Minister for Justice and Equality v Khan; Minister for Justice and Equality v Khan
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 01 February 2016 |
| Neutral Citation | [2016] IEHC 812 |
| Docket Number | [2015 Nos. 228 & 232 Ext],2015 No. 228 EXT 2015 No. 232 |
| Court | High Court |
| Date | 01 February 2016 |
[2016] IEHC 812
2015 No. 228 EXT
2015 No. 232
THE HIGH COURT
European arrest warrant – European Arrest Warrant Act 2003 s. 29 – Statutory functions – Parties seeking determination of a question – Whether s. 29 of the European Arrest Warrant Act 2003 requires the High Court to exercise a choice between European Arrest warrants with regard to the performance of statutory functions
Facts: A District Judge of Northern Ireland, on 15th October, 2015, issued a European arrest warrant (EAW) for the purpose of conducting a criminal prosecution against the respondent, Mr Khan. He was sought on five counts of alleged fraud accusing him of dishonestly making false representations that he was an employee of a company concerned with online money payment, with the intention by making the representation to make a gain for himself or another or to cause loss to others. The Northern Ireland EAW was endorsed by the High Court on 19th October, 2015. On 22nd October, 2015, a District Judge in Leeds issued an EAW for the purposes of conducting a criminal prosecution against the respondent in relation to two offences of conspiracy to defraud. These were allegations of a conspiracy involving similar false representations, relating to being an account holder and agent of Western Union. The Leeds EAW was endorsed for execution by the High Court on 27th October, 2015. On 19th October, 2015, Mr Khan was arrested in relation to the Northern Ireland EAW. On 3rd November, 2015, he was arrested on the Leeds EAW. The question for determination by the High Court was whether s. 29 of the European Arrest Warrant Act 2003 requires the High Court to exercise a choice between these EAWs with regard to the performance of statutory functions.
Held by Donnelly J that she could perform her functions over both EAWs and she decided to exercise her function over both. Donnelly J held that there was no basis for prohibiting the respondent's surrender on the Northern Ireland EAW. She considered that under s. 16(1) of the 2003 Act, she could make an order for the delivery of the respondent to such other person as was duly authorised by the issuing state to receive him.
Donnelly J held that, in respect of the Leeds EAW, from a perusal of the EAW, there was no apparent basis for prohibiting the respondent's surrender to Leeds. Donnelly J noted that he had not yet given his formal consent in writing to surrender on that EAW and the Court would proceed to hear from him in that regard prior to making a final determination on surrender under s. 15 of the 2003 Act.
Judgment approved.
A novel point concerning the interpretation of s. 29 (1) of the European Arrest Warrant, 2003, as amended ('the Act of 2003'), has arisen in this case. Two European Arrest Warrants ('EAW') have issued from two separate jurisdictions in the United Kingdom ('U.K.'). The question for determination is whether s. 29 of the Act of 2003, as amended, requires the High Court to exercise a choice between these EAWs with regard to the performance of statutory functions.
On 15th October, 2015, a judicial authority of the U.K., (a District Judge of Northern Ireland) issued an EAW ('the Northern Ireland EAW') for the purpose of conducting a criminal prosecution against the above named respondent. He is sought on five counts of alleged fraud accusing him of dishonestly making false representations that he was an employee of a company concerned with online money payment, with the intention by making the representation to make a gain for himself or another or to cause loss to others. The Northern Ireland EAW was endorsed by this Court on 19th October, 2015.
On 22nd October, 2015, another judicial authority of the U.K., this time a District Judge in Leeds, issued an EAW ('the Leeds EAW') for the purposes of conducting a criminal prosecution against him in relation to two offences of conspiracy to defraud. These are allegations of a conspiracy involving similar false representations, this time relating to being an account holder and agent of Western Union. The Leeds EAW was endorsed for execution by the High Court on 27th October, 2015.
On 19th October, 2015, Mr. Khan was arrested in relation to the Northern Ireland EAW. On 3rd November, 2015, he was arrested on the Leeds EAW. He has been remanded in custody from time to time, bail having been refused to him.
