in respect of the two offences in that warrant. It is therefore not necessary to establish double criminality (correspondence) with offences in this jurisdiction.

12 In the second EAW at point (e), it is indicated that the respondent is sought for prosecution for one offence of rape and the issuing judicial authority has ticked the box 'rape' to indicate reliance on Article 2, para. 2 of the 2002 Framework Decision. Therefore double criminality is not required to be established.

13 The details of the offences outlined on each of the EAWs are such that there is no manifestly incorrect designation by the issuing judicial authority of the offences as coming under the list of offences covered under Article 2 para. 2 of the 2002 Framework Decision. Furthermore, in light of the significant penalties that would apply to a person convicted of these offences, which are in excess of the three year minimum sentence that must be applicable before an offence can properly be designated as coming within the said Article 2 para. 2, the provisions of s. 38 of the Act of 2003 have clearly been met.

14 In light of the foregoing, the surrender of the respondent is not prohibited pursuant to the provisions of s. 38 of the Act of 2003.

The 'Brexit' point

15 The respondent has argued that his surrender is prohibited in circumstances where the U.K.'s notification of withdrawal from the E.U. has, inter alia, the effect of voiding the U.K's obligations pursuant to the 2002 Framework Decision and this State's obligations pursuant to s. 16 of the Act of 2003 to make orders for surrender. The central point in this argument has been rejected by this Court in its decision in Minister for Justice v. O'Connor [2017] IEHC 518. That decision is the subject matter of an application for leave to appeal directly to the Supreme Court. In light of the decision of this Court in the instant case, as set out further below, to seek further information from the U.K. authorities, the Court is not in a position to finalise its overall decision as to surrender in this case. In all the circumstances, the Court will not finalise the determination on the Brexit point at this juncture.

Section 11 of the Act of 2003

16 In respect of the first EAW, the respondent raises an issue in relation to s. 11(1A)(f) of the Act of 2003. He claims there is insufficient particularisation of the degree of involvement/participation of the respondent in the commission of the offences outlined on that EAW and insufficient linkage of the respondent to the offences.

17 The first EAW seeks his surrender for prosecution on alleged offences of murder and arson. The EAW states that an extensively burnt body of a woman was found in an upstairs bedroom of her home. She had been stabbed to death. The respondent first met the deceased on the evening before she was found dead when she was present with others in his company. She left that company to return home.

18 The first EAW recites that the respondent wore a cream waist-length jacket on the evening of the 1st - 2nd August, 2015 when he left an address outlined in the warrant, but was not wearing the jacket when he was seen by a friend at 4.45am on 2nd August, 2015 with his top half soaking and blood on his hand. There is also...