Minister for Justice and Equality v Prieto

• Jurisdiction: Ireland
• Judge: Ms. Finlay Geoghegan,MR JUSTICE PEART,Mr. Justice Gerard Hogan
• Judgment Date: 24 February 2016
• Neutral Citation: [2016] IECA 90
• Court: Court of Appeal (Ireland)
• Docket Number: RECORD NUMBER 2015/603
• Date: 24 February 2016

Finlay Geoghegan J.

Peart J.

Hogan J.

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT/APPLICANT

AND

PABLO TELLARINI PRIETO

APPELLANT/RESPONDENT

[2016] IECA 90

Finlay Geoghegan J.

Peart J.

Hogan J.

RECORD NUMBER 2015/603

THE COURT OF APPEAL

European arrest warrant – Order for surrender – Point of law – Applicant seeking certification of a point of law – Whether the offence of failure to turn up in court in accordance with terms of conditional release corresponds to any offence in Ireland?s jurisdiction

Facts: The appellant, Mr Prieto, on the 27th November 2015, was ordered to be surrendered by Donnelly J pursuant to s. 16 of the European Arrest Warrant Act 2003 to the judicial authority in Scotland on foot of a European arrest warrant issued by it on the 5th June 2014 in respect of two of the offences set forth in the warrant, namely, the offence of assault, and that of failing to appear in court as required by the terms of his bail. Pursuant to s. 16(11) of the 2003 Act she certified one point of law as being of exceptional public importance, such that it was desirable in the public interest that an appeal to the Court of Appeal be brought. That point of law was certified in the following terms: ?Does the offence of failure to turn up in court in accordance with terms of conditional release correspond to any offence in this jurisdiction in particular to criminal contempt of court??

Held by Hogan J that the acts alleged to have been committed by the appellant (including the circumstances in which they occurred) as set out in the warrant and further information supplied by the Scottish authorities in relation to Case 1 (charge 2) in the warrant i.e. failure to appear at a procedural hearing on the 7th January, 2014, did not correspond to the offence of criminal contempt of court in Ireland?s jurisdiction. On the issue of whether the Scottish offence alleging that Mr Prieto failed to attend at the appropriate court hearing in accordance with his bail terms corresponds with an offence known to Irish law, specifically s. 13 of the Criminal Justice Act 1984, Hogan J disagreed with the conclusions of the majority of the Court. Referring to DPP v Clifford [2013] IESC 43, Hogan J held that proof of a breach of a recognisance is a key element of the s. 13 offence. Hogan J noted that this is tantamount to saying that the accused must have both entered into a recognisance and breached that recognisance before any offence can be committed. Hogan J observed that those latter elements are not features of the Scottish offence. Hogan J held that there can be no recognisance – and no breach of a recognisance – without a prior commitment on the part of the accused who is being released on bail to pay a monetary sum, even if that obligation is a defeasible one and even again if the obligation to pay is in respect of a nominal amount. Hogan J held that since no such requirement was imposed on Mr Prieto when he was granted bail, it followed that one essential element of the s. 13 offence was not – and could not be – satisfied in this case. Hogan J noted that the essence of the Scottish offence is failure to attend at court on a designated day; that, however, in itself is not an offence under Irish law, since under Irish law there is the additional element that the failure to attend must be in breach of the accused?s recognisance.

Hogan J held that the offence under s. 102A of the Criminal Procedure (Scotland) Act 1995 does not correspond to an offence under Irish law within the meaning of s. 5 of the 2003 Act. Hogan J held that he would accordingly decline to make an order of surrender in respect of this offence and would answer the certified question in the negative.

Judgment approved.

JUDGMENT of Ms. Finlay Geoghegan delivered on the 24th day of February 2016

1 I have had the opportunity of reading in draft the judgments of Peart J. (which sets out the relevant background facts and issues) and that of Hogan J. I do not propose repeating more than is necessary the relevant facts or law.

2 The issues certified by the trial judge pursuant to s. 16(11) of the European Arrest Warrant Act 2003, as amended, is:

?Does the offence of failure to turn up in court in accordance with the terms of conditional release correspond to any offence in this jurisdiction in particular to criminal contempt of court??

