Minister for Justice and Equality v O'Connell
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 22 February 2019 |
| Neutral Citation | [2019] IEHC 95 |
| Court | High Court |
| Docket Number | [2017 No. 17 EXT] |
| Date | 22 February 2019 |
[2019] IEHC 95
THE HIGH COURT
Donnelly J.
[2017 No. 17 EXT]
European arrest warrant – Surrender – Delay – Applicant seeking the surrender of the respondent pursuant to a European arrest warrant – Whether surrender would violate the respondent’s fundamental rights
Facts: The applicant, the Minister for Justice and Equality, applied to the High Court for the surrender of the respondent, Mr O’Connell, to the United Kingdom of Great Britain and Northern Ireland pursuant to a European Arrest Warrant dated 20th December, 2016 which was endorsed by the High Court on the 23rd January, 2017. The respondent was arrested on the 5th July, 2017 and had been remanded on bail. The main reason for the delay in hearing this case was awaiting the decision of the Supreme Court and ultimately the Court of Justice of the European Union in respect of issues arising from the impending withdrawal of the United Kingdom from the European Union as a result of its notification of withdrawal under Article 50 of the Treaty on European Union (the Brexit point). In objecting to his surrender, the respondent raised three core arguments: a) a Brexit point; b) that a default sentence for a confiscation order was not a sentence or detention order within the meaning of the Council Framework Decision 2002/584/JHA of 13th June, 2002 on the European Arrest Warrant and the surrender procedures between member states, or the European Arrest Warrant Act 2003 - a related argument was that to imprison him would amount to a breach of the respondent’s fundamental rights under the European Convention on Human Rights and Bunreacht na hÉireann; c) a claim under s. 37 of the 2003 Act that surrender would violate his fundamental rights, based upon, inter alia, the delay in executing the warrant, his indigency and his personal and family rights.
Held by Donnelly J that she would reject all the points of objection raised by the respondent to his surrender.
Donnelly J held that she would make an order for his surrender to the person duly authorised by the issuing state to receive him.
Application granted.
This is an application for the surrender of the respondent to the United Kingdom of Great Britain and Northern Ireland (‘the UK’) pursuant to a European Arrest Warrant (‘EAW’) dated 20th December, 2016 which was endorsed by the High Court on the 23rd January, 2017. The respondent was arrested on the 5th July, 2017 and has been remanded on bail. The main reason for the delay in hearing this case was awaiting the decision of the Supreme Court and ultimately the Court of Justice of the European Union (‘CJEU’) in respect of issues arising from the impending withdrawal of the UK from the European Union (‘EU’) as a result of its notification of withdrawal under Article 50 of the Treaty on European Union (‘TEU’), (‘the Brexit point’).
The respondent is wanted by the UK to serve the remaining portion of a seven year sentence of imprisonment imposed in default of payment under a confiscation order made on 20th January, 2003. The imposition of this sentence relates to the conviction of the respondent in Middlesex Guildhall Crown Court on the 9th August, 2000 of five offences of being knowingly concerned in the fraudulent evasion of Value Added Tax (‘VAT’) between 1st August, 1996 and 25th March, 1999.
After conviction, an eight year sentence of imprisonment was imposed on the respondent. He was released on licence (with conditions) on the 24th March, 2003. The conditions on the respondent's licence expired on the 24th March, 2007. On the 20th January, 2003, the respondent was made subject to the confiscation order for which an additional seven year sentence of imprisonment in default of payment of the confiscation amount was imposed. According to the information in the EAW, under UK law, this additional sentence forms an integral part of the overall sentence imposed upon the respondent in respect of his five convictions for VAT evasion and this seven year sentence runs consecutively to the sentence imposed on the 9th August, 2000 in respect of the VAT evasion convictions.
The seven year default sentence of imprisonment imposed by the confiscation order was activated when the respondent failed to pay the confiscation order within the permitted time which expired on the 31st May, 2004. A warrant of committal was issued by Westminster Magistrates” Court on the 20th September, 2016 for non-payment of the confiscation order. As a result, the respondent is now sought by the requesting state so that he can serve the remaining part of the default sentence from the confiscation order.
