Minister for Justice and Others v O'Sullivan

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 02 June 2011
• Neutral Citation: [2011] IEHC 230
• Judgment citation (vLex): [2011] 6 JIC 0203
• Court: High Court
• Date: 02 June 2011

[2011] IEHC 230

THE HIGH COURT

Record No. 189 EXT/2009

Minister For Justice & Ors v O'Sullivan

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003

Between/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant

-and-

STEPHEN O'SULLIVAN

Respondent

1 JUDGMENT of Mr Justice Edwards delivered on the 2nd day of June 2011

Introduction:

2 The respondent is the subject of a European Arrest Warrant issued by the United Kingdom of Great Britain & Northern Ireland on the 3 ^rd of July 2009. The said warrant having been endorsed by the High Court pursuant to s. 13 of the European Arrest Warrant Act 2003 as amended (hereinafter "the 2003 Act"), the respondent was arrested in this jurisdiction on foot of the said warrant on the 8 ^th of September 2009. Subsequently, on the 9 ^th of February 2010, the High Court (Peart J) made an Order pursuant to s.16 of the 2003 Act directing that the respondent be surrendered to such person as was duly authorised by the issuing state to receive him. I understand that the respondent was in fact surrendered on a date in June 2010.

3 The matter now comes before the Court again on foot of a request, which the applicant contends is made on behalf of the issuing state, seeking the High Court's consent to proceedings being brought against the respondent in the issuing state for an offence which was not covered by the said European Arrest Warrant, which request is purportedly made pursuant to s.22(7) of the 2003 Act. Such an application is, in effect, an application by the issuing state for a waiver of specialty in circumstances where Ireland has chosen not to opt out of the specialty provisions contained in the Framework Decision. That being so, the default position is that the rule of specialty applies unless, in response to a request in writing from the issuing state, it is waived by the High Court pursuant to the provisions of s.22(7) and (8) of the 2003 Act.

4 The respondent, through his solicitors and counsel, has raised both procedural and substantive objections to the High Court giving its consent. First, he has raised an objection to the validity of the purported s.22(7) request on the basis that it is not a request from "the issuing state". Secondly, there is an objection to the form of the request and in particular that it allegedly contains no admissible evidence and contains only inadmissible evidence. Thirdly, there are substantive objections to the granting of consent based (i) the absence of an explanation for the non-inclusion of the offence (which predates the European Arrest Warrant) in the warrant; and (ii) an alleged legitimate expectation on the part of the respondent that "all pre-warrant offences known to the UK authorities" would be included in the warrant when it was applied for.

The offences to which the European Arrest Warrant related.

5 The European Arrest Warrant was a conviction type warrant on foot of which the respondents surrender was sought by the issuing state so that he might serve out a sentence of 6½ years imprisonment imposed upon him by Luton Crown Court on the 24 ^th of April 2009 in respect of six offences as follows:

6 1. Two offences of conspiracy to defraud: sentenced to 5 years imprisonment on each offence concurrently;

7 2. Conspiracy to lend or allow to be used documents to which s.38(2) of the Goods Vehicles (Licensing of Vehicles) Act 1995 applied, contrary to s. 1(1) of the Criminal Law Act 1977:, sentenced to 1 year and 6 months imprisonment concurrent to the 5 years sentence above; and

8 3. Three offences of concealing the proceeds of crime: sentenced to 1 year and six months imprisonment on each offence concurrently but consecutive to the 5 years sentence above.

9 It is important to note that while the alleged bail offence in respect of which consent pursuant to s. 22(7) is now sought was not the subject of the European Arrest Warrant on foot of which the respondent was surrendered, it was referred to therein. It is referred to both in Part D of the warrant in explanation of the circumstances in which the decision of the Court of Trial, after due notification to him, was rendered in absentia; and in Part E of the warrant, within the subdivision thereof which contains the narrative description of the circumstances in which the offences which are the subject of the warrant were committed.

10 The alleged bail offence was referred to as follows in Part D:

"On Friday 13 ^th March 2009, Stephen O'Sullivan failed to attend the Court and his Defence Counsel could give no explanation for his non-attendance. On that same day the Trial Judge issued a warrant not backed for bail for Stephen O'Sullivan's Arrest."

