Minister for Justice and Equality v S.F.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 15 February 2016
• Neutral Citation: [2016] IEHC 81
• Court: High Court
• Docket Number: Record No. 2014/231 EXT
• Date: 15 February 2016

BETWEEN:

MINISTER FOR JUSTICE AND EQUALITY

Applicant

-and-

S.F.

Respondent

[2016] IEHC 81

Donnelly J.

Record No. 2014/231 EXT

THE HIGH COURT

Extradition – The European Arrest Warrant Act 2003 – Description of offence – Art. 8 of the European Convention on Human Rights – Public interest

Facts: The applicant sought an order for the surrender of the respondent to the requesting state on the basis of the execution of the European Arrest Warrant in order to serve a sentence in relation to three offences. The respondent objected that his surrender was prohibited due to non-compliance with s. 38, s. 11 (1A) (f), s. 44, and s. 11 (1A) (e) of the European Arrest Warrant Act 2003. The respondent contended that his surrender was in breach of art. 8 of the European Convention on Human Rights (ECHR).

Ms. Justice Donnelly granted an order for the surrender of the respondent. The Court held that a detailed description of the offences committed by the respondent was set out in the EAW that he knowingly helped in the transportation of smuggled items, from which an intention to defraud could be inferred though the expressed words 'intent to defraud' were missing from the EAW. The Court found that there was sufficient compliance with the provisions of s. 11 (1A) (f) as the nature of the individual offence, time of commission of the offence, and the circumstances under which it was committed had been provided in the EAW. The Court held that there was ample evidence that the alleged offence was committed in the state of France and a similar offence had been provided under s. 71 of the Criminal Justice Act, 2006, equivalent of the offence that the respondent committed, and thus, there was compliance with s. 44 of the Act of 2003. The Court held that the engagement with art. 8 of the ECHR would be of no avail to the respondent as any disproportionate interference in family life should be weighed against the public interest leaning in favour of the surrender. The Court held that the requirement under s. 11 (1A) (e) of the Act of 2003 that the EAW should specify that the conviction, sentence, or detention order was immediately enforceable in the absence of an express provision to that effect was satisfied by an indication by the issuing judicial authority that it was an enforceable judgment in the prescribed format given therein.

JUDGMENT of Ms. Justice Donnelly delivered on the 15th day of February, 2016.

1 A European Arrest Warrant ('EAW') has issued from France seeking the surrender of the respondent to serve a sentence in respect of three offences. This current EAW is the second one to have been issued by a judicial authority in France and endorsed by the High Court in relation to this respondent. The first EAW was issued on 25th June, 2012 by the Public Prosecutor's Office of the Regional Court of Lille, an issuing judicial authority in France. The surrender of the respondent was sought for the purposes of criminal prosecution. This EAW was endorsed by the High Court on 18th December, 2012 with the respondent's arrest executed by arrangement on 14th May, 2014. However, this EAW was subsequently withdrawn by the issuing judicial authority, the endorsement of the EAW was cancelled and the proceedings were struck out on 18th November, 2014.

2 The present EAW issued from the same issuing judicial authority on 3rd June, 2014. This is a conviction type EAW; it now refers to the enforceable judgment delivered on 30th January, 2014 in which a custodial sentence of three years imprisonment was imposed on the respondent. This EAW was endorsed by the High Court on 18th November, 2014. The respondent was arrested on that date and brought before the High Court and admitted to bail. The respondent's brother, D.F., was also sought by France on an identical EAW in identical circumstances. A separate judgment has been delivered in respect of Mr. D.F. dated February 8th, 2016. The cases had been heard together and counsel had adopted each other's submissions, save where the individual circumstances were different.

The Offences Set Out in the European Arrest Warrant

3 The EAW relates to three offences, the details of which are outlined in the EAW, in the additional information from the issuing judicial authority received on 12th and 29th October, 2015 and in the additional information provided by means of the judgment of the Court of Appeal convicting and sentencing the respondent. The legal categorisation of these offences are as follows:

Offence 1: Complicity of smuggling of prohibited or heavily taxed goods as part of an organised group.

Offence 2: Complicity of attempted undeclared exportation of prohibited or heavily taxed goods committed as part of an organised group.

Offence 3: Participation in a conspiracy with the aim of preparing an offence punished by 10 years imprisonment.

