Minister for Justice and Equality v Corcoran

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 31 January 2018
• Neutral Citation: [2018] IEHC 29
• Docket Number: [2017 No. 41 EXT]
• Court: High Court
• Date: 31 January 2018

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

NOEL PATRICK CORCORAN

RESPONDENT

[2018] IEHC 29

[2017 No. 41 EXT]

THE HIGH COURT

Asylum, Immigration and Nationality - European Arrest Warrant Act, 2003 - Surrender of requested person - Evasion of Duty - Mental Health - Inhuman and degrading conditions in prison

Facts: The applicant sought the surrender of the respondent pursuant to the EAW issued by the judicial authority of the United Kingdom for fraudulent or attempted evasion of duty by the respondent. The respondent contended that his surrender would be the violation of s. 37 of the Act of 2003 as there was fear of the respondent being subjected to inhuman and degrading treatment. The respondent also alleged that there was a risk of misuse and bullying of his mental health condition and that he might be given an overdose of diazepam due to lack of professional guidance on the administration of medicines.

Ms. Justice Donnelly granted the relief to the applicant and order for the surrender of the respondent to such a person as was duly authorised by the issuing state (UK) to receive the respondent. The Court held that there was no indication that the bullying or fear of bullying would reach the intensity of ill-treatment. The Court opined that there was no suggestion that the respondent had any significant medical health concern other than chronic anxiety and thus, there was no potentially high risk. The Court stated that it was not satisfied that the respondent would be subjected to inhuman or degrading condition in the prison.

JUDGMENT of Ms. Justice Donnelly delivered on the 31st day of January, 2018

1 This is an application pursuant to a European Arrest Warrant ('EAW') issued by a judicial authority of the United Kingdom of Great Britain and Northern Ireland ('the UK') for the surrender of the respondent for the purpose of criminal prosecution in respect of two alleged offences concerning the fraudulent evasion or attempted evasion of duty chargeable on certain goods. The EAW sets out the details of the allegations against the respondent. It alleges that in July 2012, the respondent was the driver of a van which was stopped on the M2 outside Belfast in which 200,000 cigarettes were found. It is alleged that these were contained in counterfeit packaging and that the appropriate revenue had not been paid on the cigarettes. The respondent had been bailed to appear at a Police Service of Northern Ireland station in October 2012 but failed to do so.

2 The main issue in the case arose out of the respondent's ongoing medical condition and the conditions in the prisons in Northern Ireland. Prior to addressing those I will deal with the other matters of which I must be satisfied before surrender can be ordered.

A Member State that has given effect to the 2002 Framework Decision

3 The surrender provisions of the European Arrest Warrant Act, 2003, as amended ('the Act of 2003') apply to member states of the European Union ('E.U.') that the Minister for Foreign Affairs has designated as having, under their national law, given effect to the Council (EC) Framework Decision of 13th June, 2002 (2002/584/JHA) on the European Arrest Warrant and the surrender procedures between member states ('the 2002 Framework Decision'). By the European Arrest Warrant Act, 2003 (Designated Member States) (No. 3) Order, 2004 ( S.I. 206 of 2004), the Minister for Foreign Affairs designated the UK as a member state for the purposes of the Act of 2003.

Section 16 (1) of the Act of 2003

4 Under the provisions of s. 16(1) of the Act of 2003, the High Court may make an order directing that a requested person be surrendered to the issuing state provided that;

(a) The High Court is satisfied that the person before it is the person in respect of whom the EAW was issued,

(b) The EAW has been endorsed in accordance with s. 13 for execution of the warrant,

(c) The EAW states, where appropriate, the matters required by s. 45 of the Act of 2003,

(d) The High Court is not required under ss. 21A, 22, 23 or 24 of the 2003 Act as amended to refuse surrender,

(e) The surrender is not prohibited by Part 3 of the 2003 Act.

Identity

5 The Court is satisfied on the basis of the information contained in the EAW and the affidavit of Don Healy, member of An Garda Siochána, that Noel Corcoran, who is before the Court, is the person in respect of whom the EAW has issued.

