Minister for Justice and Equality v Duffy

JurisdictionIreland
JudgeMs. Justice Donnelly
Judgment Date04 March 2019
Neutral Citation[2019] IEHC 127
CourtHigh Court
Docket Number[2016 No. 235 EXT]
Date04 March 2019
BETWEEN
MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
DECLAN DEREK DUFFY
RESPONDENT

[2019] IEHC 127

[2016 No. 235 EXT]

THE HIGH COURT

European Arrest Warrant – Surrender – Abuse of process – Applicant seeking the surrender of the respondent in accordance with the provisions of the European Arrest Warrant Act 2003 – Whether there was clarity as to the sentence which the respondent was serving

Facts: The respondent, Mr Duffy, on the 22nd July, 2010, pleaded guilty to an offence of murder at Stafford Crown Court, England. He was sentenced to life imprisonment with a minimum tariff of 24 years. He was subsequently transferred to serve his sentence in HMP Maghaberry in Northern Ireland. On the 11th March, 2013, the respondent was released on licence under s. 6 of the Northern Ireland (Sentences) Act 1998. This legislation was implemented in pursuance of the Good Friday Agreement to deal with “qualified prisoners”. One of the conditions of his release was that he would not become a danger to the public. On the 5th December, 2015, the respondent was arrested by An Garda Síochána on suspicion of having committed an offence of false imprisonment on the 9th June, 2015, in Dublin. He was subsequently charged with violent disorder and three counts of false imprisonment. He was remanded in custody. On the 9th February, 2016, the Under-Secretary of State for Northern Ireland suspended the respondent’s licence and recalled him to prison. On the 20th September, 2016, the European Arrest Warrant issued. The respondent was arrested on the 17th October, 2016 pursuant to the European Arrest Warrant. The application for surrender in accordance with the provisions of the European Arrest Warrant Act 2003 was adjourned from time to time at the request of the respondent. These included time to allow him to prepare his defence, to prepare for his trial and also for a period during which the Court of Justice of the European Union was asked to consider an issue arising out of the notice given by the United Kingdom of Great Britain and Northern Ireland under Article 50 of the Treaty on European Union of withdrawal from the European Union (Brexit). In the interim period, the respondent took part in a review of his case by the Sentence Review Commissioners of Northern Ireland. His sentence was duly revoked. This case raised a number of issues concerning, inter alia, the effect of a “suspension” of a licence, whether there was clarity as to the sentence which the respondent was serving, abuse of process, oppression and personal rights claims and the effect of Brexit on the Good Friday Agreement.

Held by the High Court (Donnelly J) that it rejected each of the points of objection of the respondent.

Donnelly J held that she would order the surrender of the respondent to such a person as was duly authorised by the issuing state to receive him.

Application granted.

JUDGMENT of Ms. Justice Donnelly delivered on the 4th day of March, 2019
Background
1

On the 22nd July, 2010, the respondent pleaded guilty to an offence of murder at Stafford Crown Court, England. He was sentenced to life imprisonment with a minimum tariff of 24 years. He was subsequently transferred to serve his sentence in HMP Maghaberry in Northern Ireland. On the 11th March, 2013, the respondent was released on licence under s. 6 of the Northern Ireland (Sentences) Act, 1998. This legislation was implemented in pursuance of the Good Friday Agreement to deal with ‘qualified prisoners’. One of the conditions of his release was that he would not become a danger to the public.

2

On the 5th December, 2015, the respondent was arrested by An Garda Síochána on suspicion of having committed an offence of false imprisonment on the 9th June, 2015, in Dublin. He was subsequently charged with violent disorder and three counts of false imprisonment. He was remanded in custody. On the 9th February, 2016, the Under-Secretary of State for Northern Ireland suspended the respondent's licence and recalled him to prison. On the 20th September, 2016, the European Arrest Warrant (‘EAW’) issued.

3

The respondent was arrested on the 17th October, 2016 pursuant to the European Arrest Warrant. The application for surrender in accordance with the provisions of the European Arrest Warrant Act 2003 as amended (‘the Act of 2003’) was adjourned from time to time at the request of the respondent. These included time to allow him prepare his defence to these proceedings, to prepare for his trial in this jurisdiction and also for a period during which the Court of Justice of the European Union (‘the CJEU’) was asked to consider an issue arising out of the notice given by the United Kingdom of Great Britain and Northern Ireland (‘the UK’) under Article 50 of the Treaty on European Union (‘TEU’) of withdrawal from the European Union (‘Brexit’).

4

In the interim period, the respondent took part in a review of his case by the Sentence Review Commissioners (‘SRC’) of Northern Ireland. He appeared by way of video link from custody in this jurisdiction at the hearing before the Commissioners. His sentence was duly revoked.