4 Further details of the three offences are described in the following terms at point (e) of the EAWs:

'On 5th March 2010, [J.P.B] was arrested in Veys while driving a lorry which transported 5 tons of smuggled cigarettes. He had loaded these goods in the region of Paris and headed for Cherbourg to embark to Ireland. He was not in possession of the customs documents provided for by the law. This driver, which was employed by [redacted], a company located at [redacted] (Ireland) and managed by S. and D.F., did not cooperate with the investigation and gave up several false and contradictory versions. The ferries had been reserved by his bosses who had stayed in contact with him during the transport carried out with a lorry belonging to the company. Heard by the Irish police, S. and D.F. declared not to know anything about these smuggled goods and having sent their driver to deliver apples and bring some cheese. However, certain contradictions and lies were highlighted in their version of the facts. S. and D.F. were both summoned by registered letter in order to be investigated in France. The letter explained to them that in case of non-appearance, they will be the target of a European arrest warrant. After having instructed a lawyer and made the date of appearance postponed for supposed health problems, the two F. brothers declared through an Irish lawyer that they refused to appear in France.'

Points of Objection

5 The respondent's case was adjourned from time to time to enable him to obtain material in support of his points of objection. Initial points of objection were filed in March 2015 and an additional point of objection was filed in June 2015. These points of objection required further consideration by the central authority.

6 The respondent opposes his surrender on the following grounds which can be summarised as follows:

a) Non compliance with s. 38 of the Act of 2003 regarding the ticking of the box pursuant to Article 2 para. 2 of the Framework Decision and the issue of correspondence of offences;

b) Non compliance with s. 11(1A)(f) of the Act of 2003

c) Non compliance with s. 44 of the Act of 2003 (extra territoriality)

d) Abuse of process

e) Breach of Article 8 ECHR rights under s. 37 of the Act of 2003.

f) Non compliance with s. 10 and s. 11 (1A)(e) of the Act of 2003 as the decision on which the EAW is based is not immediately enforceable.

Section 16 of the Act of 2003, as amended

Uncontroversial Issues

7 I am satisfied that the Minister for Foreign Affairs has, by the European Arrest Warrant Act 2003 (Designated Member States) Order 2004 ( S.I. No. 130 of 2004), designated France as a Member State that has, under its national law, given effect to the Framework Decision of 13th June, 2002 on the European Arrest Warrant and surrender procedures between Member States ('the 2002 Framework Decision').

8 I have scrutinised the EAW, the additional documentation and the affidavit of Sergeant Seán Fallon of An Garda Síochána and I am satisfied based on the information contained therein, that S.F. is the person in respect of whom the EAW has been issued.

9 I am satisfied that the EAW has been endorsed in accordance with s. 13 of the European Arrest Warrant Act 2003, as amended, ('the Act of 2003') for execution.

10 At point (d)(2) of the EAW, the issuing judicial authority has indicated that 'no, the person did not appear in person at the trial resulting in the decision' and consistent with this, they have also ticked point (d)(3.4) indicating that the respondent, if surrendered, will have a right to a retrial or appeal. Point (d) of each EAW has therefore been duly completed. I am satisfied that the surrender of the respondent is not prohibited by s. 45 of the Act of 2003.

11 I am satisfied that I am not required to refuse the respondent's surrender under sections 21A, 22, 23 or 24 of the Act of 2003, as amended.

12 Apart from further considerations of s. 37, s. 38 and s. 44, I am satisfied that the respondent's surrender is not prohibited by any other section contained in Part 3 of the Act of 2003, as amended.

Section 38 of the Act of 2003

Article 2 Paragraph 2

13 In initial written submissions, the respondent claimed a lack of clarity about what, if any, offence was being relied upon by the issuing judicial authority. Under point (e) II of the EAW, which is headed 'full description of the offence(s) not covered by section I above', it states that:

'The possession, the transport and the exportation (or attempted exportation) of heavily taxed goods as cigarettes, without these goods being declared and taxes being settled, constitute the customs offence of smuggling. When the smuggling is committed as part of an organized group, the penalties imposed are 10 years of imprisonment. Becoming an accomplice, either through help and assistance or through issuing of instructions, is punished as the main offence.'

14 By additional information, in response to a query by the central authority, the issuing judicial authority confirmed...