Minister for Justice and Equality v Bloniarczyk
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 24 June 2016 |
| Neutral Citation | [2016] IEHC 484 |
| Court | High Court |
| Docket Number | Record No. 2010/430 EXT |
| Date | 24 June 2016 |
[2016] IEHC 484
Record No. 2010/430 EXT
THE HIGH COURT
Crime & Sentencing – Ss. 22(7) and 22(8) – European Arrest Warrant Act, 2003 as amended – Surrendered accused – Request for consent of further prosecution of the accused – Delay as standalone ground to refuse consent – Constitutional and European Convention on Human Rights (ECHR) – Abuse of process – Breach of fair trial – Protection of rights under the 2003 Act.
Facts: The issuing state sought for consent for further prosecution of the respondent in the member state to which the respondent had already surrendered. The respondent contended that the delay that occasioned in the commission of the alleged offence and the request made by the issuing authority for consent to prosecute the applicant would be a standalone ground on which the request could be refused. The applicant contended that the delay would not be a standalone ground to refuse consent under the ambit of s. 22(8) of the 2003 Act, as amended, and must be considered under the context of fair trial to refuse the consent. An issue arose whether s. 22(7) of the 2003 Act, as amended, permitted the High Court to refuse surrender solely on the ground of delay.
Ms. Justice Donnelly granted consent to the applicant to prosecute the respondent for the offence set out in the request received from the issuing judicial authority. The Court held that the delay could not be a standalone ground to refuse surrender. The Court held that the abuse of process recognised as a ground outside the ambit of s. 22 (8) of the 2003 Act, as amended, that permitted the High Court to refuse to give consent for further prosecution. The Court observed that the delay occasioned since the commission of the alleged offence and the request being made by the issuing state did not amount to abuse of law or breach of fair trial. The Court observed that in the instant case, there had been no breach of the ECHR rights and constitutional rights of the respondent as the rights had been protected by s. 22(7) of the 2003 Act, as amended, under which the High Court made its decisions.
Is the High Court, in considering a s. 22 request for consent to further prosecution in the member state to which a respondent has already been surrendered, confined to a consideration of the prohibitions on surrender contained in Part 3 of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’)? Prior to answering that question, the court has to determine whether there is scope to deal with the particular factual issue raised within these proceedings under the provisions of Part 3 of the Act of 2003.
Counsel for the respondent submitted that the High Court is entitled to have regard, as a stand-alone ground, to the delay occasioned since the commission of the alleged offence and the request being made by the issuing state in determining whether to consent to the said request. Opposing that proposition, counsel for the minister argued that delay may not be considered as a stand-alone ground of objection to consent, and that the court is, in effect, bound to consent to a request for further prosecution subject only to grounds for refusal as set out in Part 3 of the Act of 2003. Counsel for the minister submitted that delay, as a stand-alone ground, was not a ground for refusing consent under the provisions of Part 3 of the said Act.
On 8th June, 2010, a European Arrest Warrant (‘EAW’) issued for the arrest of the respondent for the purpose of serving custodial sentences imposed upon him in Poland. On 30th August, 2013, the respondent was surrendered to Poland following an order of the High Court. By letter dated 25th September, 2015, following a decision of the Regional Court in Tarnow dated 22nd September, 2015, a request for consent to prosecute the respondent was made to the High Court.
The request sought consent to prosecute him for the alleged offence of burglary of a computer shop on 7th July, 2006, the details of which are set out in the request. The offence in Poland corresponds with an offence in this jurisdiction and carries with it a penalty, in the event of conviction, which exceeds the minimum sentence required by s. 38 of the Act of 2003 and the provisions of 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’).
I am satisfied, having read the request and considered the papers and submissions before me that, subject to the provisions of s. 37 of the Act of 2003 and further submissions as to delay as a stand-alone ground, consent to further prosecution is not prohibited under any other section contained in Part 3 of the Act of 2003, or indeed any other section in the said Act.
The only point of objection raised by the respondent is as follows:
‘The delay, comprised as it is of differing periods, between the commission of the offences and any potential surrender date of the Respondent is such that his surrender would be oppressive, in breach of Section 37 of the European Arrest Warrant, Act, as amended and in breach of the Respondent's constitutional rights’.
In reality, however, the real issue urged on behalf of the respondent is that the delay itself, i.e. without reference to any other substantive right, is sufficient for this Court to prohibit his surrender. It should also be noted that the reference to surrender in this point of objection was intended to be understood as referring to consent to further prosecution.
Section 22(7) provides as follows: ‘ The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to –
(a) proceedings being brought against the person in the issuing state for an offence,
(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of a person's liberty, in respect of an offence, or
(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state on that behalf.’
Section 22(8) provides: ‘ The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under this Act.’
The Court of Appeal in the case of Minister for Justice and Equality v. Sliwa [2016] IECA 130 dealt with the interpretation of s. 22 of the Act of 2003. In that case, the respondent argued that because he had already been ‘ proceeded against’ in respect of other offences to the point of sentence following his surrender, there was a breach of the rule of specialty. Hogan J., on behalf of the Court of Appeal, held as follows;
‘19. In her judgment Donnelly J. rejected the argument that s. 22(7) should be read by reference to the earlier provisions of s. 22(2), saying:
‘In the view of the Court, s. 22(7) provides in its plain and ordinary meaning that the Court has the power to consent to the request in each or any of the situations that may apply under the subsection. The restriction on that power is, on the plain and ordinary meaning of the subsection, only limited by subsection 8.’
20. We entirely agree with Donnelly J. that the Oireachtas has made a clear distinction between the position of the person facing surrender on the one hand (s. 22(2)) and the person already surrendered (s. 22(7)) on the other. The Oireachtas has accordingly elected to provide for prescriptive rules set out in s. 22(2) in the case of an application of the rule of specialty to the position of the offender first awaiting surrender. These prescriptive rules have not been applied in the case of the person who has already been surrendered. The only prohibition against giving consent specified by the Oireachtas is that contained in s. 22(8). There is, accordingly, simply no basis as a matter of statutory interpretation in seeking to apply the special rules in s. 22(2) applicable to one situation (i.e., the person awaiting surrender) to another (i.e., the person who has already been surrendered).
21. In reaching this conclusion we have not overlooked the submission on behalf of Mr Sliwa that in Strzelecki Denham C.J. had said that a request for consent pursuant to s. 22(7) ‘is in essence for consent for the surrender to cover the additional offences’ and, accordingly, an application for consent should be treated as if it was an application for surrender. In Strzelecki the Chief Justice was simply considering the inclusion of s. 37 in the prohibition in s. 22(8). She was not, however, addressing the separate question of the application of the prohibition in s. 22(2) to a request for consent pursuant to s. 22(7). The judgment does not accordingly support the submission that an application post-surrender for consent to prosecution, conviction or execution of a custodial sentence should in all respects be treated as if it was an application for surrender.
22. It is true that s. 22(7) is permissive and insofar as Donnelly J. may be considered to have suggested in her judgment that the High Court can only refuse surrender in respect of an application under this sub-section by reference to the prohibition contained in s. 22(8), we would respectfully disagree. Indeed, this comment may not have been intended as she was considering the only objections which had been advanced to the High Court in respect of the question of...
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