Minister for Justice and Equality v Kenneth Brunell

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 21 February 2014
• Neutral Citation: [2014] IEHC 131
• Judgment citation (vLex): [2014] 2 JIC 2109
• Court: High Court
• Date: 21 February 2014

[2014] IEHC 131

THE HIGH COURT

Record No: 259 EXT/2011

Min for Justice v Brunell

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003, AS AMENDED

BETWEEN:

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

-and-

KENNETH BRUNELL

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

COUNCIL FRAMEWORK DECISION 13.6.2002 2002/584/JHA ART 2 PARA 2

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21(A)

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) (NO 4) ORDER 2001 SI 400/2004

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S11(F)

COUNCIL FRAMEWORK DECISION 13.6.2002 2002/584/JHA ART 1

COUNCIL FRAMEWORK DECISION 13.6.2002 2002/584/JHA ART 6

EUROPEAN ARREST WARRANT ACT 2003 S37

CONSTITUTION ART 40.3

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

CRIMINAL JUSTICE ACT 1999 S4(E)

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(E)

EUROPEAN ARREST WARRANT ACT 2003 S11(3)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S72(C)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79

OLSSON v MIN FOR JUSTICE 2011 1 IR 384 2011 2 ILRM 395 2011/43/12423 2011 IESC 1

MIN FOR JUSTICE v BAILEY UNREP SUPREME 1.3.2012 2012/25/7268 2012 IESC 16

MIN FOR JUSTICE v CONNOLLY UNREP EDWARDS 6.12.2012 2012 IEHC 575

MIN FOR JUSTICE v HOLDEN UNREP EDWARDS 11.2.2013 2013 IEHC 62

MIN FOR JUSTICE v JOCIENCE UNREP EDWARDS 31.5.2013 2013 IEHC 290

MIN FOR JUSTICE v E (T) UNREP EDWARDS 19.6.2013 2013 IEHC 323

MIN FOR JUSTICE & EQUALITY v QUILLIGAN UNREP EDWARDS 26.7.2013 2013 IEHC 452

EUROPEAN ARREST WARRANT ACT 2003 S21(A)(2)

COUNCIL FRAMEWORK DECISION 13.6.2002 2002/584/JHA ART 6(1)

MINISTRY OF JUSTICE OF LITHUANIA v BUCNYS 2014 2 AER 235 2013 3 WLR 1485 2013 UKSC 71 2013 AER (D) 222 (NOV)

TRIMBOLE, STATE v GOVERNOR OF MOUNTJOY PRISON 1985 IR 550

MIN FOR JUSTICE v TOBIN UNREP SUPREME 19.6.2012 2012/28/8166 2012 IESC 37

QUINN, STATE v RYAN 1965 IR 70

MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148 2006/39/8296 2006 IESC 23

SHANNON v IRELAND 1984 IR 548

MIN FOR JUSTICE v MCARDLE 2005 4 IR 260 2006 1 ILRM 263 2005/38/7955 2005 IESC 76

MIN FOR JUSTICE v BRENNAN 2007 IR 3 732 2007/40/8282 2007 IESC 21

ASSANGE v SWEDISH PROSECUTION AUTHORITY 2012 4 AER 1249 2012 2 AC 471 2012 2 WLR 1275 2013 1 CMLR 4 2012 UKSC 22

EXTRADITION ACT 2003 S2(2) (UK)

DAMACHE v DPP & ORS 2012 2 IR 266 2012 2 ILRM 153 2012/9/2413 2012 IESC 11

OFFENCES AGAINST THE STATE ACT 1939 S29

CRIMINAL PROCEEDINGS AGAINST PUPINO, IN RE 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142 2005 ECR I-5285 2005 2 CMLR 63

EUROPEAN ARREST WARRANT ACT 2003 S2(1)

EUROPEAN ARREST WARRANT ACT 2003 S33

EUROPEAN ARREST WARRANT ACT 2003 S33(1)

MIN FOR JUSTICE v ALTARAVICIUS (NO 2) 2007 2 IR 265 2006/39/8325 2006 IEHC 270

EUROPEAN CONVENTION ON EXTRADITION 13.12.1957 ART 1

EUROPEAN CONVENTION ON EXTRADITION 13.12.1957 ART 12(2)

EUROPEAN CONVENTION ON EXTRADITION ORDER 2001 SI 962/2001 ART 3 (UK)

EUROPEAN CONVENTION ON EXTRADITION ORDER 2001 SI 962/2001 ART 12 (UK)

CONVENTION IMPLEMENTING THE SCHENGEN AGREEMENT OF 14.6.1985 ART 98

CONSTITUTION ART 40.4.2

MIN FOR JUSTICE & ORS v FERENCA UNREP PEART 24.5.2007 2007 IEHC 199

Extradition Law - European Arrest Warrant - Refusal to surrender - Offence of Homicide contrary to the Dutch Penal Code - Issue of Summons to appear in District Court of Amsterdam - Whether Respondent wanted for questioning or prosecution - Whether Public Prosecutor is a Judicial Authority - Abuse of Court Process

