Minister for Justice and Equality v McLaughlin

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 20 October 2017
• Neutral Citation: [2017] IEHC 598
• Docket Number: Record No. 2017/18 EXT
• Court: High Court
• Date: 20 October 2017

[2017] IEHC 598

THE HIGH COURT

Donnelly J.

Record No. 2017/18 EXT

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

- AND-

DAMIEN JOSEPH MCLAUGHLIN

RESPONDENT

Extradition – International Law – European arrest warrant – Art.3 of the European Convention on Human Rights – Prisoner Ombudsman Annual Report – Oireachtas Committee.

Facts: The applicant sought the surrender of the respondent for the execution of the European Arrest Warrant (EAW) for the prosecution of certain offences in the requesting state. The respondent objected to the surrender on the grounds that the inhuman treatment in the prison and strip-searches/full-body searches would be in contravention of art.3 of the European Convention on Human Rights (‘ECHR’). The applicant rebutted the said contention and stated that there was no evidence that would have demonstrated a violation of art.3, and also in accordance with the Prisoner Ombudsman Annual Report, which emphasised thatfull-body searches were neither inhuman nor degrading in nature.

Ms. Justice Donnelly relied on the evidence presented to the Oireachtas Committee and stated that full-body searcheson the entry and exit of the prisonerswere unnecessary. The Court requested the applicant to provide more information on the use of prison-operated technologyfor full-body searches in the prison in Ireland, Northern Ireland as well as the requesting state.

JUDGMENT of Ms. Justice Donnelly delivered this 20th day of October, 2017.

1 The surrender of the respondent is sought by the United Kingdom of Great Britain and Northern Ireland (‘the U.K.’) on foot of a European Arrest Warrant (‘EAW’) dated 18th January, 2017, which was endorsed by the High Court on 20th January, 2017. The respondent was arrested thereunder on 2nd March, 2017, brought before the High Court on 3rd March, 2017 and subsequently remanded in custody.

2 The respondent objects to his surrender. He claims his constitutional right and his right under Article 3 of the European Convention on Human Rights (‘ECHR’) not to be subjected to inhuman and degrading treatment would be breached by virtue of the prison conditions he would be subject to in Maghaberry prison in Northern Ireland on surrender. The respondent claims that the full-body searches (strip-searches) which take place in Maghaberry of themselves, and also in conjunction with the background of controlled movement within the prison, reaches the threshold of inhuman treatment and the threshold of degrading treatment.

A Member State that has given effect to the 2002 Framework Decision

3 The surrender provisions of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’) apply to member states of the European Union (‘E.U.’) that the Minister for Foreign Affairs has designated as having, under their national law, given effect to 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’). By the European Arrest Warrant Act, 2003 (Designated Member States) Order 2004 ( S.I. 4 of 2004), the Minister for Foreign Affairs designated the United Kingdom of Great Britain and Northern Ireland as a member state for the purposes of the Act of 2003.

Section 16 (1) of the Act of 2003

4 Under the provisions of s. 16(1) of the Act of 2003, the High Court may make an order directing that a requested person be surrendered to the issuing state provided that;

(a) The High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,

(b) The EAW has been endorsed in accordance with s. 13 for execution of the warrant,

(c) The EAW states, where appropriate, the matters required by s. 45 of the Act of 2003,

(d) The High Court is not required under ss. 21A, 22, 23 or 24 of the 2003 Act as amended to refuse surrender,

(e) The surrender is not prohibited by Part 3 of the 2003 Act.

Identity

5 The Court is satisfied on the basis of the information contained in the EAW, the additional information and the affidavit of Padraig Boyce, member of An Garda Síochána, that Damien Joseph McLaughlin, who is before the Court, is the person in respect of whom the EAW has issued.

Endorsement

6 I am satisfied that the EAW was endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

Sections 21A, 22, 23 and 24 of the Act of 2003

7 The Court is satisfied that it is not required to refuse to surrender the respondent under any of the above sections in relation to the European arrest warrant.

Part 3 of the Act of 2003

8 Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003, the Court is satisfied that it is not required to refuse the surrender of the respondent under any other section contained in Part 3 of the 2003 Act.