5

This case raises a number of issues concerning, inter alia, the effect of a ‘suspension’ of a licence, whether there is clarity as to the sentence which the respondent is serving, abuse of process, oppression and personal rights claims and the effect of Brexit on the Good Friday Agreement.

S. 16 of the European Arrest Warrant Act 2003, as amended
6

In all applications for surrender pursuant to the Act of 2003, the High Court must consider whether the requested person's surrender is prohibited by any subsection of s. 16(1) of the said Act.

Identity
7

I am satisfied on the basis of the information contained in the EAW and the affidavit of the respondent and his solicitor, that the respondent who appears before me is the person in respect of whom the EAW has issued.

Endorsement
8

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

S. 21A, 22, 23 and 24 of the Act of 2003
9

Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the respondent's surrender under any of the above provisions of the Act of 2003.

Part 3 of the Act of 2003
10

Subject to further consideration of s. 37, s.38, s. 39 and s. 45 of the Act of 2003, having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.

Section 38
11

Under the provisions of s. 38(1)(b) of the Act of 2003, surrender is not prohibited if the offence for which surrender is sought has been designated as a list offence (within the meaning of Article 2, para. 2 of 2002/584/JHA Council Framework Decision on the European Arrest Warrant (‘the 2002 Framework Decision’) and is an offence of the required minimum gravity (three years). In the EAW, the issuing judicial authority has ticked the box of ‘Murder’. The circumstances in which the offence was committed are set out in part E. He murdered Michael Newman, a British Army sergeant, on the 14th April, 1992, by shooting him at a car park in Derby city centre. He pleaded guilty to this offence.

12

At part C 2 of the warrant it is stated that the length of the custodial sentence or detention order imposed was ‘Life imprisonment with a minimum tariff of 24 years.’ In the circumstances, his surrender is not prohibited under the provisions of s. 38 of the Act of 2003.

Section 45
13

S. 45 prohibits surrender in circumstances where a person was not present at their trial unless certain conditions have been met. In the present case, the issuing judicial authority have indicated at part D1 that the respondent appeared in person at the trial resulting in the decision. Therefore, his surrender is not prohibited by the provisions of s. 45 of the Act of 2003.

Section 11 – Sentence Immediately Enforceable?
14

Although not contained within the subsections of s. 16, s. 11, together with s. 10, provides the legislative basis underpinning the surrender procedures in this jurisdiction. Section 10 provides that where a judicial authority in an issuing state issues a European Arrest Warrant in respect of a person inter alia, ‘against whom that state intends to bring proceedings for the offence to which the European Arrest Warrant relates’ that person shall subject to and in accordance with the provisions of the Act, be arrested and surrendered to the issuing state.

15

Section 11(1) of the Act of 2003 requires that: -

‘A European Arrest Warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision as amended by Council Framework Decision 2009/299/JHA.’

Section 11(1A)(e) provides that a European Arrest Warrant shall specify: -

‘that a conviction, sentence or detention order is immediately enforceable against the person, …’

16

In the present case, the respondent objected to surrender on the basis of a claim that the sentence was not immediately enforceable against him at the time of the issue of the European Arrest Warrant. The respondent pointed to the statement in the warrant that the judgment of Stafford Crown Court of the 22nd July, 2010, was an enforceable judgment. The respondent submitted that the obligation on him to recommence serving his life sentence in Northern Ireland was conditional on the Sentence Review Commissioners (‘SRC’) revoking the respondent's licence. He submitted that such a decision had not been taken at the time of issue of the European Arrest Warrant.

17

The respondent accepted that on the date of the hearing of the s. 16 application, the sentence was immediately enforceable. This was because his licence had been revoked by the SRC by the date of the hearing. He submitted however, that the date relevant to these proceedings is the date...

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2 cases
  • Minister for Justice & Equality v Vestartas
    • Ireland
    • Supreme Court
    • 2 April 2020
    ...the legislation, and that this judgment was at variance from other High Court judgments (see, Minister for Justice and Equality v. Duffy [2019] IEHC 127 and Minister for Justice, Equality and Law Reform v. Dunkova [2011] IEHC 36, where Irish courts had refused to have regard to such matters......
  • Minister for Justice & Equality v Vestartas
    • Ireland
    • Supreme Court
    • 2 April 2020
    ...the legislation, and that this judgment was at variance from other High Court judgments (see, Minister for Justice and Equality v. Duffy [2019] IEHC 127 and Minister for Justice, Equality and Law Reform v. Dunkova [2011] IEHC 36, where Irish courts had refused to have regard to such matters......

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