Minister for Justice and Others v Murrell
| Jurisdiction | Ireland |
| Judge | Macken J. |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] IESC 35 |
| Court | Supreme Court |
| Date | 29 July 2011 |
[2011] IESC 35
THE SUPREME COURT
Macken, J.
O'Donnell, J.
McKechnie, J.
BETWEEN
AND
EUROPEAN ARREST WARRANT ACT 2003 S18
EUROPEAN ARREST WARRANT ACT 2003 S16
EUROPEAN ARREST WARRANT ACT 2003 S16(1)
CHILDREN ACT 2001 S246(1)
CHILDREN ACT 2001 S246(2)
KENNELLY v CRONIN 2002 4 IR 292
EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 24
EUROPEAN ARREST WARRANT ACT 2003 S42
DCR O.17
AG (MCDONNELL) v HIGGINS 1964 IR 374
MIN FOR JUSTICE v R (S M) 2008 2 IR 242
DUNNE v GOVERNOR OF CLOVERHILL PRISON UNREP PEART 15.1.2008 2008/15/3273 2008 IEHC 21
CARPENTER v KIRBY 1990 ILRM 794
EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 24(1)
EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 24(2)
EUROPEAN ARREST WARRANT ACT 2003 S18(3)
CHILDREN ACT 2001 S246(1)(2)
EUROPEAN ARREST WARRANT ACT 2003 S42(A)
EXTRADITION
European arrest warrant
Postponement of surrender - Outstanding proceedings - Fresh charges - Whether original charge no longer before District Court - Whether striking out of charge sheet due disposal of charge - Whether additional charges in contemplation of DPP - Whether offence on charge sheet constituted fresh offence - Whether postponement proper - Kennelly v Cronin [2002] 4 IR 292; Attorney General v Higgins [1964] IR 374; Minister for Justice v R(SM) [2007] IESC 54, [2008] 2 IR 242; Dunne v Governor of Cloverhill Prison [2008] IEHC 16 and Carpenter v Kirby [1990] ILRM 794 considered - European Arrest Warrant Act 2003 (No 45), ss 16, 18 and 42 - Children Act 2001 (No 24), s 246 - District Court Rules 1997 (SI 93/1997), O 17, r 1 - Framework decision, art 24 - Appeal dismissed (2010/4 - Macken J - 29/7/2011) [2011] IESC 35
Minister for Justice, Equality and Law Reform v Murrell
Facts: An application for surrender of the appellant had been made successfully to the UK The appellant faced charges in relation to the Children Act 2001. Meanwhile, the appellant had been charged with further offences and the charge sheet was struck out and replaced with a new charge sheet. The surrender of the appellant had been postponed then pending the determination of offences against the appellant in the District Court. The Supreme Court had to consider whether the original charge was no longer before the District Court or whether it had been disposed of and whether the additional charges were in the contemplation of the DPP at the date the application for the postponement. The question arose as to the application of s. 42 of the European arrest warrant Act 2003, as amended and whether the DPP was considering bringing further proceedings.
Held by the Supreme Court per Macken J. (O'Donnell, McKechnie JJ. Concurring), that the appeal would be dismissed. There was no difficulty postponing the surrender of the appellant until after the charges were disposed of. It was unlikely that the appellant would have had no further indication of the prospective proceedings. Nor was there any evidence that any consideration was being given by the DPP to any further charges being laid against the appellant.
Reporter: E. F.
Judgment of the Court delivered by Macken J. on the 29th day of July, 2011
On the 16 th December, 2010, the High Court (Peart, J.) granted an Order in favour of the respondent, pursuant to s. 18 of the European Arrest Warrant Act, 2003, as amended, ("the Act of 2003") postponing the surrender of the appellant to the United Kingdom pending the determination of certain domestic offences in respect of which the appellant has been charged. By Order dated the same day, the High Court postponed the Order for the appellant's surrender, pursuant to s.16 of the Act, made on the 28 th November, 2007, as confirmed by Order of this Court on the 3 rd February, 2009, until the final determination of the charges against him, and in the event of his being sentenced to a term of imprisonment upon conviction in respect of such charges, or later, if sentenced to imprisonment.
