Minister for Justice and Equality v W.B.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 21 November 2016
• Neutral Citation: [2016] IECA 347
• Date: 21 November 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 347 CA Record No: 2016/41 High Court Record No: 2015/16 EXT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003, AS AMENDED, SECTION 16 (5) (a)

THE MINISTER FOR JUSTICE & EQUALITY

Respondent

V

W.B.

Appellant

[2016] IECA 347

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Neutral Citation Number: [2016] IECA 347

CA Record No: 2016/41

High Court Record No: 2015/16 EXT

THE COURT OF APPEAL

European arrest warrant – Surrender order – Point of law – Appellant seeking to oppose the making of a surrender order – Whether the appellant’s surrender was prohibited under s. 37(1)(a) and (b) of the European Arrest Warrant Act 2003

Facts: The appellant was the subject of a European arrest warrant dated the 16th of December 2014 on foot of which the Kingdom of Sweden sought his rendition for the purpose of prosecuting him for the offence of rape. Having been arrested in Ireland of foot of the said warrant, the appellant opposed in the High Court the making of a surrender order with respect to him on the grounds, inter alia, that his surrender would place him at real risk of an egregious breach of his fundamental rights. It was specifically contended that in the circumstances of his case his surrender was prohibited by s. 37(1)(a) and (b) of the European Arrest Warrant Act 2003, because Sweden did not have a bail system that leans against pre-trial incarceration unless it is absolutely necessary. It was contended that under Swedish law there was, in the case of serious offences, effectively a presumption in favour of pre-trial detention, rather than the reverse, and it was apprehended as a matter of very high likelihood that, if surrendered, the appellant would be placed in pre-trial detention immediately upon his return, notwithstanding his presumption of innocence and the absence of evidence tending to suggest that he was either a flight risk or likely to interfere with witnesses. The High Court did not uphold the appellant’s objections to his surrender and on the 20th of January 2016 made an order pursuant to s. 16(1) of the 2003 Act directing that the appellant be surrendered to such person as was duly authorised to receive him on behalf of the Kingdom of Sweden. In a reserved judgment delivered on the same date Donnelly J gave detailed reasons for the court’s decision. By a further order also made on the 20th of January 2016, the High Court (Donnelly J) pursuant to s. 16(11) of the 2003 Act certified that its said decision and order to surrender the appellant involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal. The point of law so certified was the following: Does the Swedish system of pre-trial release which requires that where there is probable cause that a person is suspected of a serious crime that he or she will remain in custody unless it is obvious that this is not necessary and where Swedish law requires a weighing up of the detriment to the suspect and other interest as against detention amount to such an egregious violation of human rights that the surrender ought to be refused as a result?

Held by Edwards J that the case before the High Court, and also before the Court of Appeal, was presented on two distinctly different bases: Firstly, it was contended that the appellant’s surrender was prohibited under s. 37(1)(a) of the 2003 Act because it would be incompatible with the State’s obligations under the ECHR; Secondly, and in the alternative, it was contended that the appellant’s surrender was prohibited under s. 37(1)(b) of the 2003 Act because it would constitute a contravention of a provision or provisions of the Constitution of Ireland. Edwards J held that the High Court judge’s analysis was rigorous and thorough and the Court was satisfied in all the circumstances that the case based on s. 37(1)(a) was correctly dismissed by the High Court judge. Edwards J was satisfied in the circumstances that the High Court judge was also correct in dismissing the case based on s.37 (1)(b).

Edwards J held that he would therefore answer the question referred to the Court by the High Court in the negative.

Judgment approved.

