Minister for Justice and Equality v Patrick Malachy Gordon
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 05 November 2013 |
| Neutral Citation | [2013] IEHC 515 |
| Court | High Court |
| Date | 05 November 2013 |
[2013] IEHC 515
THE HIGH COURT
and
EUROPEAN ARREST WARRANT ACT 2003 S13
TERRORISM ACT 2000 S58(1)(B) (UK)
EUROPEAN ARREST WARRANT ACT 2003 S16
EUROPEAN ARREST WARRANT ACT 2003 S15
EUROPEAN ARREST WARRANT ACT 2003 S15(1)
EUROPEAN ARREST WARRANT ACT 2003 S18(1)(C)
EUROPEAN ARREST WARRANT ACT 2003 S19
EUROPEAN ARREST WARRANT ACT 2003 S18
EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) ACT 2012 S11
EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) ACT 2012 S12
EUROPEAN ARREST WARRANT ACT 2003 S18(1)(B)
EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 24
TRANSFER OF SENTENCED PERSONS ACT 1995 S4
EUROPEAN ARREST WARRANT ACT 2003 S19(2)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)
SOROKINS & SOROKINA v LATVIA UNREP 28.5.2013 2013 ECR 457 (APPLICATION NO 45476/04)
RATTIGAN v DPP 2008 4 IR 639 2008/54/11351 2008 IESC 34
DPP v WHARRIE UNREP CCA 19.4.2013 2013 IECCA 20
EUROPEAN ARREST WARRANT ACT 2003 S18(1)
EUROPEAN ARREST WARRANT ACT 2003 S19(1)
QUEBEC RAILWAY LIGHT HEAT & POWER CO LTD v VANDRY 1920 AC 662
GOULDING CHEMICALS LTD v BOLGER & ORS 1977 IR 211
SHELLY v DISTRICT JUSTICE MAHON & DPP 1990 1 IR 36
CORMACK & FARRELL v DPP & JUDGES OF THE METROPOLITAN DISTRICT COURT 2009 2 IR 208 2008/8/1656 2008 IESC 63
H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55
H v FRANCE 1990 12 EHRR 74
STOGMULLER v AUSTRIA 1979-80 1 EHRR 155
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(3)
CONSTITUTION ART 38
O'CONNELL, STATE v JUDGE MCDERMOT FAWSITT & DPP 1986 IR 362 1986 ILRM 639
BARKER v WINGO 1972 407 US 514
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47
INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 9(3)
MCMULLEN v IRELAND UNREP ECHR 29.7.2004 2004 ECHR 404 (APPLICATION NO 42297/98)
POLICING & CRIME ACT 2009 S74 (UK)
EXTRADITION ACT 2003 S143 (UK)
EXTRADITION ACT 2003 S144 (UK)
EXTRADITION ACT 2003 S153A (UK)
EXTRADITION ACT 2003 S153B (UK)
EXTRADITION ACT 2003 S153C (UK)
EXTRADITION ACT 2003 S153A(2) (UK)
EXTRADITION ACT 2003 S153A(3) (UK)
EXTRADITION ACT 2003 S153A(4) (UK)
EXTRADITION ACT 2003 S153A(5) (UK)
EXTRADITION ACT 2003 S153B(2) (UK)
EXTRADITION ACT 2003 S153B(3) (UK)
EXTRADITION ACT 2003 S153B(4)(A) (UK)
EXTRADITION ACT 2003 S153B(5) (UK)
EXTRADITION ACT 2003 S153B(6) (UK)
EXTRADITION ACT 2003 S153B(7) (UK)
EXTRADITION ACT 2003 S153B(8) (UK)
EXTRADITION ACT 2003 S59(10) (UK)
EXTRADITION ACT 2003 S153B(9) (UK)
EXTRADITION ACT 2003 S153C(4) (UK)
EXTRADITION ACT 2003 S153C(5) (UK)
EXTRADITION ACT 2003 S153D(1) (UK)
EXTRADITION ACT 2003 S153D(2) (UK)
EXTRADITION ACT 2003 PART III (UK)
CRIMINAL LAW
Extradition
European arrest warrant - Application for postponement of surrender pending service of term of imprisonment in state - Application for temporary surrender for trial in issuing state - Right to trial with reasonable expedition - Relationship between ss 18 and 19 of European Arrest Warrant Act 2003 - Judicial discretion - Factors to be considered in determining whether to make temporary surrender order - Whether appropriate to postpone surrender - Whether appropriate to make temporary surrender order - Rattigan v DPP [2008] IESC 34, [2008] 4 IR 639; DPP v Wharrie [2013] IECCA 4 (Unrep, CCA, 19/4/2013); Cormack v DPP [2008] IESC 63, [2009] 2 IR 208; SH v DPP [2006] IESC 55, [2006] 3 IR 575; Quebec Railway, Light, Heat and Power Co v Vandry [1920] AC 662; Goulding Chemicals Ltd v Bolger [1977] IR 211; Shelly v District Justice Mahon [1990] 1 IR 36; State (O'Connell) v Fawsitt [1986] IR 362; Barker v Wingo (1972) 407 US 514; Sorokins v Latvia (App No 45476/04), (Unrep, ECHR, 28/5/2013); H v France (App No 10073/82), (1990) 12 EHRR 74; Stögmuller v Austria (App No 1602/62), (1979-80) 1 EHRR 155; McMullen v Ireland (App No 42297/98), (Unrep, ECHR, 29/7/2004) considered - European Arrest Warrant Act 2003 (No 45), ss 13, 15, 16, 18 and 19 - European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 (No 30), ss 11 and 12 - Council Framework Decision 2002/584/JHA, art 24 - Transfer of Sentenced Persons Act 1995 (No 16), s 4 - European Convention on Human Rights 1950, art 6 - Order for temporary surrender to be made once required undertakings received in writing from issuing state (2013/111EXT - Edwards J - 5/11/2013) [2013] IEHC 515
Minister for Justice and Equality v Gordon
