Minister for Justice and Equality v Poteliunas
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 22 March 2017 |
| Neutral Citation | [2017] IEHC 244 |
| Docket Number | Record No. [2016] No. 126 EXT |
| Court | High Court |
| Date | 22 March 2017 |
[2017] IEHC 244
THE HIGH COURT
Donnelly J.
Record No. [2016] No. 126 EXT
Extradition – Constitution – Art. 34.5.4 of the Constitution – S. 16 (1) of the European Arrest Warrant Act, 2003 – Leave to appeal to the Supreme Court – Grant of stay – Balance of justice – Delay in making an application for stay
Facts: Following the refusal of the High Court to grant a certificate to appeal to the Court of Appeal, the respondent had filed the present application for seeking a stay on his surrender pending an application for leave to appeal to the Supreme Court. The main issue was in relation to the delay in filing the present application for stay. The applicant argued that there was no merit in lodging the appeal to the Supreme Court and hence, a stay should not be granted. The respondent submitted that the delay in filing the present application was due to the mistaken belief of the counsel that he required the High Court order refusing the certificate for leave to appeal before filing an appeal to the Supreme Court.
Ms. Justice Donnelly granted a stay to the respondent. The Court held that it was not mandatory to grant a stay in every case where an appeal was lodged to the Supreme Court as envisaged under art. 34.5.4 of the Constitution. The Court held that the parameters for obtaining leave to appeal to the Supreme Court were different from the parameters for granting certificate to appeal to the Court of Appeal. The Court found that the substantive case presented a fair question of general importance that must be resolved in the interests of justice. The Court noted that the application of the respondent was out of the prescribed time-limit. The Court, however, held that since the present case was the first case utilising the procedure for direct appeal to the Supreme Court as a result of the thirty-third constitutional amendment, a stay would be granted. The Court held that it would not be appropriate to penalise the respondent for the mistake of the counsel. The Court opined that the implication of art. 34.5.4 must be considered by the Minister and the respondent in all the future cases and the statutory time-limits ought to be respected.
This is an application for a stay pending an application for leave to appeal to the Supreme Court. As a result of the amendment to the Constitution, brought about by the Thirty-third Amendment, a party is entitled to seek leave to appeal directly to the Supreme Court from an order granting or refusing surrender made pursuant to s. 16(1) of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’).
Pursuant to the provisions of s. 16(11) of the Act of 2003, an application for a certificate for leave to appeal must be made to the High Court before an appeal can be taken to the Court of Appeal. That certificate may only granted if the High Court is satisfied that the order or decision involves a point of law of exceptional public importance and that it is in the public interest that an appeal should be taken to the Court of Appeal. If the certificate is granted and an appeal is lodged, the person cannot be surrendered to the issuing state while proceedings relating to the appeal are pending pursuant to s. 16(6) of the Act of 2003. Given that there may be a time lag between the granting of the certificate and the lodging of an appeal, then it may be necessary to apply for a stay. In this case, an Order of surrender was made by this Court on 3rd March, 2017 and perfected on 3rd March 2017. On 13th March, 2017, the respondent indicated his intention to seek a certificate of the High Court for the purpose of appealing that Order to the Court of Appeal and requested that the matter be heard on 16th March, 2017. The issue of time limits was not addressed at that hearing but it now appears to the Court that, pursuant to the provisions of Order 86A Rule 9 of the Rules of the Superior Courts, the respondent was out of time to lodge an appeal to the Court of Appeal. In any event, this Court refused to grant a certificate for leave to appeal on the basis that neither of the two statutory tests had been met. At the end of that hearing at 1pm on 16th March, 2017, counsel for the respondent engaged in the following exchange with the court:
Counsel: ‘I may be making an application in due course, if he [the respondent] does decide to appeal to the Supreme Court, we may be asking for a stay or continuing bail or something along those lines subject to instructions.’
The Court: ‘It is subject to instructions but you may have to address the court on the issue of bail at that stage as to whether I have jurisdiction to give bail in those circumstances, or to affect the matter in any other way, or whether in fact you may have to go the Supreme Court for any further stay.’
Counsel: ‘All subject to instructions.’
It appears that it was not until 5pm on Friday, 17th March, 2017, St. Patrick's Day, that an e-mail was sent to the Chief State Solicitor indicating an intention to apply for leave to appeal to the Supreme Court. It appears that this e-mail was not responded to until Monday, 20th March, 2017, when it was indicated that a stay would have to be sought. The respondent only filed his application to the Supreme Court, yesterday, Tuesday, 21st March, 2017. The respondent says that this was because his solicitors made a mistake, as they thought they required the Order refusing a certificate for leave to appeal before they could file the appeal with the Supreme Court.
In any event, no application for a stay was made at any point over the weekend or on the Monday, despite the stated intention to seek leave to appeal. No real explanation for that state of affairs has been given to the Court. It is well known that an application for a stay can encompass a stay for a limited time to permit an appeal to be lodged and thereafter may or may not include the time for the appeal to be heard.
The Order of surrender came into effect on Saturday, 18th March, 2017, and the respondent was liable to be surrendered at any point from then. When counsel for the respondent moved his initial application for the stay, he did so on the basis that he had a right of appeal to the Supreme Court and that a stay should be granted.
Counsel for the minister submitted that a stay should not be granted as there was no basis for the appeal and that, in any event, time had begun to run and arrangements had been made for the respondent's surrender. It was later clarified that flights had been booked.
Counsel for both parties were asked to address the Court on the law as it relates to stays. The case-law on this subject generally has been added to by the Supreme Court in two particularly relevant cases, namely Okunade v. Minister for Justice, Equality and Law Reform [2012] 3 I.R. 152 and Charles v. Minister for Justice and Equality, Ireland and the Attorney General [2016] IESC 48. Those cases concerned the position with regard to applications for stays or injunctions in judicial review cases arising out of immigration cases. Neither party took issue with the same provisions applying here. Save for some considerations which must be taken into account in the case of extradition matters, they are the criteria which apply.
It is important to state that the Court does not accept (nor was it really pressed by the respondent) that the Court must grant a stay in every case where there is an application for leave to appeal to the Supreme Court. It is not mandatory. The provisions of s.16 of the Act of 2003 do not require a stay on surrender in the event of an appeal to the Supreme Court pursuant to the provisions of Article 34.5.4 of the Constitution, unlike the appeal under s. 16(6) of the Act of 2003 (which is taken after the grant of a certificate by the High Court). The constitutional provision for appeals is subject to such regulations as may be prescribed by law. The law provides that the application for leave to appeal ‘does not operate as a stay of execution or of proceedings under the decision appealed from, except insofar as the Court of Appeal or (as the case may be) the High Court orders’. That is provided for in Order 58 Rule 10 of the Rules of the Superior Courts. The Order goes on to provide at Rule 27 that no application for interlocutory relief (including any relief by way of a stay or security for costs) may be made to the Supreme Court before the determination of the application for leave to appeal.
It is clear from the above that under the Constitution, the...
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