Facts: The Respondent was the subject of a European Arrest Warrant issued by the Netherlands, which sought the rendition of the Respondent for the purpose of prosecuting him as one of 3 persons sought for the offence of Homicide. The Respondent was arrested, remanded in bail and the matter progressed to that of a Surrender Hearing. The Respondent did not consent to his surrender to the Netherlands and asked the Court to make an order directing that he be surrendered to such duly authorised person by the issuing State. The Respondent objected to the validity of the European Arrest Warrant, as to whether the Court had the jurisdiction to make an Order directing that he be surrendered and submitted that to surrender him would amount to a breach of his constitutional rights and amount to an abuse of process.

The Court considered the relevant statutory provisions such as s. 21A of the European Arrest Warrant Act 2003, where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with and try him or her for that offence in the issuing state. Judge Mr Justice Edwards considered whether the Judicial Authority had exercised bad faith in the issue of the Summons and submitted the onus of proving that decisions to both charge and try the Respondent had not been taken at the time that the European arrest warrant was issued rests upon the Respondent. Judge Mr Justice Edwards considered the evidence and held the Judicial Authority had not acted in a way so as to frustrate the Irish Court”s process and that the Prosecutor”s preference was actually to delay charging the Respondent. He held that it had not been established that at the time at which the European Arrest Warrant was issued a decision had not been made to charge the Respondent with and try him in the issuing state for the offence to which the warrant relates. Further, he held that the Court is not obliged by the terms of s. 21A to refuse to surrender the Respondent. Judge Mr Justice Edwards held that no abuse of process had been proven and that the evidence did not establish that the Prosecutor was untruthful in suggesting to this Court that he had at all times an intention to charge and try the Respondent and his co-accused. The Court also considered whether the European Arrest Warrant was not issued by a Judicial Authority and/or is not a judicial decision within the Framework Decision and held the Judicial Authority issued both the domestic and European arrest warrant; that the Prosecutor was entitled to authorise the arrest of a suspect under article 54 of the Dutch Code of Criminal Procedure, that Dutch law does not specifically require such warrant) to be in writing and that the Prosecutor himself says he gave an oral permission to the Police to arrest the Respondent.

1 JUDGMENT of Mr Justice Edwards delivered on the 21st day of February, 2014.

Introduction:

2 The respondent is the subject of a European arrest warrant issued by Mr. M.E. Woudman, Public Prosecutor (Officier van Justitie) at the Public Prosecutor's Office in Amsterdam (Openbaar Ministerie Amsterdam), Netherlands on the 6 ^th July, 2011. The Kingdom of the Netherlands (hereinafter "the Netherlands") seeks the rendition of the respondent on foot of this warrant for the purposes of prosecuting him for a single offence as particularised therein. The warrant was endorsed by the High Court for execution in this jurisdiction on the 27 ^th July, 2011, and it was duly executed on the 3 ^rdOctober, 2011. The respondent was arrested by Sergeant Sean Fallon on that date, following which he was brought before the High Court later on the same day pursuant to s.13 of the European Arrest Warrant Act 2003 (hereinafter "the Act of 2003"). In the course of the s. 13 hearing a notional date was fixed for the purposes of s. 16 of the Act of 2003 and the respondent was remanded on bail to the date fixed. Thereafter the matter was adjourned from time to time, ultimately coming before the Court for the purposes of a surrender hearing.

3 The respondent does not consent to his surrender to the Netherlands. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s.16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive him. The Court must consider whether the requirements of s.16 of the Act of 2003, both controversial and uncontroversial, have been satisfied and this Court's jurisdiction to make an order directing that the respondent be surrendered is dependent upon a judicial finding that they have been so satisfied.

Uncontroversial s.16 issues

4 The Court has received and has scrutinised a true copy of the European arrest warrant in this case.

5 The Court has also received an affidavit of Sergeant Sean Fallon sworn on the 19 ^th November, 2012, testifying as to his arrest of the respondent. He states at para. 3 of his affidavit that the man that he arrested answered to the name Kenneth Brunell. In addition, counsel for the respondent has confirmed that no issue arises as to either the arrest or identity.

6 Further, the Court has taken the opportunity to inspect the original European arrest warrant which is on the Court's file and which bears this Court's endorsement.

7 I am satisfied following my consideration of these matters that:

8 (a) The European arrest warrant was endorsed for execution in this state in accordance with s.13 of the Act of 2003;

9 (b) The warrant was duly executed;

10 (c) The person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

11 (d) The warrant is in the correct form;

12 (e) The warrant purports to be a prosecution type warrant and the respondent is wanted in the Netherlands for trial in respect of the offence particularised in Part E of the warrant;

13 (f)...