Minister for Justice and Equality v AW

• Jurisdiction: Ireland
• Judge: Ms Justice Donnelly
• Judgment Date: 10 April 2019
• Neutral Citation: [2019] IEHC 251
• Court: High Court
• Docket Number: [2017/116 EXT.]
• Date: 10 April 2019

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

PLAINTIFF/APPLICANT

AW

RESPONDENT

[2019] IEHC 251

Donnelly J.

[2017/116 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – Inhuman and degrading conditions – Respondent objecting to his surrender – Whether the respondent would be subject to a real risk of being exposed to inhuman and degrading conditions

Facts: The surrender of the respondent to the United Kingdom of Great Britain and Northern Ireland (the UK) for prosecution for twelve offences was sought under a European Arrest Warrant (EAW) issued on the 6th January, 2016. Since his arrest on the 11th June, 2017, the respondent had resisted his surrender on a number of grounds. The respondent first filed points of objection on 24th July, 2017. He objected to his surrender on grounds relating to lack of clarity and lack of correspondence of offences set out in the EAW and on the basis of the UK withdrawal from the European Union. He filed supplemental points of objection on the 30th May, 2018. The respondent claimed that he would be subject to a real risk of being exposed to inhuman and degrading conditions arising out of conditions in prisons in the Liverpool area. He subsequently filed further points of objection claiming that the High Court could not rely on further information provided by the issuing state because the information had not been forwarded by an issuing judicial authority.

Held by Donnelly J that there was no basis for refusing the respondent’s surrender on any issue arising out of the information, or lack thereof, provided in the EAW as to the offences for which his surrender for prosecution was sought. Donnelly J was satisfied that there were no substantial grounds for believing that the respondent would be at a real risk of inhuman and degrading treatment should he be surrendered to the UK. Donnelly J was satisfied that the public interest in the respondent’s surrender in relation to the offences clearly outweighed his personal and family rights. Donnelly J held that the respondent had not produced any evidence at all to demonstrate that he was at risk of being deprived of rights recognised by the EU Charter on Fundamental Rights and Freedoms and the Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between Member States.

Donnelly J held that the Court may make an order for the respondent’s surrender in accordance with s. 16(1) of the European Arrest Warrant Act 2003 to such other person as is duly authorised by the issuing state to receive him.

Application granted.

JUDGMENT of Ms Justice Donnelly delivered on the 10th day of April, 2019

1 The surrender of this respondent to the United Kingdom of Great Britain and Northern Ireland (‘the UK’) for prosecution for twelve offences is sought under a European Arrest Warrant (‘EAW’) issued on the 6th January, 2016. Since his arrest on the 11th June, 2017, the respondent has resisted his surrender on a number of grounds. A significant part of the time lapse in the hearing of this application resulted from the need to await the decision of the Court of Justice of the European Union (‘the CJEU’) in respect of the notification by the UK of its intention to withdraw from the European Union. Further delay was caused by requests for further information from the issuing state on certain issues and the respondent's amended pints of objection. Another delay was caused by the respondent's late notification to his solicitors of certain mental health difficulties on which he sought to rely to resist his surrender.

2 The respondent first filed points of objection on 24th July, 2017. He objected to his surrender on grounds relating to lack of clarity and lack of correspondence of offences set out in the EAW and on the basis of the UK withdrawal from the European Union. He filed supplemental points of objection on the 30th May, 2018. The respondent claimed that he would be subject to a real risk of being exposed to inhuman and degrading conditions arising out of conditions in prisons in the Liverpool area. As will be seen, he subsequently filed further points of objection claiming that the High Court could not rely on further information provided by the issuing state because the information had not been forwarded by an issuing judicial authority.

Background to the European Arrest Warrant

3 The EAW states at point (e) that it relates to twelve offences. The description of the circumstances in which the offences were committed are set out in the EAW as follows:

(1) ‘Before 25/01/2015 conspiracy to possess a firearm and ammunition contrary to s.1 Criminal Law Act 1977 - one offence. During searches of Liverpool addresses on 6/8/14 at [redacted] Road and 3/9/14 at [Redacted] Road, quantities of firearms and ammunition and phones containing images of firearms and ammunition were found which can be linked forensically to [AW] and his associates. These addresses are linked to AW and his associates.