3 I am in agreement for the reasons set out by Peart J. that the acts alleged to have been committed by the appellant (including the circumstances in which they occurred) as set out in the warrant and further information supplied by the Scottish authorities in relation to Case 1 (charge 2) in the warrant i.e. failure to appear at a procedural hearing on the 7th January, 2014, do not correspond to the offence of criminal contempt of court in this jurisdiction.

4 The second offence considered by the trial judge and rejected is an offence under s. 13 of the Criminal Justice Act 1984. This provides:-

?If a person who has been released on bail in criminal proceedings fails to appear before a court in accordance with his recognisance, he shall be guilty of an offence ??

5 The trial judge considered in some detail the nature of a recognisance from its definition in O'Connor's (The Irish Justice of the Peace) (Vol. 1. 2nd Ed. 1915) as ?the acknowledgment of a debt due to the King defeasible upon the happening of a certain event, e.g. the appearance of the party in court pursuant to the terms of the condition? to the more recent use of the term in provisions in the Bail Act 1997 as amended. At para. 52, she ultimately concluded that the more recent amendments ?did not alter the fundamental nature of recognisance as involving a monetary commitment on behalf of an accused conditional upon the happening of a certain event, usually a failure to turn up in court or breach of another condition?.

6 The trial judge then concluded at para. 54:

?No monetary commitment to turn up was required of this respondent in Scotland. In that sense, he did not enter into a recognisance. In those circumstances I am satisfied that there is no correspondence with s. 13 of the Act of 1984.?

7 I am prepared to accept for the reasons set out by the trial judge and Hogan J. in his judgment for the purposes of this judgment that a recognisance still includes the creation of a monetary bond or defeasible debt (however nominal) to the people of Ireland, notwithstanding certain indications in the more recent legislation to the contrary.

8 Notwithstanding, I am in agreement with Peart J. that correspondence for the purposes of s.5 of the European Arrest Warrant Act 2003 as amended has been established for the following reasons.

9 In accordance with the judgment Denham J. (as she then was) in Minister for Justice, Equality and Law Reform v. Dolny[2009] IESC 48, what the court must consider and determine is if the acts alleged are such that if committed in this jurisdiction they would constitute an offence. As further stated by Denham J in Dolny ?a court may look at all the information provided, the facts and acts described ??. The trial judge put it well and succinctly at para. 60 of her judgment where she stated:-

?When considering the issue of correspondence of offences, the focus must be on a transposition of the facts as if they occurred in this jurisdiction.?

10 The facts to be considered include those given in the European Arrest Warrant (?EAW?) including the circumstances in which the offence is alleged to have been committed and further information provided by the Scottish authority. In relation to the failure of the appellant to appear, the relevant conduct includes that set out in the further information provided by the Scottish authorities. These include that the appellant was charged with offences of assault and theft. He appeared before Edinburgh Sheriff Court on the 26th April, 2013, where he accepted before the Sheriff conditions of bail which included appearing ?at the appointed time at every diet relating to the offence with which he is charged of which has given due notice ?? and having accepted the conditions was then released on bail. As put in the further information ?his release on bail was conditional on agreeing at court in front of a Sheriff to abide by the conditions of bail in the bail order?. If in this jurisdiction he had been charged with offences of assault and theft and brought before a court he would only have been released on bail on his entering into a recognisance with a condition to appear at subsequent hearings as distinct from simply agreeing before a judge to such conditions of bail.

11 In entering into a recognisance the accused agrees to the conditions stipulated and also agrees to be bound to pay the amount of the bond in the event he fails to comply with the conditions. This is an additional element in the mechanism by which an accused agrees to the conditions of bail in this jurisdiction as compared with Scotland.

12 However the next question appears to be whether the offence created by s.13 of the 1984 Act is dependant on the accused having agreed to a bail condition by entering into a recognisance which created a monetary bond or defeasible debt as security for compliance with the condition? The offence created by s. 13 of the 1984 Act does not appear dependent in any way on the recognisance creating a monetary bond or a defeasible debt. Rather it is addressed to the condition to which an accused will have agreed and bound himself to perform in entering into an recognisance to be present in court at the end of the period of remand or turn up in court on any other date specified. Insofar as s. 13 of the 1984 Act creates an offence when a person released on bail in criminal proceedings fails to appear before a court ?in accordance with his recognisances? it can only mean in accordance...