Minister for Justice and Equality v Cahill

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 19 July 2012
• Neutral Citation: [2012] IEHC 315
• Court: High Court
• Date: 19 July 2012

Min for Justice v Cahill

APPROVED

Mr. Justice Edwards

JUDGMENT

BETWEEN/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-AND-

David James Cahill

Respondent

[2012] IEHC 315

Record No 300 EXT/2011

THE HIGH COURT

EXTRADITION

European Arrest Warrant

Surrender - Circumstances of offence - Request for additional information - Public interest - Fair procedures - Whether compliance with s 11(1)(A) - Whether warrant sets out circumstances in which offences committed - Minister for Justice, Equality and Law Reform v Desjatnikovs [2008] IESC 53, [2009] 1 IR 618; Minister for Justice, Equality and Law Reform v Hamilton [2005] IESC 292, [2008] 1 IR 60; Minister for Justice, Equality and Law Reform v Stafford [2009] IESC 83, (Unrep, SC, 17/12/2009); Minister for Justice and Equality v Shannon [2012] IEHC 91, (Unrep, Edwards J, 15/2/2012); Minister for Justice and Equality v Baron [2012] IEHC 180, (Unrep, Edwards J, 4/5/2012); Attorney General v Dyer [2004] IESC 1, [2004] 1 IR 40 and Minister for Justice, Equality and Law Reform v Fil [2009] IEHC 120, (Unrep, Peart J, 13/3/2009) considered - European Arrest Warrant Act 2003 (No 45), ss 11(1)(A), 16 and 20(1) - Framework decision, arts 2 and 8 - Hearing adjourned (2011/300EXT - Edwards J - 19/7/2012) [2012] IEHC 315

Minister for Justice v Cahill

Facts: The respondent opposed his surrender request pursuant to the European arrest warrant Act 2003, as amended, on the grounds that the warrant had failed to set out the circumstances in which the offence was committed, as required by the Framework Decision in Article 8(e) and pursuant to s. 11 of the Act of 2003 as amended. The Irish Central Authority had sought information from the Serious Organised Crime Agency (SOCA), which acted as the UK Central Authority, to remedy apparent deficits in the warrant and the Court adjudged their response received to be inadequate. The Court considered the circumstances whereby it would exercise its powers to reiterate the request pursuant to s. 20(1) of the Act of 2003 for additional information.

Held by Edwards J. that if the Court was to seek the required additional information, the respondent would not be so prejudiced. Accordingly, the Court would exercise its powers under s. 20(1) of the Act of 2003 to reiterate a request to SOCA for additional information setting out the description of the circumstances in which the offence was committed, including the time, place and degree of participation in the office. The Court of its own motion directed that its judgment be brought to the attention of EUROJUST and that the assistance of EUROJUST be sought. The surrender hearing would be adjourned pending receipt of the request.

EUROPEAN ARREST WARRANT ACT 2003 S11(A)

EUROPEAN ARREST WARRANT ACT 2003 S11(1)(A)(F)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8( E)

MIN FOR JUSTICE v DESJATNIKOVS 2009 1 IR 618

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

MIN FOR JUSTICE v HAMILTON 2008 I IR 60

MIN FOR JUSTICE v STAFFORD UNREP SUPREME 17.12.2009 2009/39/9807 2009 IESC 83

MIN FOR JUSTICE v SHANNON UNREP EDWARDS 15.2.2012 2012 IEHC 91

MIN FOR JUSTICE v BARON UNREP EDWARDS 4.5.2012 2012 IEHC 180

AG v DYER 2004 1 IR 40

MIN FOR JUSTICE v FIL UNREP PEART 13.3.2009 2009/39/9647 2009 IEHC 120

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

1 JUDGMENT of Mr. Justice Edwards delivered on the 19th day of July, 2012

Introduction:

2 This case concerns a request by the United Kingdom of Great Britain and Northern Ireland for the rendition of the respondent on foot of a European Arrest Warrant dated the 16 ^th August, 2011 for the purpose of having him serve the balance of a sentence of 11 years imprisonment imposed upon him by Kingston-Upon-Thames Crown Court on the 20 ^th October, 2005 in respect of 19 offences in total, consisting of 12 offences of robbery and 7 offences of having a firearm with intent to commit indictable offence. The European Arrest Warrant in question was endorsed for execution in this jurisdiction on the 6 ^th September, 2011 and it was executed on the 22 ^nd February, 2012. The matter then came before this Court on yesterday's date for the purpose of a contested surrender hearing.