Endorsement

6 I am satisfied that the EAW was endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

Sections 21A, 22, 23 and 24 of the Act of 2003

7 The Court is satisfied that it is not required to refuse to surrender the respondent under any of the above sections in relation to the European arrest warrant.

Part 3 of the Act of 2003

8 Subject to further consideration of s. 37, s. 38 and s. 45 of the Act of 2003, the Court is satisfied that it is not required to refuse the surrender of the respondent under any other section contained in Part 3 of the 2003 Act.

Section 45 of the Act of 2003

9 The EAW seeks the respondent's surrender for prosecution and therefore point (d) of the EAW was not completed by the issuing judicial authority. In these circumstances, the Court is satisfied that his surrender is not prohibited under s. 45 of the Act of 2003 which deals with trials in absentia.

Section 38 of the Act of 2003

10 I am satisfied that the ticking of the box marked "fraud" by the issuing judicial authority indicating reliance on Article 2(2) of the 2002 Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States ('the Framework Decision') is not manifestly incorrect. I am also satisfied that the provisions of minimum gravity have been met. Therefore his surrender is not prohibited by s. 38 of the Act of 2003.

The Points of Objection

Section 37 of the Act of 2003

11 The respondent objected to his surrender as he maintained that his surrender would be a violation of s. 37 of the Act of 2003. The respondent submitted that his surrender was prohibited because his rights under the Constitution and under the Convention would be violated on two grounds. The first was by reason of the inhuman and degrading treatment that he may be subjected to on his surrender to Northern Ireland. He also submitted that his family and personal rights would be violated as a result of the surrender.

12 The respondent is a 57 year old man who has resided in Cork his entire life. He resides in assisted living accommodation provided by the Housing Association. He has been on disability allowance for about 30 years in circumstances where he contracted polio as a baby. This has caused him significant difficulty since his youth and he has had a number of operations on his legs. His mobility is impaired. He has three sisters, two of whom reside in Cork. He also has four children, three of whom reside in Cork. He says that, owing to his illness, he receives a significant level of support from his sisters and children, particularly when his mobility is affected by his illness. He also said the proceedings were causing him significant anxiety and stress over the fear that he might be separated from his sisters and children.

13 He relied on a GP's report which confirmed that he had polio, significantly affecting his left lower leg causing weakness and pain. He has been left with a pronounced limp, and in 2011 a hospital clinician had stated that he was significantly negatively affected by his polio and this was likely to worsen as time progresses. The GP also stated that he had chronic anxiety and had been taking an anxiolytic drug namely diazepam for years. He did not appear to have received any other non-therapeutic help for that condition. He has high cholesterol for which he takes a statin drug. He also has a diagnosis of peripheral arterial disease which causes him pain in his lower legs even when walking short distances, and may require invasive surgical intervention in the near future if he redevelops loss of blood supply to his toes.

Article 8 of the European Convention on Human Rights ('ECHR')

14 The respondent objected to his surrender on the grounds that it would be a disproportionate interference with his family life to surrender him. In my view this is an argument that can be dismissed in a summary manner in accordance with the decision of the Supreme Court in Minister for Justice and Equality v. J.A.T. (No 2) (2016) IESC 17 where O'Donnell J stated:

'In any future case, where all or any of the above factors [ repeat application, lapse of time, delay, impact on the appellant's son, and knowledge on the part of the requesting and executing authorities of those factors] may be relied on, it would not, in my view, be necessary to carry out any elaborate factual analysis or weighing of matters unless it is clear that the facts come at least close to a case which can be said to be truly exceptional in its features. Even in such cases, which must be rare, it is important that the considerations raised are scrutinised rigorous.'

15 Although the EAW does not concern allegations of violence, the offences are relatively serious, carrying penalties of seven years each. Any delay since the date of the alleged offences can only have been contributed to by the failure of the respondent to appear at the PSNI station as required under his bail. The fact that he failed to appear adds to the public interest in ensuring that he is surrendered. Overall there is a relatively high public interest in his surrender.

16 On his family side, his private family interests as set out above are no more difficult or different from the expected disruption of a person's life by virtue of the extradition process. A similar situation arises with respect to his disability. There is nothing particularly harmful,...