Facts: The respondent was the subject of a European arrest warrant that was issued by the United Kingdom on the 23rd April 2013 on the basis of four offences contrary to s. 58(1)(b) of the Terrorism Act 2000, a statute of the issuing state. The respondent subsequently indicated a willingness to voluntarily surrender to the issuing state in accordance with s. 15 of the European Arrest Warrant Act 2003 (‘the 2003 Act’), which resulted in a s. 15 hearing being held. An order pursuant to s. 15(1) of the 2003 Act was subsequently made. Following the order being made, two applications were immediately brought before the Court: an application by the applicant for an order postponing the respondent”s surrender pursuant to s.18(1)(c) of the Act of 2003, and an application brought by the respondent for an order for him to be conditionally surrendered to the issuing state pursuant to s.19 of the Act of 2003. S.19 applied to individuals that were the subject of a European arrest warrant and also serving a sentence of imprisonment in the executing Member State; and an order under this section allowed temporary surrender with the sentence of imprisonment being reduced by an amount equal to any period of time spent by that person in custody or detention in the issuing state.
In bringing the s. 18 application, the applicant argued that the respondent should not be extradited to the issuing state until he finished serving his term of imprisonment in the Republic of Ireland. This was opposed by the respondent who claimed he was anxious to be transferred and have the matter dealt with as soon as possible. In regards to the s. 19 application, the applicant argued that the temporary surrender would cease at the conclusion of respondent”s trial in the issuing state, but because it was not known when that trial would be held, the application should be refused. It was also said that whilst s. 19 did not limit the period of temporary surrender to the period of the actual trial, the Oireachtas had not intended to permit the temporary surrender of a person at a time at which the date of trial is unknown and/or the trial is not ready to proceed. Further, it was argued that the respondent could not rely on the assertion that his right to be tried within a reasonable period of time under Article 6 of the European Convention on Human Rights would be breached if a s. 19 order was not made, because there was no evidence to suggest when his trial would be held. On the other hand, it was said that a s. 18 order was to be preferred because the applicant was rightly being punished for the commission of offences and because there was some certainty when his imprisonment would end so he could be transferred to the United Kingdom.
The respondent rejected the applicant”s argument that a s. 19 order should not be made when the date of trial in the issuing state was unknown, and he averred that the circumstances in which he was making the application were specifically dealt with by s. 19. It was said that a s. 19 order should be preferred to s. 18 order because the former dealt with his situation specifically. Further, it was said that the applicant had submitted no supporting evidence for his proposition that the Oireachtas had not intended to permit the temporary surrender of a person at a time at which the date of trial is unknown and/or the trial is not ready to proceed. The respondent also argued that an order under s. 18 would amount to a breach of his rights under Article 6 of the European Convention on Human Rights and that such a delay in transferring him could prejudice his defence.
Held by Edwards J that whilst Article 6 of the European Convention on Human Rights entitled the respondent to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’, it did not necessarily follow that a delay in the trial process amounted to a breach of this right. It was said that this would very much depend on all of the circumstances of the case including the length of the delay, the fact that the respondent”s personal rights had been abrogated on his imprisonment as a necessity, the seriousness of each respective case, and all other administrative, logistical and security issues.
In the present case, it was noted that the charges the respondent would face in the United Kingdom were at least as serious as those he had been convicted of in Ireland. It was also noted that the issuing judicial authority has advised the Irish Central Authority that it had a mechanism in place to facilitate a temporary surrender, with information being provided that demonstrated that amendments had been made to the United Kingdom”s Extradition Act 2003 to that end. The issuing state had also advised that they would provide undertakings to facilitate the temporary surrender if requested to do so. For those reasons, it was held that an order under s. 19 of the 2003 Act would be made in principle but only after the necessary undertakings were received. It was not envisaged that he would...
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