Minister for Justice and Equality v Jalloh

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 13 June 2016
• Neutral Citation: [2016] IEHC 485
• Court: High Court
• Docket Number: [2015 No. 121 EXT]
• Date: 13 June 2016

[2016] IEHC 485

THE HIGH COURT

Donnelly J.

[2015 No. 121 EXT]

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

MOHAMED JALLOH

RESPONDENT

Crime & Sentencing – European Arrest Warrant Act, 2003 – 2002 Framework Decision – Surrender – Disproportionality – Personal and family rights.

Facts: Following an application under s. 16(1) of the European Arrest Warrant Act, 2003, as amended, for the surrender of the respondent, the respondent claimed that no decision had been made to charge and try the respondent for the offences. The respondent claimed that the surrender would be prohibited under s. 21A of the Act of 2003. The respondent argued that the warrant lacked clarity, had been poorly translated, and the additional information added to the confusion. The respondent further claimed that it would be disproportionate to surrender the respondent.

Ms. Justice Donnelly held that an application under s. 16(1) of the European Arrest Warrant Act, 2003, as amended, for the surrender of the respondent would be refused. The Court observed that the identity of the judicial authority that made the judicial decision to issue a warrant would be vital to the entire operation of the surrender system.

JUDGMENT of Ms. Justice Donnelly delivered the 13th day of June, 2016.

1 This is an application under s. 16(1) of the European Arrest Warrant Act, 2003, as amended (‘the Act of 2003’) for the surrender of the respondent to France. The main issue raised by the respondent was that no decision has been made in France to charge and try him for the offences for which he has been sought in the European Arrest Warrant (‘EAW’), and his surrender is thereby prohibited under s. 21A of the Act of 2003. That issue resulted in various exchanges of affidavits and additional information between the parties, the contents of which inform the decision in this case. Other issues were raised by the respondent or fell to be dealt with under the Act of 2003.

The European Arrest Warrant

2 The EAW is dated 9th September, 2014. It states that it has been issued by an issuing judicial authority in France, namely the Public Prosecutor of the French Republic, and signed on his behalf by the Deputy Public Prosecutor. The decision on which the EAW is based is stated to be a warrant of arrest of 8th September, 2014, delivered by M. Philippe Salomon, Investigating Judge at the Court of First Instance of Bobigny. The EAW indicates that the maximum length of the sentence is ten years. The EAW states that the warrant relates to a total of three offences.

3 Under the nature and legal classification of the offences and the applicable statutory provision/code, it is stated as follows:-

‘- Complicity of importing narcotics

- Complicity of transportation and possession of narcotics

- Interest in fraud’

There is then a reference to various articles in the French Penal Code and in the French Customs Code.

4 At point E.II of the EAW, the box ‘illicit trafficking in narcotic drugs and psychotropic substances’ is ticked. In doing so, the Public Prosecutor has indicated that these offences are list offences in accordance with Article 2.2 of the Council (EC) Framework Decision of 13th June 2002 (2002/584/JHA) on the European arrest warrant and surrender procedures between Member States (‘the 2002 Framework Decision’). The description of the circumstances in which the offences were committed is set out as follows:-

‘The 17th August, 2012, at 9:15am, the customs officers at the Roissy-Charles de Gaulle international airport were engaging in the control of Mr. Isaac Conteh, an Irish citizen, coming from Rio de Janeiro on board of the AF457 flight, in transit in Paris and whose final destination was Dublin (Ireland). The latter recognized having transported “in corpore” 79 eggs of cocaine for a total weight of 1100 grams. It had been supported in the outskirts of Sao Paolo by a certain (H) friends who supplied him the cocaine to ingest. He recognized, both before the police services that before the judge, having been solicited by a certain Mohamed UMARr (or UMARU) nicknamed Jalloh, international letters rogatory addressed to the Brazilian and Irish authorities allowed to identify Mohamed JALLOH born 10th October, 1984 in SIERRA LEONE remains in Dublin as the person denounced by Mr. CONTEH.’

5 By letter dated 27th April, 2015, the central authority sought clarification from the Public Prosecutor in respect of:-

(a) the specific acts committed by the respondent which led him to be charged with the offence of interest in fraud;

(b) whether with respect to the offence of interest in fraud, the issuing judicial authority was relying on the offence box of ‘illicit trafficking in narcotic drugs and psychotropic substances’; and

(c) with reference to the three offences set out the EAW the maximum sentence applicable for each offence.

