Minister for Justice and Equality v Lanigan

• Jurisdiction: Ireland
• Judge: MR JUSTICE PEART
• Judgment Date: 16 March 2016
• Neutral Citation: [2016] IECA 91
• Date: 16 March 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No.: 2015/482

[2016] IECA 91

THE COURT OF APPEAL

CIVIL

Peart J.

Appeal No.: 2015/482

Peart J.

Irvine J.

Mahon J.

BETWEEN:

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

- AND -

FRANCIS LANIGAN

RESPONDENT

European arrest warrant – Order for surrender – Uncertified appeal – Applicant seeking to strike out an uncertified appeal lodged by the respondent – Whether a certificate was required

Facts: The respondent, Mr Lanigan, on the 4th September 2015, was ordered to surrender to the United Kingdom, and specifically Northern Ireland, by Murphy J, pursuant to s. 16(1) of the European Arrest Warrant Act 2003 on foot of a European Arrest Warrant. The applicant, the Minister for Justice and Equality, applied to the Court of Appeal seeking to strike out an uncertified appeal lodged by the respondent against that order for surrender, on the grounds, firstly, that the Court lacks any jurisdiction to hear it given the limited right to appeal to the Court provided by s. 16(11) of the Act and given the refusal by the trial judge to give the required certificate, and secondly, that it is unsustainable and/or is bound to fail, and/or is an abuse of process. The respondent submitted that no certificate was required given the fact that the appeal raised issues as to the constitutionality of the procedures under the Act, and in particular s. 20 and s. 16(11) itself.

Held by Peart J that, while it was true that the respondent contended that some of the procedures fall short of being constitutionally fair procedures, that was not a challenge to the constitutionality of any of the provisions of the Act; it is appeals?which involve questions as to the validity of any law having regard to the provisions of the Constitution which are outside the grasp of s. 16(11) of the Act and require no certification. Peart J held that the respondent?s grounds contained no challenge to the validity of the Act or any of its provisions; it followed that the appeal sought to be brought by the Notice of Appeal that was lodged was not a valid Notice of Appeal since the respondent?s application for a certificate in respect of the identified points of law said to arise from the decision of the trial judge was refused.

Peart J held that he would make the order sought by the applicant on the ground that the Court lacks jurisdiction to hear the appeal.

Application granted.

MR JUSTICE PEART

1 On the 4th September 2015 an order was made by Murphy J. for the surrender of the respondent to the United Kingdom, and specifically Northern Ireland, pursuant to s. 16(1) of the European Arrest Warrant Act, 2003 as amended (?the Act?) on foot of a European Arrest Warrant. For the purposes of the present judgment only a limited amount of factual background is relevant as the Minister's motion to this Court now seeks to strike out the appeal lodged against that order for surrender, on the grounds, firstly, that having on the same date been refused leave to appeal under s. 16(11) of the Act, this Court has no jurisdiction to hear the appeal, and secondly, that it is unsustainable and/or is bound to fail, and/or is an abuse of process.

2 Section 16(11) of the Act provides as follows:

?(11) An appeal against an order under subsection ( 1) or (2), or a decision not to make an order may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.?

3 As stated, the High Court refused a certificate, but the appellant nevertheless lodged and served an uncertified appeal against the order for surrender made on the 4th September 2016, resulting in the present motion. It is clear from the Notice of Appeal lodged that the order dated 4th September 2016 which is the subject of this uncertified Notice of Appeal is that by which surrender was ordered, and not the second order of the same date under s. 16(11) refusing to certify a point or points of law of exceptional importance for the purpose of an appeal. All the grounds of appeal as stated therein relate to the order for surrender.

4 The kernel of the appellant's objection to the making of the order for his surrender to Northern Ireland is his fear that if returned to prison in Northern Ireland his life will be threatened. He swore an affidavit setting out clearly the basis for his fear, as did a solicitor who corroborated what the appellant himself stated in this regard. The Minister did not seek to contradict that evidence by any affidavit in response. The trial judge was satisfied on a prima facie basis that the appellant had established that there would be a substantial risk to his life if surrendered, but exercised the Court's powers under s. 20 of the Act in order to obtain information from the issuing Authority as to the ability of the Northern Ireland Prison Service to provide adequate protection to his life and wellbeing while in prison.

5 Certain information was provided in letter form in response to requests made on the Court's behalf by the Central Authority. Information was sought both in relation to the ability of the prison service in Northern Ireland to protect the appellant upon surrender, and secondly to address an issue of delay. A letter from the Northern Ireland Prison Service dated 10th April 2014 was produced in relation to the first question, and the Court was given a copy of its letter requesting the information. Upon receipt of these letters the trial judge had some concerns about the response received in that it appeared to be a form of circular about protection measures for prisoners, and not specifically addressing the appellant's individual circumstances. Some other concerns were raised as well. Eventually on the third day of the s. 16 hearing, an affidavit was sworn by John Davis, an official in the Central Authority which exhibited the correspondence, and provided some explanations in relation to the concerns raised by the trial judge. She continued to have some concerns as to provenance and these are set forth in the transcript note of her decision in this regard on 17th November 2014, and as appears at page 33 of that transcript, she decided to again seek further information pursuant to s. 20 of the Act. She stated that the additional information could be presented to the Court otherwise than on affidavit provided that the Court could be satisfied as to the?provenance and authenticity of the information and that the information relates to the specific case?. She adjourned her consideration of the points of objection until such time as this information was received.

6 The Central Authority wrote again to the Central Authority in the U.K. seeking the information requested by the trial judge, and in response information was provided by an Assistant Chief Constable in the PSNI. She was satisfied as to the provenance and authenticity of the information provided. Upon an indication that the trial judge was so satisfied, Counsel for the appellant raised objections as to its admissibility as evidence. In addition the appellant sought an Order for Discovery in relation to communications between the Central Authority and the authorities in the U.K. and in addition sought a reference to the CJEU...