11 and:

"The attendance of the defendant at the Crown Court is secured by the Magistrate's Court remanding him in custody or on bail when he is committed for trial. If, having been bailed, he fails to attend on the day notified to him as the day of trial, a bench warrant may be issued forthwith for his arrest under the Bail Act 1976, section 7."

12 Further, the alleged bail offence was referred to as follows in Part E:

"In addition the Trial Judge indicated that he would impose a consecutive sentence for the Bail Act offence when O'Sullivan is arrested."

13 The maximum sentence on conviction in the Crown Court for an offence of absconding by a person who has been released on bail in criminal proceedings to which Section 6(1) of the Bail Act 1976 applies is imprisonment for a term not exceeding 12 months or to a fine or to both."

The raising of the issue of specialty at the s. 16 hearing

14 It is also relevant to note that one of the grounds advanced at the s. 16 hearing on foot of which the respondent objected to being surrendered was that if surrendered to the issuing state the rule of specialty would be breached. This objection was based upon the references to the alleged bail offence contained in the European Arrest Warrant and recited above. This objection was rejected by the Court, and it is appropriate to quote in full the relevant portion of Peart J's judgment - Minister for Justice, Equality & Law Reform v Stephen O'Sullivan (unreported, Peart J, 9 ^th February, 2010). The learned judge said:

"Rule of Specialty: "

15 Firstly, it is submitted that it is clear that if surrendered to the issuing state, the rule of specialty will be breached, and that this is evident from the warrant itself and that this is sufficient to rebut the presumption contained in s. 4A of the Act that following surrender the issuing state will comply with its obligations under the Framework Decision.

16 This issue arises because on page eight of the warrant after a lengthy recitation of the offences for which he was sentenced and for which surrender is sought, the issuing judicial authority goes on to state:

"In addition, the trial judge indicated that he would impose a consecutive sentence for the Bail Act offence when O'Sullivan is arrested.

The maximum sentence on conviction in the Crown Court for an offence of absconding by a person who has been released on bail in criminal proceedings to which Section 6 (1) of the Bail Act 1976 applies is imprisonment for a term not exceeding 12 months or to a fine or to both."

17 Mr Masterson has submitted that this Court is precluded from making the order sought in view of the specialty provisions of s. 22 of the Act, and that these paragraphs clearly rebut the presumption that this Court might otherwise rely upon, namely that the court in the United Kingdom before the respondent will appear upon surrender or any other court for that matter will observe the rule of specialty and refrain from prosecuting, sentencing or otherwise penalising the respondent in respect of any offence besides those in respect of which his surrender is ordered. It is submitted that this Court is entitled to take at face value what is stated in the warrant, and that it ought not to assume that what is stated in this regard in the warrant was not intended to be stated, or take the view that since it is something which need not have been stated, the Court can ignore it. The presumption in s. 22 of the Act is in the following terms:

18 (3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to-

19 (a) proceed against him or her,

20 (b) sentence or detain him or her in his or her personal liberty, in respect of an offence, unless the contrary is proved.

21 It is submitted also that the protections provided by s. 22 of the Act whereby this Court can rely on the fact that if the issuing state intends to prosecute the respondent for the Bail Act offence or punish him in that regard it will first seek the consent of the High Court here so to do, cannot apply in the present case. The basis of that submission is that s. 22(2) speaks of a future prosecution/punishment for an offence other than the offences for which surrender is ordered, whereas in the present case it is submitted that the decision to punish the respondent for the bail offence has already been made. Section 22 (2) provides:

22 2 "(2) Subject to this section, the High Court shall refuse to surrender a person under this Act if it is satisfied that-

23 (a) the law of the issuing state does not provide that a person who is surrendered to it pursuant to a European arrest warrant shall not be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal liberty, in respect of an offence, and

24 (b) the person will be proceeded against, sentenced, or detained for the purposes of executing a sentence or detention order, or otherwise restricted in his or her personal...