In objecting to his surrender, the respondent raised three core arguments:
a) a Brexit point;
b) that a default sentence for a confiscation order was not a sentence or detention order within the meaning of the Council Framework Decision 2002/584/JHA of 13th June, 2002 on the European Arrest Warrant and the surrender procedures between member states (‘the 2002 Framework Decision’), or the European Arrest Warrant Act 2003, as amended (‘the Act of 2003’). A related argument was that to imprison him would amount to a breach of the respondent's fundamental rights under the European Convention on Human Rights (‘ECHR’) and Bunreacht na hÉireann.
c) a claim under s.37 of the Act of 2003 that surrender would violate his fundamental rights, based upon, inter alia, the delay in executing the warrant, his indigency and his personal and family rights.
As there are a number of conditions that must be satisfied prior to any surrender being permitted under the provisions of the Act of 2003, the Court will deal with those at the outset.
The surrender provisions of the Act of 2003 apply to those Member States of the European Union that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Framework Decision of the 13 June, 2002 on the European arrest warrant and the surrender procedures between Member States (‘the Framework Decision’). I am satisfied that by SI No. 4/2004 the Minister for Foreign Affairs has designated the UK as a Member State for the purposes of the Act of 2003
I am satisfied on the basis of the affidavit of Oliver Nevin, member of An Garda Síochána, the affidavit of the respondent, and the details set out in the EAW that the above named respondent who appears before me is the person in respect of whom the EAW has issued.
I am satisfied that the EAW has been endorsed in accordance with s. 13 for execution.
Having scrutinised the documentation before me, I am satisfied that I am not required to refuse his surrender under the above provisions of the Act of 2003 as amended.
Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003 as amended and having scrutinised the documentation before me, 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 provides for the offences for which surrender may be ordered. If the offence is an offence set out in para. 2 Article 2 of the 2002 Framework Decision, then, provided the requirements of minimum gravity in terms of available sentencing powers have been met, there is no requirement to find correspondence (double criminality) for the offence for which the person is requested with an offence in this jurisdiction.
In the present case, the offences proven against the respondent are that he was knowingly concerned in the fraudulent evasion of Value Added Tax. The issuing judicial authority has ticked the box marked ‘fraud’. That carries a sentence in excess of three years. In the circumstances, there is no manifestly incorrect reliance on Article 2 paragraph 2 of the Framework Decision.
The respondent is sought for the purpose of executing a custodial sentence of seven years. This was imposed upon him in default of not paying a confiscation order. The respondent contests that this type of default sentence can be subject to a European arrest warrant. For the purpose of s. 38, the term of seven years meets the minimum gravity requirement. I will deal with the substance of the respondent's submissions on the nature of the sentence imposed upon him later in this judgment.
Having regard to the provisions of s. 38, this Court is satisfied that the terms of the section do not prohibit his surrender.
The issuing judicial authority has ticked the box at part D of the EAW stating that this respondent appeared in person at the trial resulting in the decision. It is clear from the details contained in the EAW that he was present at his trial, present at his sentence, present at the confiscation hearing leading to the confiscation order and the default sentence. He was also present at the enforcement proceedings initially but absented himself. He was represented by solicitors at that hearing.
I am satisfied that the provisions of s. 45 do not prohibit his surrender as he was present at the proceedings resulting in the sentence for which his surrender is sought.
In his points of objection, the respondent pleaded that no transitional provisions had been adopted in the UK to ensure that persons surrendered thereto under an EAW will continue to enjoy entitlements under the 2002 Framework Decision after the date of withdrawal. These lack of entitlements included access to the CJEU under Article 267 of the TFEU as well as other entitlements...
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Minister for Justice and Equality v O'Connell
...leave to appeal to this court pursuant to Article 34.5.4° of the Constitution against the decision of the High Court (Donnelly J.) (see [2019] IEHC 95) that he be surrendered to the United Kingdom to serve the remaining portion of a 7 year sentence of imprisonment imposed in default of paym......