The case has a somewhat unfortunate procedural history. Initially, an indication was given on behalf of the respondent, that it was likely that there would be consent to surrender in relation to both EAWs. On the day the matter came before the Court, counsel indicated that the respondent would consent to surrender on one EAW but not on the other. Points of objection had by that time already been served in relation to both EAWs. Further delays ensued as detailed in this judgment.
The points of objection filed in each case were virtually identical. In summary, the four points of objection were:
1) the surrender of the respondent would be unfair and unjust and in breach of his personal and family rights;
2) Surrender is prohibited by Part 3 of the Act of 2003, as amended, in particular by s. 37 thereof on grounds of breach of the respondent's constitutional and European Convention on Human Rights ('ECHR') rights;
3) It would be in breach of s. 37 of the Act of 2003 because such surrender would impermissibly infringe his personal rights and family rights as guaranteed by Articles 38, 40 and 41 of the Constitution and as protected by Articles 2, 3, 5, 6 and 8 of the ECHR and 'because he will be separated from his family including his young children and because he will be treated less favourably than other persons who are not of his race, nationality or ethnic origin';
4) A generic objection stating such further or other points of objection as maybe permitted by this Honourable Court.
On the first hearing date, counsel for the respondent indicated that the respondent was prepared to consent to his surrender on the Leeds EAW whereas he objected to surrender on the Northern Ireland EAW. In support of his objection to surrender, the respondent stated on affidavit that he was living in Carlow since January (presumably of 2015), was married and had a son and a daughter aged fourteen and nine years old respectively who were attending local schools. He said he was a British citizen and his children were British citizens. His family had contacts in England and if surrendered to Leeds, his family would be in a better position to visit him. He also said with regard to his exposure to the Northern Ireland prison system that: 'I did not like what I experienced. It was very bad. I was in HM Prison Maghaberry and I found it very distressing. I was harassed and threatened and this was motivated by reasons of my race or ethnic origin. Other inmates told me that they didn't want foreigners. I did not feel I had any protection from prison officers and I was in fear. I am very concerned about my health and my safety if sent back there. I anticipate physical harm or worse. It is because of that fear that I did not go back there for my court case.'
Counsel for the respondent also indicated on the first hearing date, that he was relying upon the mandatory provision in s. 15 of the Act of 2003 requiring surrender where a requested person consents. It appeared at that time that counsel was submitting that a consent to surrender under s. 15 had to be dealt with by the High Court immediately. Section 15 (1) states that 'where a person is brought before the High Court under section 13, he or she may consent to his or her being surrendered to the issuing state and, if he or she so consents, the High Court shall - [subject to various conditions set out in the section] make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her.'
Counsel for the minister sought time to consider this newly indicated approach of the respondent to surrender on each EAW. In the absence of a straightforward consent as had been indicated, the Court did not have time to deal with the issue. The Court, therefore, had no alternative but to adjourn the matter. On the following date for hearing, the available court time did not suit counsel and on consent the matter was adjourned to 24th November, 2015 for hearing.
On that further date, the Court, again due to the pressure of court time, was unable to hear the matter. It then transpired that counsel for the respondent was now seeking to rely upon s. 29 of the Act of 2003, as amended. Not surprisingly, counsel for the minister complained that no notice had been given of this matter. Counsel for the respondent took issue with whether it was a point of objection at all and suggested that it was a matter the High Court was required to address. Although the Court expressed disappointment that no notice had been given of this argument, the Court concluded that it was a matter that the Court should consider.
On 27th November, 2015, the High Court heard submissions from both sides, both written and oral. In his submissions, counsel for the respondent raised another argument, albeit one related to his s. 29 point. He submitted that if the Court could only surrender on one EAW, there would be a breach of specialty contrary to s. 22 of the Act of 2003. This was undoubtedly a point of objection (indeed, it appeared to be a point of objection even to the consent to surrender). Undoubtedly, this should have been stated expressly in the points of objection.
A respondent has a duty to file points of objection...
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