Minister for Justice and Others v Wharrie

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 22 January 2009
• Neutral Citation: [2009] IEHC 630
• Court: High Court
• Date: 22 January 2009

[2009] IEHC 630

THE HIGH COURT

Record Number: No.118/2007 Ext.

Min for Justice v Wharrie

No Redaction Needed

Between:

Minister for Justice, Equality and Law Reform

Applicant

And

Perry John Wharrie

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S18

EUROPEAN ARREST WARRANT ACT 2003 S37

STAFFORD v UNITED KINGDOM 2002 35 EHRR 32 13 BHRC 260 2002 AER (D) 422 (MAY)

AG, PEOPLE v O'CALLAGHAN 1966 IR 501 1968 102 ILTR 45

BAIL ACT 1997

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 PART III

Criminal law - European arrest warrant - Surrender - UK - Objection - Serving sentence - Punitive and preventative sentences - European arrest warrant Act 2003, as amended - Whether Court would prohibit surrender

Facts: The respondent objected to his surrender to the UK and was currently serving a thirty year sentence in Ireland for serious drugs offences. In 1989 he had been convicted for various offences and had received life sentences. In 2005, the UK Secretary of State authorised his release on a licence which had been revoked. He objected to surrender inter alia on the basis that he was already serving a lengthy sentence here, that he had been deprived of the opportunity to respond to the revocation notice and that he would be very elderly by the time he was to be surrendered. It was argued that the punitive element of the sentence had already been served with only a preventative element remaining, which rendered it unconstitutional that he would be surrendered. He asserted also that he had not "fled" within the meaning of the Act as the punitive element had already been served.

Held by Peart J. that for the respondent to be surrendered to the UK so that he could be returned to prison there following the revocation of his licence was not in breach of any provision of the Constitution or Convention. The Court had to give due respect to the penal system of the UK. If he was surrendered to the UK, he would be entitled to have his continued detention reviewed, thereby satisfying objections made. The Court would make the order for surrender sought.

1 Mr Justice Michael Peart delivered on the 22 day of January 2009 :

2 The surrender of the respondent is sought by a judicial authority in the United Kingdom under a European arrest warrant which issued there on the 10 ^th July 2007. It was endorsed for execution here on the same date, and on the 26 ^th July 2008, the respondent was duly arrested on foot of it and brought before the High Court, as required by s.13 of the European Arrest Warrant Act, 2003, as amended.

3 No issue is raised as to the identity of the respondent and I am satisfied in any event from the affidavit evidence of the arresting officer, Sgt. Anthony Linehan that the respondent, who he arrested on that date, is the person in respect of whom this warrant has been issued.

4 On the 17 ^th May 1989, the respondent was convicted of four offences which are set forth in the warrant as murder, robbery, possessing a firearm with intent to endanger life, and possessing a firearm while committing an offence. In respect of each of these four offences he received a life sentence. He was imprisoned to serve those sentences.

5 Some sixteen years later, on the 6 ^th April 2005, the Secretary of State authorised the respondent's release on licence, subject to seven conditions which are set forth in the warrant, and he was released on the 20 ^th April 2005 subject to those conditions. There is no need to set out these conditions in detail. The warrant sets out the manner in which some of the conditions have been breached by him, including by leaving his address without prior authorisation, and travelling outside Great Britain without prior permission.

6 His release on licence has since been revoked by the Secretary of State on the 10 ^th February 2006, and he has been recalled to prison.

7 That is the background to the present application for his surrender to the United Kingdom so that he can be returned to prison to serve the balance of the four life sentences imposed upon him on the 17 ^th May 1989.

8 All four offences for which the respondent was convicted and sentenced as described have been marked by the issuing judicial authority as coming within the list of offences in Article 2.2 of the Framework Decision. As such correspondence/double criminality does not require verification. Subject to addressing the submissions made by the respondent against an order for surrender being made, I am satisfied that the minimum gravity requirement is met by the remainder of life sentences to be served.

9 No undertaking is required to be provided by the issuing judicial authority pursuant to the provisions of s. 45 of the Act, since the trial and conviction did not occur in the absence of the respondent.

10 A relevant other fact that has occurred since the arrest of the respondent on foot of this European arrest warrant is that while in this jurisdiction the respondent committed a serious drugs offence for which he has already been tried and convicted at Cork Circuit Criminal Court on the 23 ^rd July 2008 and for which a thirty year sentence of imprisonment has been imposed, and which the respondent is currently serving here.

11 Any order for surrender which may be made by this Court will inevitably be the subject of an application under s. 18 of the Act, to have the order for surrender postponed until such time as the respondent is no longer required to serve any part of that sentence of imprisonment. Even though that sentence is under appeal, and to that extent it is not yet beyond doubt how many years will have to be served in prison here by the respondent, Mr Michael O'Higgins SC for the respondent proceeds with his submissions on the basis that it will inevitably be a very long time before the respondent will be released from this current sentence. That is relevant to the points of objection.

Points of Objection:

12 1. Lengthy sentence being served here:

13 The first point of objection arises from the fact that the respondent is serving a very lengthy sentence here for the foreseeable future, and that inevitably any order for surrender will have to be postponed for perhaps twenty years or more. As a result, Mr O'Higgins submits, it will be impossible for the respondent upon his return to the United Kingdom to challenge the making of the revocation order by way of judicial review or otherwise, given the passage of time since its making. Possible grounds for such a challenge have been stated to be the fact that the revocation order was made without any notice to the respondent, depriving him therefore of an opportunity to making submissions against its making, and further that the said order was made without apparently any recourse to a Parole Board recommendation.

14 Mr O'Higgins, while acknowledging the jurisprudence which has developed in relation to s. 37 of the Act (i.e. Brennan and Stapleton cases), seeks to argue that before this Court may order the surrender of a respondent it must be satisfied that there exist in the requesting state sufficient safeguards for the protection of constitutional and Convention rights of the respondent if and when surrendered. The fact that surrender in all probability will occur many years hence means that at this remove in time this Court can only speculate as to what the position might be so far ahead in time, and therefore cannot be sufficiently certain that when the time comes for surrender there will be any or any adequate safeguards, and for this reason the Court should desist from making the order sought on foot of the present warrant.

15 He submits that the more appropriate course would be for the issuing judicial authority to wait until such time as surrender can be implemented within a reasonably short time after the making of any order, rather than proceed with the present application, and thereafter seek an order for postponement. Mr O'Higgins submits that while, if the respondent was to be surrendered soon, there would be remedies open to him by way of judicial review of the revocation order, or by way of review by a Parole Board, this Court cannot presume that in twenty or more years time the same protections would be available.

16 It is submitted also that as the respondent is now aged about 50 years, he will probably be in his 70s by the time he is surrendered, and that there is no way of knowing now what state of health he might be in at that stage, or what other circumstances might then exist to justify a refusal of surrender if the application for surrender were to be made at that time.

17 Micheál P. O'Higgins SC for the applicant submits that the Act sets out the procedures to be undertaken, and that the postponement of surrender is specifically provided for in the terms in which s.18 has been enacted. That section does not place any limit on the period of time for which surrender may be postponed, and he submits that it is within the scheme of the arrangements, and the Act giving effect to them, that where a European arrest warrant has been executed here, the application for surrender must proceed expeditiously to a conclusion; and thereafter, if necessary and appropriate, implementation thereof may be postponed until such time, whenever that may be, as surrender can take place.

18 Mr O'Higgins submits also that in so far as the respondent may wish to challenge the revocation order by way of judicial review, there is nothing to preclude him from so doing now, should he wish to do so, even though he is in prison in this jurisdiction, and that this Court cannot concern...