Judgment delivered on the 21st day of November, 2016 by Mr. Justice Edwards

Introduction

1 The appellant is the subject of a European arrest warrant dated the 16th of December 2014 on foot of which the Kingdom of Sweden seeks his rendition for the purpose of prosecuting him for the offence of rape. Having been arrested in this jurisdiction of foot of the said warrant, the appellant opposed in the High Court the making of a surrender order with respect to him on the grounds, inter alia, that his surrender would place him at real risk of an egregious breach of his fundamental rights. It was specifically contended that in the circumstances of his case his surrender was prohibited by s. 37 of the European Arrest Warrant Act 2003 (the Act of 2003), and more particularly by s. 37(1)(a) and (b) of that Act, because Sweden does not have a bail system that leans against pre-trial incarceration unless it is absolutely necessary. Indeed it was contended that under Swedish law there is, in the case of serious offences, effectively a presumption in favour of pre-trial detention, rather than the reverse, and it was apprehended as a matter of very high likelihood that, if surrendered, the appellant would be placed in pre-trial detention immediately upon his return, notwithstanding his presumption of innocence and the absence of evidence tending to suggest that he was either a flight risk or likely to interfere with witnesses.

2 The High Court did not uphold the appellant's objections to his surrender and on the 20th of January 2016 made an order pursuant to s. 16(1) of the Act of 2003 directing that the appellant be surrendered to such person as was duly authorised to receive him on behalf of the Kingdom of Sweden. In a reserved judgment delivered on the same date Donnelly J gave detailed reasons for the court's decision.

3 By a further order also made on the 20th of January 2016, the High Court (Donnelly J) pursuant to s. 16(11) of the Act of 2003 certified that its said decision, and order to surrender the appellant, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal.

4 The point of law so certified was the following:

‘Does the Swedish system of pre-trial release which requires that where there is probable cause that a person is suspected of a serious crime that he or she will remain in custody unless it is obvious that this is not necessary and where Swedish law requires a weighing up of the detriment to the suspect and other interest as against detention amount to such an egregious violation of human rights that the surrender ought to be refused as a result?’

The relevant facts

5 The authorities in the issuing state maintain that the appellant, an Irish citizen, raped a woman in Sweden in November 2012, while he was temporarily living and working in that jurisdiction. The applicant has deposed in an affidavit sworn for the purposes of these proceedings on the 28th of April 2015, that when he left Sweden he was unaware of any criminal investigation in Sweden but learned of it in late 2013 when he was contacted by Gardaí who had received a mutual assistance request from the Swedish authorities and who were asking for his co-operation in that regard. In response to this request the appellant attended voluntarily at a local Garda Station on the 17th of January 2014 with his solicitor where he was interviewed for some three hours during, or following, which he provided a lengthy voluntary statement to Gardai.

6 In his affidavit sworn for the purposes of the proceedings before the High Court the appellant exhibited a letter from the inspector of An Garda Síochána in his local area. The inspector stated that the respondent cooperated with their enquiries as part of a mutual assistance request from the Swedish authorities and that he furnished a detailed account and statement to that effect. The inspector also stated that as a result of the cooperation given by the respondent, the enquiries were completed as expeditiously as possible.

7 Subsequently the Swedish authorities issued their European arrest warrant on the 16th of December 2014, which was based upon a domestic detention order of Attunda District Court dated the 26th of November 2014.

8 At the contested surrender hearing the High Court had before it the aforementioned affidavit of the appellant, in which he also deposed that he had been at all times cooperative with the European arrest warrant process and that he met Detective Sergeant James Kirwan on 6th February, 2015 in order to execute the warrant. He stated that he has no wish to frustrate the criminal investigation in Sweden. He had given his cooperation to it from the earliest stage and had hidden nothing.

9 In addition, the High Court had before it an affidavit of Torben Setterlund, a public defence counsel in Sweden, sworn in these proceedings on the 4th of May 2015. In it, Mr Setterlund had stated, inter alia, that:

‘If [W.B.] returns to Sweden, he will probably be remanded in custody. According to Swedish law a person who is on probable cause suspected of such a serious crime as rape shall remand in custody unless it is obvious that detention is unnecessary. There is no bail system in Sweden.’

10 The correctness of Mr Setterlund's succinct précis of the position under Swedish law was subsequently confirmed in additional information furnished by the Swedish public prosecutor in response to a query raised by the Irish Central Authority. She stated in a letter to the Irish Central Authority dated 25th of June 2015 that:

‘The answer to your question is that there is no bail system or an equivalent system in Sweden. The...