Minister for Justice and Equality v Johnston

JurisdictionIreland
JudgeMs. Justice Donnelly
Judgment Date07 March 2019
Neutral Citation[2019] IEHC 168
CourtHigh Court
Docket Number[2017 122 EXT]
Date07 March 2019

[2019] IEHC 168

THE HIGH COURT

Donnelly J.

[2017 122 EXT]

[2018 302 EXT]

BETWEEN
MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
PAUL JAMES JOHN JOSEPH JOHNSTON
RESPONDENT

European arrest warrants – Surrender – Arrest – Applicant seeking the surrender of the respondent under European arrest warrants – Whether the respondent’s arrest on the European arrest warrants was tainted by the unconstitutionality of his original arrest

Facts: The surrender of the respondent, Mr Johnston, to the United Kingdom of Great Britain and Northern Ireland was sought under two European Arrest Warrants (EAW) issued by judicial authorities in Northern Ireland. The first EAW was dated the 12th May, 2017 and sought the respondent’s surrender for the purposes of serving the balance of a life sentence imposed upon him for the offence of murder. The second EAW was dated the 31st August, 2018 and sought the respondent’s surrender for the purpose of standing trial for the offence of being unlawfully at large. He was arrested on the 16th May, 2017 on the first EAW and on the 8th October, 2018 in respect of the second EAW. The respondent’s main objection to surrender was based upon his claim that his original arrest and subsequent detention at Kilmainham Garda Station on the 13th May, 2017 in respect of a drugs search was unlawful and a “colourable device” to make him available for arrest when the first EAW could be received from the Northern Ireland authorities and endorsed for execution in Ireland’s jurisdiction. On that basis, the respondent claimed that his arrest on these EAWs was tainted by the unconstitutionality of his original arrest and that he should be at liberty.

Held by the High Court (Donnelly J) that it would reject the respondent’s objections to surrender in respect of both EAWs.

Donnelly J held that she would make an order for the surrender of the respondent to such other person as was duly authorised to receive him by the issuing state in respect of both of the EAWs.

Application granted.

JUDGMENT of Ms. Justice Donnelly delivered on the 7th of March, 2019
1

The surrender of the respondent to the United Kingdom of Great Britain and Northern Ireland (‘the UK’) is sought under two European Arrest Warrants (‘EAW’) issued by judicial authorities in Northern Ireland. The first EAW is dated the 12th May, 2017 and seeks the respondent's surrender for the purposes of serving the balance of a life sentence imposed upon him for the offence of murder. The second EAW is dated the 31st August, 2018 and seeks the respondent's surrender for the purpose of standing trial for the offence of being unlawfully at large. He was arrested on the 16th May, 2017 on the first EAW and on the 8th October, 2018 in respect of the second European arrest warrant.

2

According to the first EAW and additional information, on which his surrender to serve a life sentence in respect of an offence of murder is sought, he had originally been sentenced to be detained at the Secretary of State's pleasure as he was a young person at the time of the sentencing. That was varied on appeal on the 9th January, 2004 to life imprisonment with a tariff of imprisonment for 16 years. That tariff had expired on the 18th May, 2016 and his case was then subject to being considered by the Parole Commissioners for Northern Ireland (‘the Parole Commissioners’). The Parole Commissioners considered his case and decided on the 14th March, 2017 that it was necessary that he continued to be confined.

3

The respondent was granted temporary release from prison for a brief period from 0900hrs on 27th April, 2017. He failed to return to prison as required at 1500hrs on the same date. The failure to return to prison is the basis for the allegation set out in the second EAW that he has committed the offence of being unlawfully at large.

4

The respondent's main objection to surrender was based upon his claim that his original arrest and subsequent detention at Kilmainham Garda Station on the 13th May, 2017 in respect of a drugs search was unlawful and a ‘colourable device’ to make him available for arrest when the first EAW could be received from the Northern Ireland authorities and endorsed for execution in this jurisdiction. On that basis, the respondent claimed that his arrest on these EAWs was tainted by the unconstitutionality of his original arrest and that he should be at liberty.

Section 16 of the European Arrest Warrant Act 2003, as amended
5

In all applications for surrender pursuant to the European Arrest Warrant Act 2003, as amended (‘the Act of 2003’), the High Court must consider whether the requested person's surrender is prohibited by any subsection of s. 16(1) of the said Act.