(2) Before 25/01/2015 conspiracy to possess prohibited firearms and ammunition contrary to s.1 Criminal Law Act 1977- one offence. During searches of Liverpool addresses on 6/8/14 at [Redacted] Road and 3/9/14 at [Redacted] Road quantities of firearms and ammunition and phones containing images of prohibited firearms and ammunition were found which can be linked forensically to AW and his associates. The addresses are linked to AW and his associates.

(3) On 06/08/2015 possession of a prohibited weapon contrary to s.5 Firearms Act 1968 – 2 offences. During a search of [Redacted] Road, Liverpool on 6/8/14 two prohibited firearms were found which were linked forensically to [AW]. This is his address.

(4) On 06/08/2015 possession of ammunition without a certificate contrary to s.1 Firearms Act 1968 – two offences. During a search of [Redacted] Road, Liverpool on 6/8/14 ammunition was found which is linked forensically to [AW]. This is his address. He does not hold a certificate.

(5) On 06/08/2015 possession of prohibited ammunition contrary to s.5 Firearms Act 1968 – two offences. During search of [Redacted] Road, Liverpool on 6/8/14 prohibited ammunition was found which is forensically linked to [AW]. This is his address.

(6) On 06/08/2015 possession with intent to supply controlled drugs of class A. contrary to s.4 (1) Misuse of Drugs Act 1971 – two offences. During a search of [Redacted] Road, Liverpool on 6/8/14 controlled drugs diamorphine (heroin) and cocaine, were found which are linked forensically to [AW]. This is his address.

(7) Between 30/06/2014 and 13/08/2015 conspiracy to possess firearms with intent to cause fear of unlawful violence contrary to s.1(1) of the Criminal Law – one offence. During searches of Liverpool addresses on 6/8/14 at [Redacted] Road and 3/9/14 and [Redacted] Road quantities of firearms and phones containing images of firearms were found which can be linked forensically to [AW] and his associates. The addresses are linked to [AW] and his associates. There is evidence of a dispute between associates of [AW] and another Liverpool male, which dispute has involved the brandishing of and use of firearms to cause fear and criminal damage.

(8) Between 05/08/2014 and 13/08/2015 conspiracy to possess controlled drugs of class A. contrary to s.1 Criminal Law Act 1977 – one offence. During searches of Liverpool addresses on 6/8/14 at [Redacted] Road, 3/9/14 at [Redacted] Road, 23/10/14 at [Redacted] Road and 12/8/15 at 12 Low Bridge Court quantities of drugs and drugs paraphernalia were found which can be linked forensically to [AW] and his associates. These addresses are linked to [AW] and his associates’.

4 The EAW then sets out the nature and legal classification of the offences. Prior to endorsement of the EAW by this Court, further information was sent over by the issuing state by letter from the Crown Prosecution Service (‘the CPS’). This stated that:-

‘The dates of the offences in Section (e) paragraphs 3,4,5, & 6, is given as 6/8/15. This is a typographical error and should be 6/8/14. The date in the first instance warrant attached is correct’.

5 The letter also confirmed that the drugs referred to in the last paragraph were cocaine and heroin which had been referred to in para. 6 of point (e) of the warrant. Finally, the CPS stated:-

‘As a result of a problem we have had in proceedings against a co-accused and co-conspirator over the length of the conspiracy and the span of dates, we will be seeking to amend the dates of the drugs conspiracy s.E para. 8 to “between 1/1/14 and 13/8/15”. The starting date for the conspiracy was 5/8/14. I hope you can agree to this amendment being made to the charge. It has also come to my attention whilst dealing with these queries that the offence at s.E para. 8 is erroneously described as a conspiracy to possess class A drugs. This again is a typographical error and should read conspiracy to supply class A drugs. The offence is correctly described in para. C of the EAW and in the Domestic Warrant.’

6 This Court endorsed the EAW on the 15th May, 2017. On endorsing the warrant, the Court indicated that further clarification as to whether the request to surrender the respondent was ‘to face a charge of conspiracy committed in the period from 01/01/2014 to 13/08/2015 and not in the period from 05/08/2014 to 13/08/2015’ should be sought. Confirmation was also sought that they were not asking the executing judicial authority (the High Court) to amend the charge.

7 The reply from the CPS dated 19th May, 2017 stated that, having recently prosecuted a co-accused of the respondent, an issue arose over the span of the conspiracy. As a result of their experience in the case against a co-accused, the CPS said they ‘ wish to amend the dates of the conspiracy so that the span of the conspiracy is expressed to be ‘Between 1/1/14 and 13/8/15’’.

8 On the 7th July, 2017, the...