Minister for Justice and Others v Adams (No 2)
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 18 October 2011 |
| Neutral Citation | [2011] IEHC 396 |
| Court | High Court |
| Date | 18 October 2011 |
[2011] IEHC 396
THE HIGH COURT
BETWEEN:
AND
EUROPEAN ARREST WARRANT ACT 2003 S16
EUROPEAN ARREST WARRANT ACT 2003 S16(1)
EUROPEAN ARREST WARRANT ACT 2003 S16(12)
CRIMINAL JUSTICE (MISC PROVISIONS) ACT 2009 S12(F)
O'SULLIVAN v CHIEF EXECUTIVE OF THE IRISH PRISON SERVICE & ORS 2011 1 ILRM 350
ARKLOW HOLIDAY LTD v BORD PLEANÁLA UNREP CLARKE 11.1.2008 2008/2/340 2008 IEHC 2
COURTS OF JUSTICE ACT 1924 S29
CRIMINAL PROCEDURE ACT 2010 S31
DPP v GRIFFIN UNREP CCA 18.10.2010 2010 IECCA 102
O (O) & O (B)(A MINOR) v MIN FOR JUSTICE & ORS UNREP COOKE 4.5.2011 2011 IEHC 175
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)
MIN FOR JUSTICE v STAPLETON 2008 1 IR 669
EUROPEAN ARREST WARRANT ACT 2003 S37
MIN FOR JUSTICE v BRENNAN 2007 3 IR 733
MIN FOR JUSTICE v HALL UNREP SUPREME 7.5.2009 2009/39/9728 2009 IESC 40
RAIU v REFUGEE APPEALS TRIBUNAL UNREP FINLAY GEOGHEGAN 26.2.2003 2006/50/10549
U (M A) & ORS v MIN FOR JUSTICE (NO.3) UNREP HOGAN 22.2.2011 2011 IEHC 59
DPP v FOLEY 1995 1 IR 267
CROSBY v DELAP 1992 ILRM 564
CASUAL TRADING ACT 1980 S3
CASUAL TRADING ACT 1980 S2(2)(D)
CASUAL TRADING ACT 1980 S2(2)(G)
CASUAL TRADING ACT 1980 S2(2)
MIN FOR JUSTICE v RETTINGER 2010 3 IR 753
MIN FOR JUSTICE v MAZUREK UNREP EDWARDS 13.5.2011 2011 IEHC 204
EXTRADITION LAW
Appeal
Leave - Threshold - whether practical result of successful appeal must be considered - Definition of "exceptional public importance" - Whether points raised transcend the respondent's case - Whether burden of proving egregious circumstances shifted to respondent - Kenny v An Bord Pleanála [2007] 1 IR 704, Arklow Holiday Ltd v An Bord Pleanála [2008] IEHC 2 , [2007] 4 IR 112, DPP v Griffin [2010] IECCA 102 and OO & BO v Minister for Justice [2011] IEHC 175 applied; Minister for Justice v Rettinger [2010] 3 IR 753 and Minister for Justice v Mazurek [2011] IEHC 204 followed - European Arrest Warrant Act 2003, s 16(2) - Leave to appeal refused - (68 EXT/2010 - Edwards - 18/10/2011) [2011] IEHC 396
Minister for Justice v Adams
JUDGMENT of Mr Justice Edwards delivered on the 18th day of October, 2011.
On the 3 rd October, 2011, this Court delivered its judgment in respect of an application by the applicant for an order pursuant to s. 16 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003") surrendering the respondent to the United Kingdom of Great Britain and Northern Ireland on foot of a European arrest warrant dated the 26 th January, 2010, so that he might face prosecution in Northern Ireland for a total of eighteen alleged sexual offences. The Court indicated in the course of its judgment that it was not disposed to uphold any of the specific objections to the proposed surrender raised by or on behalf of the respondent, and that as it was satisfied that the requirements of s. 16 of the Act of 2003 were satisfied it would make an order pursuant to subs. (1) thereof directing the surrender of the respondent to such person as is duly authorised by the issuing state to receive him.
After the Court had delivered its judgment, counsel for the respondent requested, on a consent basis, that the Court would defer making the formal order of surrender for a short period so as to allow his client to reflect upon the Court's judgment and to consider whether or not to seek the leave of the High Court to appeal to the Supreme Court pursuant to s. 16(12) of the Act of 2003. The Court acceded to the request for a short deferral until Thursday the 6 th October, 2011, in the first instance, and remanded the respondent on continuing bail to that date.