Identity
6

I am satisfied on the basis of the information contained in each of the EAWs and the affidavit of the respondent and his solicitor, that the respondent who appears before me is the person in respect of whom both EAWs have issued.

Endorsement
7

I am satisfied that both EAWs 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
8

Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the respondent's surrender under any of the above provisions of the Act of 2003.

Part 3 of the Act of 2003
9

Subject to further consideration of sections 37, 38, 41 and 45 of the Act of 2003, having scrutinised the documentation before me in respect of each EAW, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

Section 38 of the Act of 2003
10

Under the provisions of s. 38(1)(b) of the Act of 2003, surrender is not prohibited if the offence for which surrender is sought has been designated as a list offence (within the meaning of Article 2, para. 2 of 2002/584/JHA Council Framework Decision on the European Arrest Warrant (‘the 2002 Framework Decision’) and is an offence of the required minimum gravity (three years). However, if the offence does not come within that list, correspondence and a different requirement of minimum gravity must be shown. Section 5 of the Act of 2003 states that for the purposes of the Act, an offence specified in an EAW corresponds to an offence under the law of the State ‘ where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the EAW is issued, constitute an offence under the law of the State’.

11

In the first EAW, the issuing judicial authority has ticked the box of ‘Murder’. The circumstances in which the offence was committed are set out in part E:-

‘At approximately 06:15 hours on 8 December 1999, two occupants of 74 Moyard Park, Belfast woke and thought they could smell smoke. They went outside and saw smoke coming from 68 Moyard Park, the home of Sean May….. Fire fighters entered the property. … They located a body on the bed in the bedroom… The injured person was not breathing and no pulse was detected…. A doctor pronounced the injured person deceased at 07:55 hours. … The pathologist arrived at 10:42 hours and carried out an examination, identifying 14-16 stab wounds to the left side of the body. In addition to the initial findings, a full search of the scene revealed a duvet with two bloody footprints. … The post mortem revealed that the deceased had been stabbed 47 times, and was left with a knife blade sticking out of his side. He had been struck on the head with a circular weapon a number of times, with at least three weapons believed to have been used to attack him. … On the 9 December 1999, Mary Johnson, step-mother of Stephen and Paul Johnson, brought her son Gerard McMahon to the Police. She had found him in his room on 8 December at 0800 hours. He was with Paul Johnson and Patrick Clarke known as Paddy Joe. Gerard admitted to Police that he had been at Mr May's house with Stephen and Paul Johnson and Paddy Joe…. On 13 December 1999, Police received information that [Paul Johnson] was in Scotland. He was arrested in West Lothian on 20 December 1999 on foot of a probation warrant. He was arrested later that same day for the murder of Sean May. He and Stephen Johnson were convicted murder on 22 March 2002 by Belfast Crown Court and sentenced to life imprisonment with a minimum tariff of 19 years. His traiff (sic) was reduced on appeal to 16 years. He (sic) tariff expired on 18 May 2016. THe (sic) release provisions under the Life Sentences (Northern Ireland) Order 2001 now apply. His case was referred to the Parole Commissioners for Northern Ireland. His case has been considered by the Parole Commission on two occasions, 1/11/15 and 17/11/16. On 14 March 2017 the Parole Commissioners determined that it is necessary for the protection of the public from serious harm that he should be confined. Paul Johnson was granted temporary release from prison on 27 April 2017 and failed to return….’

12

It is stated at part C2 of the warrant that the length of the custodial sentence or detention order imposed was ‘ sentenced to be imprisoned during the Secretary of States” pleasure. This was varied on appeal on 9 January 2004 to 16 years. Life imprisonment with a minimum tariff of 24 years.’ There is no manifest incorrect reliance on Article 2 paragraph 2 of the 2002 Framework Decision in respect of the offence of murder and the minimum gravity requirement is met. In the circumstances, his surrender is not prohibited under the provisions of section 38 of the Act of 2003.

13

In the second EAW, the issuing judicial authority has not opted for the ticked box offence and has given a full description of the offences in part E. Correspondence must be demonstrated.

14

The factual description of the offence is as follows:-

‘On 22nd March, Paul Johnson was convicted at Belfast Crown Court of the murder of Sean May. He was...

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