Minister for Justice and Equality v B.H.

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 25 September 2013
• Neutral Citation: [2013] IEHC 445
• Court: High Court
• Date: 25 September 2013

[2013] IEHC 445

THE HIGH COURT

Record No.: 232 Ext./2012

Min for Justice v H (B)

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between/

THE MINISTER FOR JUSTICE & EQUALITY

Applicant

-AND-

B.H.

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

CHILD CARE ACT 1991 S12

CHILD CARE ACT 1991 S4

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 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 6) ORDER 2004 SI 532/2004 ART 2

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 6) ORDER 2004 SI 532/2004 SCHED

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

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EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

EUROPEAN ARREST WARRANT ACT 2003 S37

Extradition – European arrest warrant - Surrender - Proportionality - Evasion of justice - Disruption to family life - Fraud - Public interest - Private interests - European Arrest Warrant Act 2003 - European Convention on Human Rights - Constitution of Ireland

Facts: The respondent was the subject of a European arrest warrant that was issued by Germany on the 5 ^th March 2012, which sought her surrender so that she could be prosecuted in respect of twenty one fraud type offences and one offence of attempted arson. Although she was a German national, she had been resided in Ireland from 1999 to 2002, and then from 2011 onwards. She gave birth to her only child in Ireland in 2002, and because her former partner declined to be involved in raising their daughter, the respondent and her child returned to Germany to be closer to her parents. The pair returned to Ireland permanently in 2011. She refused to surrender to German 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 Act of 2003’).

The respondent argued that her surrender to German authorities would be a disproportionate measure, and was therefore prohibited by s. 37(1) of the Act of 2003. This point was argued on the basis that her and her daughter”s rights to respect for family life, guaranteed under Article 8 of the European Convention on Human Rights, would be breached if such a course of action was implemented. As a result, the Court requested the House Service Executive (‘HSE’) to compile a report on the possible arrangements that could be made for the respondent”s daughter should the respondent be extradited. That report was eventually received and it advised that should the respondent be extradited, her daughter should also return to Germany given the need for her to maintain a relationship with her mother and the fact that she had only spent a small proportion of her life living in Ireland. The report also noted that the respondent”s daughter had identified her maternal Grandmother as the person she would like to care for her in Germany, though the respondent was opposed to this arrangement.

Held by Edwards J that where a right under Article 8 of the European Convention on Human Rights was engaged in the context of a European Arrest Warrant, the appropriate test for determining whether an individual should be surrender was one of proportionality, and not exceptionality. In those circumstances, the Court must decide whether the proposed interference to those rights was outweighed by the relevant public interest in having the individual extradited. The weight of the public interest would depend very much on the specific circumstances of a case; for example, in a case where the crime an individual is alleged to have committed is particularly serious, there would be a greater public interest in extradition. It was also said that where a child”s Article 8 rights were engaged by a proposed extradition, the best interests of a child were said to be of primary consideration, though they could be outweighed by countervailing factors.

In considering the circumstances of the respondent”s case, it was said that because she had allegedly committed 21 acts of fraud over a 3 year period, the suggestion was that she was a persistent offender. In regards to the attempted arson offence, it was said that the facts of the case suggested that the respondent had been at the very least reckless with regard to whether death, injury or serious damage would be caused. It was therefore clear that the respondent could face a long term sentence of imprisonment if extradited and successfully prosecuted for these offences. It was also said that because the respondent arrived in Ireland with her daughter only 10 days after the alleged attempted arson was said to have occurred, it could reasonably be inferred that she left Germany in an attempt to evade justice. For these reasons, it was held that there was a significant public interest in the surrender of the respondent to German authorities.

In consideration of the article 8 rights of the respondent and her daughter, it was said that if the respondent was surrendered, the pair would be separated for a period of time except during arranged visits. Depending on whether the respondent was remanded in custody in Germany or not whilst awaiting trial, and whether or not she was convicted and sentenced to a period of imprisonment, this period of separation could be lengthy. It was noted that the Court believed that this separation would be particularly difficult because the pair had a very close relationship. It was also said that the respondent”s daughter would have to be relocated in Germany if there was to be any hope of regular personal contact between the pair. However, it was believed that if needed, the HSE”s German counterparts would be able to ensure that the respondent”s daughter received adequate care and could also put visiting arrangements in place between the respondent and her daughter so that their relationship could be maintained. In those circumstances, it was said that article 8 rights of the respondent and her daughter would not be breached if the respondent was surrendered, and that those private interests did not outweigh the significant public interest in seeing the respondent extradited.

Respondent surrendered to German authorities under the European Arrest, pursuant to s. 16(1) of the European Arrest Warrant Act 2003

1 JUDGMENT of Mr Justice Edwards delivered on the 25th day of September 2013

Introduction:

2 The respondent is the subject of a European arrest warrant issued by Germany on the 5th March, 2012. The warrant was endorsed by the High Court for execution in this jurisdiction on the 22 ^nd August, 2012, and it was duly executed on the 15th January, 2013. The respondent was arrested by Sergeant Martin O'Neill on that date, following which she was brought before the High Court on the same day pursuant to s. 13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter, the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing. However, before the matter came on for hearing the respondent's bail was revoked in circumstances where she had breached the terms of her bail. She had deliberately failed to answer her bail as a result of which this Court had had to issue a bench warrant for her arrest. She was duly arrested on foot of that bench warrant and brought before the Court which then remanded her in custody. As the respondent was the sole carer of a ten year old child at the time, i.e., her daughter A.B, it was necessary for the arresting Garda at the time of arrest to also invoke s. 12 of the Child Care Act 1991 and bring the child to a place of safety. In circumstances where there was nobody else to look after the child the Health Service Executive (hereinafter "the H.S.E.") initiated care proceedings and A.B. was taken into care initially on foot of an Emergency Care Order granted by the District Court and placed with foster parents, where she currently remains. However, there is no longer any...