Minister for Justice and Equality v Martin

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 28 October 2016
• Neutral Citation: [2016] IEHC 798
• Docket Number: 2015 No. 215 EXT 2014 No. 244 EXT
• Court: High Court
• Date: 28 October 2016

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

A.M.

RESPONDENT

AND

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

ROBERT DONOVAN

RESPONDENT

[2016] IEHC 798

2015 No. 215 EXT

2014 No. 244 EXT

THE HIGH COURT

Extradition – The European Arrest Warrant Act, 2003 – Surrender of person requested – Certification – Risk of fundamental rights – Impact of UK on exit from EU – Point of exceptional public importance – Framework Decision

Facts: The applicants in both the proceedings sought leave to file an appeal to the Court of Appeal on the basis that the question formulated by them involved a point of law of exceptional public importance. The Court had earlier granted orders for the extradition of the applicants to the United Kingdom (UK). The applicants had raised the question as to whether the presumption under s. 4A of the European Arrest Warrant Act 2003 still applied to the effect that the UK would continue to comply with its obligations under the Framework Decision, given the facts that the UK had indicated to leave the EU.

Ms. Justice Donnelly refused to grant certifications to the applicants. The Court held that it was bound to presume that the Courts in the UK would comply with the provisions of Framework Decisions unless contrary to that was shown. The Court found that the applicants did not show any exceptional circumstance that would warrant the grant of certification. The Court held that there was no legal uncertainty in that regard and the assertion of the applicants that their fundamental rights would be at risk was baseless as the applicants did not adduce any evidence in support of their assertions. The Court held that there should have been substantial grounds for making a case for granting leave to appeal to the Court of Appeal.

JUDGMENT of Ms. Justice Donnelly delivered the 28th day of October, 2016.

1 This Court delivered a reserved judgment on 14th October, 2016 in Minister for Justice and Equality v. A.M. [2016] IEHC 568. On the same date, the Court gave an ex tempore judgment in the case of Minister for Justice and Equality v. Robert Donovan [2016] IEHC 567. Although the cases were argued from a slightly different angle, the central point of objection in each case was that the surrender of the respondent should be refused, adjourned or postponed in light of the result of the referendum in the United Kingdom of Great Britain and Northern Ireland (‘the U.K.’) in favour of existing from the European Union (‘the E.U.’). The Court rejected each respondent's points of objection and indicated an intention to surrender each respondent in accordance with s. 16 of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’).

2 The respondent A.M., now seeks certification for appeal to the Court of Appeal, on one question, namely:

“Should the surrender of the Respondent to the United Kingdom be refused, adjourned or postponed in light of the result of the referendum in the United Kingdom favouring an exit from the European Union in circumstances where the parameters of any such exit have not been delineated and in circumstances in which the allegations date back approximately 56 years and relate to a complainant who alleges that the first instant of sexual abuse occurred when she was approximately two-years-old?”

3 The respondent Donovan now seeks certification for appeal to the Court of Appeal, on one question, namely:

‘The United Kingdom, following the referendum to leave the European Union, has indicated that it intends to invoke Article 50 of the Treaty of the European Union by March 2017. The triggering of the Article 50 of the Treaty of the European Union commences the process of withdrawal of the United Kingdom from the European Union [which can take up to two years unless extended by agreement from the other Member States]. In the circumstances, where the United Kingdom will no longer be a Member State, and will therefore not be a party to the Framework Decision and will therefore not under its national laws give effect to the Framework Decision as a Member State, can this Honourable Court presume pursuant to section 4A of the European Arrest Warrant Act 2003 that the issuing state will comply with its obligations under the Framework Decision?’

4 In circumstances where the central issue is the same and where the arguments on the application for leave to appeal were heard together, it is appropriate to give a composite judgment. The Court has heard, and is grateful for, the written and oral submissions of counsel in each case.

Approach to be taken to Section 16(11) of the Act of 2003

5 The parties agree that the law is well established on the approach of the High Court to an application for a certification that the Order or Decision of the High Court involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken. There was a slightly different emphasis placed by counsel on various judgments but, in the view of the Court, the following is a correct statement of the law as regards an application for certification in a decision under the Act of 2003.

6 Section 16(11) of the 2003 Act provides as follows:

“An appeal against an order under subsection ( 1) or (2) or a decision not to make such 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.”

7 In the aftermath of the creation of the Court of Appeal, the appeal is now to be taken to the Court of Appeal in the ordinary manner. It is accepted that before these respondents can bring an appeal, the onus rests upon them to satisfy the court that the decision involves a point of law of exceptional public importance and also that it is desirable in the public interest that an appeal be taken.

8 These restrictions on the right to appeal also apply in the area of planning law and immigration law. The principles of law which have been set out in judgements of the High Court when considering the question of certification in such areas also apply when this Court is determining whether or not to grant a certificate to allow an appeal under s. 16(11) of the Act of 2003.

9 The minister has submitted that the approach to be adopted by a court when considering whether a point of law advanced by a proposed appellant is 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” has been set out in the following cases:

i. Vadim Raiu v. Refugee Appeals Tribunal and Others (Unreported, High Court, Finlay Geoghegan J., 26th February 2003);

ii. Glancré Teoranta v. An Bord Pleanála and Mayo County Council [2006] IEHC 250;

iii. Arklow Holidays Limited v. An Bord Pleanála and Others [2007] 4 I.R. 112.

10 As stated above, the respondents agree in principle that the law is as set out in those cases. In the Glancré Teoranta case, MacMenamin J. stated that he was satisfied, following a review of various authorities including Raiu and Arklow Holidays, that the following principles were applicable in a consideration of whether or not to certify a point of law of exceptional public importance arose:

“1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the Courts to administer that law not only in the instant, but future such cases.

4. Where leave is refused in an application for Judicial Review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny).

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the Court (Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’.

8. Normal rules of statutory construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.

9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an Applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an Appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases”.

11 In Minister for Justice and Equality v. Kasprowicz [2013] IEHC 531, when considering the correct approach as to whether or not a certificate under s. 16(11) of the 2003 Act should issue, Edwards J. stated at para. 9 as follows:

‘ The general approach to be taken is that identified by Clarke J. in Arklow Holidays v. An Bord Pleanala [2007] 4 I.R. 112as being appropriate in considering, as in that case, whether to grant leave to appeal a decision of the High Court to the Supreme Court under s....