When the matter was mentioned to the Court on the 6 th October, 2011, counsel for the respondent informed the Court that his client now wished to seek leave to appeal. The application for leave to appeal was then listed for hearing on Monday the 10 th October, 2011, and, pending the hearing of that application, the Court at the request of the parties further deferred making a formal order of surrender, and the respondent was further remanded on continuing bail to the hearing date. The application for leave to appeal was duly heard on the 10 th October, 2011, following which the Court reserved judgment until today's date. Once again, pending delivery of its judgment on the application for leave to appeal, the Court was disposed at the request of the parties to further defer the making of a formal order of surrender and to further remand the respondent on continuing bail.
This Court's judgment on the application for leave to appeal is as follows:-
The relevant statutory provision is s. 16(12) of the Act of 2003, as amended by s. 12(f) of the Criminal Justice (Miscellaneous Provisions) Act 2009. The provision, as amended, reads:-
2 "(12) An appeal against an order under this section or a decision not to make such an order may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court."
There is no dispute between the parties as to the relevant jurisprudence which is well rehearsed in written legal submissions to this Court filed on behalf of the applicant. In the case of O'Sullivan v. Chief Executive of the Irish Prison Service & Ors. [2011] 1 I.L.R.M. 350, McKechnie J., in dealing with the constitutionality of the amended subsection, considered the meaning of the requirements set out in the provision in question. He stated at paras. 60 and 61:-
2 " 60. The impugned threshold under s. 16 (12) EAWA 2003 is that of "exceptional public importance" and "in the public interest". This threshold was considered by McKechnie J. in Kenny v An Bord Pleanála (No. 2) [2001] 1 I.R. 704 and by Clarke J. in Arklow Holiday Ltd v An Bord Pleanála [2007] 4 I.R. 112. In the latter, the learned judge said:
'In a number of decisions of this court the requirements of the section [ s. 50(4)(f) of the Planning and Development Act 2000] have been analysed in some detail and it is clear that a number of tests must be met:
(i) There must be an uncertainty as to the law in respect of a point which has to be of exceptional importance; see for example Lancefort v. An Bord Pleanála [ 1998] 2 I.R. 511.
(ii) The importance of the point must be public in nature and must, therefore, transcend well beyond the individual facts and parties of a given case. Kenny v. An Bord Pleanála (No. 2) [2001] 2 I.R. 704. It is the case that every point of law arising in every case is a point of law of importance. Fallon v. An Bord Pleanala [1992] 2 I.R. 308. That, of itself, is insufficient for the point of law concerned to be properly described as of 'exceptional public importance'.
(iii) The requirement that the court be satisfied 'that it is desirable in the public interest that an appeal should be taken to the Supreme Court' is a separate and independent requirement from the requirement that the point of law be one of exceptional public importance. See Kenny (No. 2). On that basis, even if it can be argued that the law in a particular area is uncertain, the court may not, on the basis, inter alia, of time or costs, consider that it is appropriate to certify the case for the Supreme Court. Arklow Holidays Limited v. Wicklow County Council and Others (Unreported, High Court, Murphy J., 4th February, 2004).' (ibid, at 115)
61. It is thus clear from the above decisions that this is a substantial threshold. However it is not of course insurmountable; as evidenced by the fact that Clarke J. ultimately allowed a certificate of appeal in Arklow Holiday Ltd v. An Bord Pleanála [2008] IEHC 2, notwithstanding having decided previously ( Arklow Holiday Ltd v. An Bord Pleanála [2007] 4 I.R. 112) that despite raising a point of law of exceptional public importance, it would not have been in the public interest to grant the certificate."
In Arklow Holiday Ltd v. An Bord Pleanála [2008] IEHC 2, (Unreported, High Court, Clarke J., 11 th January, 2008), Clarke J. stated as follows at para. [3.3.2]:-
2 " 3.2 A comprehensive distillation of the principles to be derived from the significant body of case law in this area can also be found in the judgment of MacMenamin J. in Glancre Teoranta v. An Bord Pleanala [2006] IEHC 205 in the following terms:-
'I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein.
1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.
2. The jurisdiction to certify such a case must be exercised sparingly.
3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.
4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny).
5. The point of law must arise out of ...
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