3 The respondent opposes his surrender on various grounds, including, inter alia, on the basis that the European Arrest Warrant does not comply with the requirements of s.11(1)(A) of the European Arrest Warrant Act 2003 (hereinafter the Act of 2003) (which in turn mirrors and gives effect to Article 8 of the Framework Decision (Council Framework Decision of 13 ^th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/584/JHA)). In particular, the respondent complains that in respect of each of the 19 offences the warrant fails to set out "the circumstances in which the offence was committed or is alleged to have been committed, including the time and place of its commission or alleged commission, and the degree of involvement or alleged degree of involvement of the person in the commission of the offence" as it is required to do both by s.11(1)(A)(f) of the Act of 2003, and by Article 8(e) of the Framework Decision. While Article 8(e) is worded slightly differently to the section in the transposing statute the difference is of no materiality (as has been held by the Supreme Court in Minister for Justice Equality and Law Reform v Desjatnikovs [2009] 1 I.R. 618). Just for completeness, it can be noted that the Article 8(e) wording requires that the warrant should contain a description of "the circumstances in which the offence was committed, including the time, place, and degree of participation in the offence by the requested person".

4 This Court is of the view, for reasons which will be elaborated upon later in this judgment, that the respondent's complaint in this regard has substance. Moreover, it appears that this view was shared by the applicant (the Irish Central Authority), who sought additional information from his counterpart in the issuing state, i.e. SOCA (the Serious Organised Crime Agency which acts as the U.K. Central Authority) for the purpose of remedying the apparent deficits contained in the European Arrest Warrant itself. That request was communicated by email dated the 27 ^th June, 2012. However, SOCA did not respond until the day before yesterday (17 ^th July, 2012, the date of the hearing) and the response received was unsatisfactory for reasons which will be elaborated upon below.

5 The Court has refused an application by the respondent to make an order at this point refusing to surrender the respondent on the basis that the warrant is bad. Moreover, it has acceded to a request from the applicant that the Court should itself, exercising its power to do so under s.20(1) of the Act of 2003, reiterate the request to SOCA for the necessary additional information.

6 The Court will now set out its reasons for doing so.

Relevant Provisions of the European Arrest Warrant

7 The offences to which the European Arrest Warrant relates are set out in part E of the warrant in the following manner:

"This warrant relates to in total 19 offences:"

8 1 Robbery

9 2 Having firearm with intent to commit indictable offence

10 3 Robbery

11 4 Having firearm with intent to commit indictable offence

12 5 Robbery

13 6 Having firearm with intent to commit indictable offence

14 7 Robbery

15 8 Robbery

16 9 Robbery

17 10 Robbery

18 11 Robbery

19 12 Having firearm with intent to commit indictable offence

20 13 Robbery

21 14 Robbery

22 15 Having firearm with intent to commit indictable offence

23 16 Robbery

24 17 Having firearm with intent to commit indictable offence

25 18 Robbery

26 19 Having firearm with intent to commit indictable offence"

27 Some brief additional information is provided under the heading "Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person".

28 The following details appear under that heading:

"The offences all took place in 2005, on the 28 ^th April, 30 ^th April, 2 ^nd May, 4 ^th May, 5 ^th May, 7 ^th May, 12 ^th May, 14 ^th May (x2), 17 ^th May, 18 ^th May, 19 ^th May. The robberies were all committed at either off licenses, bookmakers, or shops. In all of the robberies, two or more persons were involved. One would brandish a weapon and the other suspect would assist. On the 28 ^th April, 30 ^th April, 4 ^th May, 15 ^th May, 17 ^th May, 18 ^th May, 19 ^th May a gun is said to have been brandished. On the 5 ^th May, 7 ^th May, and 12 ^th May, a knife was brandished."

29 Then the following further details appear under the heading "Nature and Legal Classification of the Offence(s) and the applicable statutory provision/code":

"Section 8 of the Theft Act of 1968

Section 18 of the Firearms Act of 1968"

30 The issuing judicial authority has sought to invoke paragraph 2 of Article 2 of the Framework Decision by ticking the box relating to "organised or armed robbery" in part E I of the warrant. Moreover, as part E II has been left blank it is clear that the ticked box procedure is being invoked in respect of all 19 offences.

31 It has been submitted to the Court by counsel for the respondent, and not disputed by counsel for the applicant, that the information contained in the warrant provides only the skimpiest description of the circumstances of the offences in question and does not differentiate one from the other, other than by means of date. The exact premises concerned in each incident are not identified. The injured parties are not identified. The goods stolen in the course of the various robberies are not specified. The accomplices in each instance are not identified...