Section 45 of the Act of 2003

9 The EAW seeks the respondent's surrender for prosecution and therefore point (d) of the EAW was not completed by the issuing judicial authority. In these circumstances, the Court is satisfied that his surrender is not prohibited under s. 45 of the Act of 2003 which deals with trials in absentia.

Section 38 of the Act of 2003

10 Point (e) of the EAW outlines that the respondent is sought for prosecution based on four domestic warrants of arrest for four offences in total; one of aiding and abetting in a murder, one of membership of a proscribed organisation, one of possession of an article suspected of being for the commission of an act of terrorism, and one of engaging in conduct in preparation for the commission of acts of terrorism.

11 Each of the four counts is linked to the respondent's alleged involvement on 1st November, 2012, in the murder of David Black, a prison officer at Maghaberry prison in Northern Ireland. The circumstances giving rise to the allegations are set out in the EAW and include an allegation that the respondent failed to sign for bail and bail was subsequently revoked.

12 At point (e) I of the EAW, the box entitled ‘terrorism’ has been ticked by the issuing judicial authority. This indicates reliance upon Article 2, para. 2 of the 2002 Framework Decision in respect of each of the alleged offences. In those circumstances, double criminality (correspondence) with offences in this jurisdiction is not required to be established. The maximum penalties applicable to each of the four offences are ten years, 15 years and two penalties of life imprisonment. Therefore, the requirements of minimum gravity have been met. There is no manifest error apparent in these designations. The respondent's surrender is not prohibited by s. 38 of the Act of 2003.

Section 37 of the Act of 2003

13 Under the provisions of s. 37 of the Act of 2003, a person shall not be surrendered, inter alia, if surrender would be incompatible with the State's obligations under the ECHR and its Protocols, or if surrender would constitute a contravention of any provisions of the Constitution, or there are reasonable grounds for believing that he or she would be tortured or subject to other inhuman or degrading treatment. The respondent claims that his surrender is prohibited under this section as there are reasonable grounds for believing that he would be at real risk on surrender of being subjected to inhuman and degrading treatment at Maghaberry prison.

The evidence

14 In his affidavit dated 17th May, 2017, the respondent outlines his experience of detention in Maghaberry prison from 29th September, 2009 to 23rd December, 2011. He was detained in Roe House, where republican prisoners are accommodated. The respondent details a protest which began there amongst republican prisoners because the prisoners felt that they were being degraded during full-body searches. In the course of these strip-searches, they were told they had to wiggle their tongues when they had to open their mouths and that they had to wiggle their toes. He outlines how he felt they were being made into objects of ridicule and also stated his belief that there was no drug problem in Roe House and so in his view, the prevention of drugs entering the prison could not constitute a basis for the performance of the full-body searches.

15 The respondent describes how prisoners were locked alone in their cells for long periods of time and had no freedom of movement. If they were taken to another room, they were locked in that room. He outlines that there was a requirement to be escorted by prison officers at all times within Roe House and describes what he experienced as a prison within a prison.

16 The respondent describes the details of a protest by prisoners in April 2010 against forced full-body searches and the oppressive controlled movement regime, and which resulted in prisoners no longer being able to attend Mass on Sundays and in a loss of prison visits. He outlines that an agreement (‘the August 2010 Agreement’) was reached between the prisoners and the Northern Ireland Prison Service (‘NIPS’) that was facilitated by an independent joint facilitation group. The respondent says that he understood a term of the agreement was that in all but exceptional circumstances, sitting on a Body Orifice Security Scanner (BOSS) chair would replace full-body searches. The respondent says the prison service did not comply with this term. He claims that prisoners had no opportunity to obtain contraband and nothing untoward was ever found, therefore, there was no reason for forced full-body searches. Even when taken to court, he said that prisoners had no opportunity to interact with any other person.

17 The respondent goes on to outline a particular kind of forced body search conducted on him in September 2010. He says he adopted the position that he would not be complying with but would not resist the body search. The respondent says that he was taken by about 10 to 15...