Minister for Justice and Equality v Lipatovs

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 04 March 2019
• Neutral Citation: [2019] IEHC 126
• Court: High Court
• Docket Number: [2013 No. 142 EXT]
• Date: 04 March 2019

[2019] IEHC 126

THE HIGH COURT

Donnelly J.

[2013 No. 142 EXT]

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

JANIS LIPATOVS

RESPONDENT

European Arrest Warrant – Surrender – European Arrest Warrant Act 2003 s. 16 – Applicant seeking the surrender of the respondent in accordance with the provisions of the European Arrest Warrant Act 2003 – Whether the respondent’s surrender was prohibited under s. 16 of the European Arrest Warrant Act 2003

Facts: The following questions arose in the application for surrender of the respondent, Mr Lipatovs, to serve a sentence of five years’ imprisonment imposed upon him for the offence of rape in the United Kingdom of Great Britain and Northern Ireland: Is a European Arrest Warrant required to demonstrate conclusively that a requested person waived not just the right to appear at trial, but in particular waived the right to appear at the sentence hearing? Additionally, should there be evidence of consideration by the trial court of the proportionality of proceeding to sentence instead of issuing an arrest warrant prior to sentence? The European Arrest Warrant confirmed that his trial proceeded in his absence in circumstances where he had knowledge of the scheduled trial and had given a mandate to a lawyer to represent him. He was defended by that lawyer at the trial.

Held by the High Court (Donnelly J) that the respondent’s surrender was not prohibited under s. 16 of the European Arrest Warrant Act 2003.

Donnelly J held that she would make an order for his surrender to such person in the issuing state as was duly authorised to receive him.

Application granted.

JUDGMENT of Ms. Justice Donnelly delivered on the 4th day of March, 2019

1 Is a European Arrest Warrant (‘EAW’) required to demonstrate conclusively that a requested person waived not just the right to appear at trial, but in particular waived the right to appear at the sentence hearing? Additionally, should there be evidence of consideration by the trial court of the proportionality of proceeding to sentence instead of issuing an arrest warrant prior to sentence? These questions arise in the present application for surrender of this respondent to serve a sentence of five years' imprisonment imposed upon him for the offence of rape in the United Kingdom of Great Britain and Northern Ireland (‘the UK’). The EAW confirms that his trial proceeded in his absence in circumstances where he had knowledge of the scheduled trial and had given a mandate to a lawyer to represent him. He was defended by that lawyer at the trial.

Section 16 of the European Arrest Warrant Act, 2003

2 In any proceedings for surrender under the provisions of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’), the High Court, as executing judicial authority, must be satisfied that a number of conditions have been met. The court is obliged to satisfy itself in respect of these conditions even if they have not been put directly in contest by the requested person.

A Member State to which the European Arrest Warrant Act applies

3 The Court is satisfied that the Minister for Foreign Affairs has designated the United Kingdom as a Member State of the European Union which has given effect to the Council (EC) Framework Decision of 13th June, 2002 on the European Arrest Warrant and Surrender Procedures between Member States (‘the 2002 Framework Decision’) under its national laws.

Identity

4 The High Court is satisfied on the evidence of Alan Crummey, a member of An Garda Síochána, the affidavit of the respondent and the details set out in the EAW, that the person before it is the person in respect of whom the EAW has issued.

Endorsement

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

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

6 The High Court is not required under the above provisions to refuse to surrender the person under this Act.

Part 3 of the Act of 2003

7 Subject to further consideration of s. 37, s.38 and s.45, the High Court is satisfied that his surrender is not prohibited under any other section contained in Part 3 of the Act of 2003.

Section 38 of the Act of 2003

8 The respondent was convicted of a single offence of rape. Part E of the EAW sets out in detail the circumstances in which the rape occurred. The issuing judicial authority has ticked the box ‘Rape’, indicating it is relying on Article 2, para. 2 of the Framework Decision to show that double criminality is not required to be established. In the circumstances, there is no manifestly incorrect ticking of that box. Given that the respondent received a five-year sentence of imprisonment, the terms of minimum gravity have been met. The surrender of the respondent is therefore not prohibited by the provisions of s. 38 of the Act of 2003.

Section 45 and Section 37 – Trial in Absentia

9 S. 45 of the Act of 2003 states: -

‘A person shall not be surrendered under this Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued, unless the European arrest warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by Council Framework Decision 2009/299/JHA, as set out in the table to this section.’

The table set out in s. 45 is a replica of the table set out in the amended part D of the form of the EAW required in the 2002 Framework Decision. This new form was brought about as a result of requirements set out in the said 2009 Framework Decision, which were designed to provide clear and common grounds for non-recognition of decisions rendered following a trial at which the person concerned did not appear in person.

10 At part D the issuing judicial authority has ticked the box at point (2) saying ‘ No, the person did not appear in person at the trial resulting in the decision’. The issuing judicial authority has then gone on to tick box 3.2 which states: -

‘being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;’

11 At part D4, which requires an issuing judicial authority to provide information about how the relevant condition has been met, the issuing judicial authority has stated as follows: -

‘Janis Lipatovs was present at earlier court hearings to answer these charges. He appeared at the Blackpool Magistrates' Court on 11/03/11, Preston Crown Court on the 23/06/11 and the 15/07/11. He failed to attend his trial which commenced on the 3rd January 2012. He was represented throughout the trial by his instructed counsel, Mr. Ciaran Rankin of Deans Court Chambers, Manchester.’

12 The central authority sought further information from the issuing state on the 9th January, 2019. That request for information asked the issuing state to advise if it was the case that the trial date was fixed on the respondent's last appearance in court on the 15th July, 2011 and if he was remanded on bail to the trial on that date. The issuing state replied: ‘ trial date was fixed on 15/7, defendant was present and remanded on conditional bail’.

13 In his points of objection, the respondent pleaded that surrender would be contrary to s. 45 of the Act of 2003 having regard to the fact that the EAW does not establish that the respondent was notified of the intention to proceed with sentencing in his absence or that he had waived his right to make representations. It is expressly accepted by the respondent that he was on notice that there would be a trial and that he was represented at trial by counsel and solicitor. The respondent said that he left the UK approximately four months prior to his trial. The respondent stated that he did not address his mind to the consequences of absenting himself from his trial. In his affidavit, he stated that he assumed the charges would be dropped due to the weakness of the case against him. He claimed he did not properly advert to the risk that there would be a trial in his absence, and in particular he did not consider the possibility that he could be sentenced in his absence.

14 The respondent's solicitor swore two affidavits. He averred to the contact he made with the solicitor who was on record for the respondent in the criminal trial and sentencing in the issuing state. He said he had not been able to get an affidavit from that solicitor. That solicitor attended and represented the respondent at police interview with an interpreter present. The solicitor represented him throughout the Magistrates' and Crown Court appearances; counsel also appeared in the Crown Court. It is specifically stated in the affidavit that the respondent was represented throughout the trial (emphasis added). The respondent agreed and signed a defence statement which was filed. The respondent had spoken often to his solicitor. When mail from the solicitor to the respondent had returned marked ‘not at this address’, and the client was no longer contactable by phone, the solicitor had the case listed before the Crown Court. It is said that the judge insisted however that the trial should proceed in light of ‘the ten-point test in R. v. Jones’ [2003] 1 AC 1.

15 An application to adjourn the trial and an application to sever the indictment were both refused. The respondent was represented throughout the trial and a defence was run on his behalf which was consistent with the version of events given during police interviews and with the content of the defence statement. The respondent was convicted and was sentenced to five years imprisonment. There appears to be no contest from what had been said that the conviction and...