6 The Public Prosecutor replied by letter dated 9th June, 2015, that the interest in fraud was a customs offence, punishable by the French Customs Code and not by the French Penal Code. It was an infringement characterised when an individual organised the entry on French territory of products or goods considered as dangerous or unhealthy, which is the case of narcotic products such as cocaine. It was stated that by hiding the goods from French Customs, the individual will be able to benefit, fraudulently, to financial gains, considerable in terms of cocaine. The Public Prosecutor went on to state that:-

‘The box illicit trafficking in narcotic drugs has been tick[ed] (sic) because if the alleged infringements to JALLOH Mohamed have been more precisely qualified has “complicity of illicit import of narcotic products” and “complicity of illicit possession and transport of narcotic products”, those infringements correspond to the more generic term of “illicit trafficking in narcotic drugs”. The criminal jurisdiction who will be in fine investigating this case, will be done before facts of illicit trafficking in narcotic drugs. The same jurisdiction will have as well to decide of the guilty of JALLOH Mohamed for the facts of “interest to the fraud” previously explained’.

It was then set out that the same penalty applied to each of the offences, i.e. that of ten years.

7 On 30th June 2015, the EAW, together with that additional documentation, was endorsed for execution in this jurisdiction. The respondent was subsequently arrested on 20th July, 2015, and in due course released on bail. He filed points of objection and a series of affidavits, the contents of which are referred to in more detail below.

8 By letter dated 3rd November, 2015, the central authority sought further details of how it was alleged that the respondent solicited Isaac Conteh to carry the drugs and sought confirmation of the value of the drugs. Clarification was also sought as to whether the respondent was alleged to have carried out any acts in furtherance of the offences, the subject matter of the EAW, while on the territory of France. This latter request related to a point of objection that s. 44 of the Act of 2003, dealing with the principle of extraterritoriality, prohibited the surrender of the respondent to France. That point was expressly abandoned during the course of the hearing of this application.

9 By reply dated 17th November, 2015, the Public Prosecutor gave information as to how it was alleged that the respondent had solicited Mr. Conteh to carry the drugs. The value of the drugs was given at €36,300. Finally, the Public Prosecutor gave a third answer and headed it ‘Offences Mohamed JALLOW (sic) is facing in FRANCE’. This was in answer to a question directed towards the issue of extra-territoriality and the full reply is as follows:-

‘As a consequence, regarding to your final question, Mohammed JALLOH is suspected to the following offences in France:

Complicity of:-

- unauthorized transportation, possession, purchase, import and transfer of narcotics

- smuggling of prohibited merchandise

Facts committed in Roissy-Charles de Gaulle Airport on August 2012.’

Vagueness

10 The respondent relied upon the case of Minister for Justice and Equality v. Connolly [2014] 1 I.R. 720, in which it was stated by the Supreme Court (Hardiman J.) at para. 30:-

‘It is a mandatory requirement of the European Arrest Warrant procedure that there be unambiguous clarity about the number and nature of the offences for which the person sought is so sought.’

11 Counsel for the respondent submitted that the EAW in this case is vague and poorly translated and that the additional information adds to the confusion. In reliance upon the reply of the Public Prosecutor of 17th November, 2015, quoted above, it was submitted by the respondent that he is now being sought in respect of complicity in only two offences. Alternatively, it was submitted that it can be read as referring to six offences, i.e. if transportation, possession, purchase, etc. read as separate offences. The respondent submitted that the interest in fraud appears to have fallen away.

12 Counsel for the minister has correctly pointed out that, the facts stated on the EAW in this case are wholly unlike the facts set out in Connolly. In Connolly, there was unclear and contradictory information in the documentation before the Supreme Court, as to how many offences were contained in the EAW. There is no such ambiguity here. The EAW sets out that he is sought in respect of three offences and it lists those three offences. The information dated 9th June, 2015 also sets out the three separate offences, namely: complicity of importing narcotics; complicity of transportation and possession of narcotics; and finally, interest in fraud. The interest in fraud is explained as a customs offence concerning the importation of unhealthy or dangerous merchandise. The information of 9th June, 2015, also sets out...