From the determination of the High Court, and the Order made thereon, the appellant, by a Notice of Appeal dated 6 th January, 2010, appealed from the same on the following grounds:
1. The learned High Court judge erred in law in determining that the surrender order granted under s.16 of the European Arrest Warrant Act, 2003 remained operative, and the learned trial judge so erred in postponing, or further postponing, the said surrender.
2. The learned High Court judge failed to have regard to the fact that the time of effecting the surrender of the appellant, prescribed by statute and by Counsel Framework Decision of the 13 th June, 2002 on the European Arrest Warrant and the surrender procedures between member states had passed, or had expired, and that it was not legally possible to bring the proceedings back to life in order to grant a postponement thereof and/or to effect the surrender.
3. Without prejudice to the foregoing, the learned trial judge erred in his interpretation and construction of the terms of the postponement order granted by this honourable court on the 3 rd February, 2009, which was and could only have related to the proceedings then in being and pending against the appellant before the District Court, namely, the charge preferred against the appellant on 31 st January, 2009, the subject matter of charge sheet No. 8909389.
4. The learned judge failed to have regard to the express provisions of s.42 of the European Arrest Warrant Act opened in court, and failed to interpret the decision of this honourable court in that light, such that the surrender of the appellant would have been prohibited, and could not have been ordered, if the Director of Public Prosecutions was considering further charges against the appellant.
5. The learned trial judge failed to have regard to the fact that there was no proceeding then pending before the Dublin District Court, and such proceeding as had been pending before that court were no longer so pending after the 25 th May, 2009. New charges were preferred on that date and the appellant was sent forward on those charges to the Central Criminal Court. The pre-existing charge, the subject matter of the order of this honourable court was struck out and was no longer pending. The postponement purportedly granted by the learned judge exclusively concerns the new charges preferred on the 25 th May, 2009.
6. In all the circumstances the learned judge erred in his determination that a postponement order was not required, and further erred in ordering postponement of the surrender in respect of all charges contained in the Bill before the Central Criminal Court.
Of particular importance in the context of the appeal are the terms of the Order of this Court dated 3 rd February, 2009. By that Order this Court (Murray, C.J., Geoghegan and Kearns, JJ.) directed postponement of the appellant's surrender in the following terms:
"IT IS FURTHER ORDERED that the surrender of the respondent, John Richard Murrell, be postponed under s.18(3) of the European Arrest Warrant Act, 2003, as amended, until the date of his conviction or acquittal for the said offence of wilfully assaulting, ill-treating, neglecting, abandoning or exposing a child in a manner likely to cause unnecessary suffering contrary to s.246(1) and (2) of the Children Act, 2001 in proceedings entitled D. P.P. at the Suit of Sergeant Thomas J. Harte v. John Richard Murrell, pending before Dublin District Court, and in the event of conviction until he is no longer required to serve any part of any term of imprisonment, consequent upon said conviction".
On the 28 th November, 2007, upon an application made by the respondent, pursuant to the provisions of the Act of 2003, the High Court (Peart, J.) made an order pursuant to S.16(1) thereof for the surrender of the appellant to the United Kingdom. That was in response to a European Arrest Warrant issued by the United Kingdom judicial authorities on the 27 th September, 2007 in respect of offences occurring there. The precise offences are of no great significance in the context of the present appeal. The Order for his surrender to the United Kingdom was appealed by the appellant, but was affirmed by this Court on the 3 rd February, 2009, when this Court also made the Order above referred to. Between the time when the appellant appealed the decision of the High Court for his surrender of the 3 rd February, 2009, the appellant had, in fact, been charged, on the 31 st January, 2009 in respect of an offence contrary to s.246(l) and (2) of the Children Act, 2001, which gave rise to the above postponement term being included in the Order made on the appeal.
That offence, as charged at that time, was the subject of a charge sheet bearing number 8476499. Particulars of the offence in question are recited in the following terms:
"On a date unknown between 19/05/2006 and 28/09/2007 at a place or places unknown within the State in the [sic] being a person having custody/charge/care of a child, namely, SA.M., did wilfully assault, ill-treat, neglect, abandon, expose the said child in a manner to cause unnecessary suffering to the child's health, or seriously to affect her wellbeing, contrary to s. 246(1) and (2) of the Children Act, 2001".
Sometime after the above events, on the 27 th May, 2009, the appellant was faced with new charges. On the same day, the above charge sheet was struck out, but was substituted immediately by charge sheet No. 8907492 relating to the same offence but...
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