Minister for Justice and Equality v Kenyon
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 03 May 2019 |
| Neutral Citation | [2019] IEHC 314 |
| Court | High Court |
| Docket Number | [2018 No. 33 EXT] |
| Date | 03 May 2019 |
[2019] IEHC 314
[2018 No. 33 EXT]
THE HIGH COURT
European arrest warrant – Surrender – Life imprisonment – Applicant seeking the surrender of the respondent – Whether it would be egregious to return the respondent to serve his sentence of life imprisonment
Facts: Pursuant to a European arrest warrant (EAW) dated 29th November, 2017, a judicial authority in the United Kingdom of Great Britain and Northern Ireland (the UK) sought the surrender of the respondent, Mr Kenyon, to serve a sentence of life imprisonment imposed upon him on the 21st March, 1972 in respect of an offence of murder. The respondent filed a notice of points of objection. Those points of objection contained wide ranging objections to surrender, primarily claiming that to surrender him would amount to a violation of his rights under the Constitution and under the European Convention on Human Rights (ECHR). By the time of his written submissions, the respondent’s case focused upon two interlinked aspects. The respondent claimed that there was a violation of his rights because there was no longer any causal link between his detention on this sentence and his original detention for the offence of murder. Thus, he claimed it would be egregious to surrender him in light of the lack of evidence that he was a real risk to the public. He claimed his lengthy residence in Ireland’s jurisdiction demonstrated that he was capable of living within the community and furthermore that he had served such a lengthy time of imprisonment in the UK without any indication that he would commit an offence of violence in the future.
Held by Donnelly J that, in all the circumstances, as a matter of law and as a matter of fact, this was not an exceptional case where it would be egregious to return the respondent to serve his sentence of life imprisonment, at Her Majesty’s pleasure, in the UK. Donnelly J therefore rejected the respondent’s points of objection.
Donnelly J held that he would make an order under s. 16(1) of the European Arrest Warrant Act 2003 for the surrender of the respondent to such other person as is duly authorised by the issuing state to receive him.
Order granted.
Pursuant to a European Arrest Warrant (‘EAW’) dated 29th November, 2017, a judicial authority in the United Kingdom of Great Britain and Northern Ireland (‘the UK’) seeks the surrender of the respondent to serve a sentence of life imprisonment imposed upon him on the 21st March, 1972 in respect of an offence of murder. The respondent was a juvenile at the time of his conviction for the murder of a 74 year old woman in her own home.
The respondent absconded on the 28th March, 2003 while on temporary release licence. A parole board in the UK had been considering his release at that time but had not made a decision to release him. It appears that he fled to this jurisdiction where he lived under an assumed name. In March, 2017, he contacted An Garda Síochána with a complaint about an unrelated matter to do with a neighbour. He gave the Gardaí his correct name. Having been invited to surrender himself to the UK authorities, he moved away from where he had been living in Tullamore, Co. Offaly.
The EAW was then issued in the UK and was endorsed by the High Court for execution in this jurisdiction. On the 2nd May, 2018, the respondent was arrested on the EAW when he was located in West Cork.
The respondent filed a notice of points of objection. Those points of objection contained wide ranging objections to surrender, primarily claiming that to surrender him would amount to a violation of his rights under the Constitution and under the European Convention on Human Rights (‘ECHR’). By the time of his written submissions, the respondent's case focused upon two interlinked aspects. The respondent claimed that there was a violation of his rights because there was no longer any causal link between his detention on this sentence and his original detention for the offence of murder. Thus, he claimed it would be egregious to surrender him in light of the lack of evidence that he was a real risk to the public. He claimed his lengthy residence in this jurisdiction demonstrated that he was capable of living within the community and furthermore that he had served such a lengthy time of imprisonment in the UK without any indication that he would commit an offence of violence in the future.
Prior to dealing with the specific issues that arise in this case, this Court must deal with the uncontested matters in order to establish whether the conditions under the European Arrest Warrant Act, 2003 as amended (‘the Act of 2003’) have been met.
The surrender provisions of the Act of 2003 apply to the member states of the European Union (‘EU’) that the Minister for Foreign Affairs have designated as member states having, under their national law, given effect to the Council Framework Decision (2002/584/JHA) of the 13th June, 2002 on the European Arrest Warrant and the surrender procedures between Member States (‘the Framework Decision’). I am satisfied that the Minister for Foreign Affairs has designated the UK as a member state for the purpose of the Act of 2003.
I am satisfied on the basis of the affidavit of Mark O'Donovan, member of An Garda Síochána, the affidavit of the respondent and the details set out in the EAW, that the respondent, Roy Norman Kenyon who appears before me, is the person in respect of whom the EAW has issued.
I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.
Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the respondent's surrender under the above provisions of the Act of 2003. I have addressed a particular aspect of s.22 in the judgment below.
Subject to further considerations of ss. 37, 38 and 45 of the Act of 2003, and having scrutinised the documentation before me, I am satisfied that I am not required to refuse the surrender of the respondent under any other section contained in Part 3 of the said Act.
Section 38 of the Act of 2003 provides for two situations in which surrender may be permitted for specific offences. If the offence in the EAW is an offence referred to in Article 2 para. 2 of the Framework Decision, then, provided the requirements of minimum gravity in terms of available sentencing powers have been met, there is no requirement to find correspondence/double criminality of the offence with an offence in this jurisdiction.
In the present case, the issuing judicial authority has ticked the box of murder under point (e) of the European Arrest Warrant. In doing so, the issuing judicial authority relies on Article 2, para. 2 of the Framework Decision. A life sentence has been imposed. The facts set out in the EAW outline an offence of murder. In those circumstances, there is no manifestly incorrect designation of the box in point (e). His surrender is therefore not prohibited under the provisions of s. 38 of the Act of 2003.
This section concerns the issue of trial in absentia. In the present case the issuing judicial authority has indicated that the respondent appeared in person at the trial resulting in the decision. In those circumstances, where it is clear that no trial in absentia has taken place, I am satisfied that his surrender is not prohibited by s. 45 of the Act of 2003.
In his written submissions, the respondent helpfully reduced his points of objection into a more manageable form. His main points of objection were collected under the heading ‘Surrender to indeterminate preventative detention’. This general objection was stated as follows: -
‘If the respondent is surrendered, he will resume serving an indeterminate period of preventative detention on the basis that he poses a risk to the public. This is in circumstances where the respondent has already served 31 years in custody, seventeen of which were in preventative detention; the offence which led to the sentence was committed when the respondent was a juvenile; and the respondent has demonstrated, during the fifteen years he was at large in this jurisdiction, that he does not pose a continuous public risk. In those circumstances, the imposition of further preventative detention would contravene the respondent's rights under Articles 3 and 5, para. 1 of the Convention. Further or in the alternative, it would be an egregious breach of the respondents” constitutional rights to freedom from inhuman or degrading treatment, liberty and the presumption of innocence. For the same reasons, surrender would violate Articles 4, 6 and 49 of the Charter. Accordingly, surrender is prohibited by s. 37 of the European Arrest Warrant Act 2003’.
A second general point of objection related to the absence of safeguards pertaining to the respondent's release from custody. Under this objection, the respondent claimed that he would not be provided with access to the necessary rehabilitative services to satisfy the parole board and as a result this would constitute a violation of his rights under Articles 3 and 5(1) of the European Convention on Human Rights. It was also said that the evidence suggested that there was a the risk that the parole board will not conduct sufficient regular reviews of the respondent's case so as to ascertain when release would be appropriate and consequently his rights under Article 5(4) of the ECHR would be violated.
This claim appeared to be based upon the affidavit...
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