Minister for Justice and Equality v Purse

JurisdictionIreland
JudgeMr. Justice Paul Burns
Judgment Date09 October 2020
Neutral Citation[2020] IEHC 515
Docket NumberRECORD NUMBER 2020/002 EXT
CourtHigh Court
Date09 October 2020
BETWEEN
MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
AND
WESLEY DAVID PURSE
RESPONDENT

[2020] IEHC 515

Paul Burns

RECORD NUMBER 2020/002 EXT

THE HIGH COURT

European arrest warrant – Surrender – Right to a fair trial – Applicant seeking an order for the surrender of the respondent to the United Kingdom pursuant to a European arrest warrant – Whether the respondent’s right to a fair trial was breached

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent to the United Kingdom of Great Britain and Northern Ireland (the UK) pursuant to a European arrest warrant dated 8th November, 2019 (the EAW) issued by Judge Fletcher, Circuit Judge of the Crown Court of England and Wales, as the issuing judicial authority. The EAW sought the surrender of the respondent for the enforcement of a court order dated 1st July, 2016 imposing a sentence of 12 years’ imprisonment in respect of an offence regarding the supply of a controlled substance, and also sought the surrender of the respondent for prosecution in respect of a number of other offences, viz. wounding with intent to cause grievous bodily harm, unlawful and malicious wounding (as an alternative to the preceding offence), affray and possession of an offensive weapon in a public place. Counsel for the respondent submitted that the respondent was not present for the course of his trial or sentencing. He submitted that the documentation before the Court did not show that he had been informed of the scheduled date and place of the trial which resulted in the decision, or that he was informed that a decision may be handed down if he did not appear for trial. The respondent had been informed on 18th August, 2015 of a trial date of 13th October, 2015 in relation to an offence of being concerned in the supply of a class A drug to another. No trial took place on 13th October, 2015 and at the trial which eventually took place in June/July 2016, the respondent was convicted and sentenced in respect of an offence of conspiracy to supply a class A drug to another. While the respondent was legally represented at the trial and sentence, it was submitted that there was no evidence that he had given a mandate to a lawyer to defend him. It was further submitted that the documentation raised sufficient concerns about the manner in which the proceedings against him had been conducted so that surrender on foot of the EAW would be incompatible with the State’s obligations under the European Convention on Human Rights (the ECHR) and/or the Constitution and was thereby prohibited pursuant to s. 37 of the Act of the European Arrest Warrant Act 2003. In particular, counsel for the respondent referred to the respondent’s fair procedure rights under article 6 ECHR and submitted that the offence with which he was convicted appeared to be different to that which he was facing when he was last personally before the Courts; in effect that a new charge had been added or substituted in his absence. He further submitted that as the additional information indicated that the respondent had no right to a retrial, this raised concerns as to whether this extradition could be compatible with the State’s obligations under the ECHR.

Held by Burns J that, on the basis of the reasoning of Donnelly J in Minister for Justice and Equality v Fiszer [2015] IEHC 664 and Minister for Justice and Equality v Lipatovs [2019] IEHC 126, there had been no flagrant denial of justice in the UK by the Court proceeding to sentence the respondent in circumstances where there was a clear waiver of his right to be present at the trial, including sentence, and where he was represented at that trial; his surrender therefore would not be incompatible with the State’s obligations under the ECHR or the Constitution. Burns J held that the respondent had not adduced any authorities to support his proposition that the amendment or substitution of the original charge in the circumstances of this case amounted to a breach of his fundamental rights, and in particular his right to a fair trial.

Burns J held that the Court would make an order pursuant to s. 16 of the 2003 Act for the surrender of the respondent to the UK.

Application granted.

Judgment of Mr. Justice Paul Burns delivered on the 9th day of October, 2020
1

By this application the applicant seeks an order for the surrender of the respondent to the United Kingdom of Great Britain and Northern Ireland (“the UK”) pursuant to a European arrest warrant dated 8th November, 2019 (“the EAW”) issued by Judge David Fletcher, Circuit Judge of the Crown Court of England and Wales, as the issuing judicial authority.

2

The EAW seeks the surrender of the respondent for the enforcement of a court order dated 1st July, 2016 imposing a sentence of 12 years' imprisonment in respect of an offence regarding the supply of a controlled substance, and also seeks the surrender of the respondent for prosecution in respect of a number of other offences, viz. wounding with intent to cause grievous bodily harm, unlawful and malicious wounding (as an alternative to the preceding offence), affray and possession of an offensive weapon in a public place.

3

The EAW was endorsed on 20th January, 2020 and the respondent was arrested and brought before this Court on 27th January, 2020. The respondent was remanded in custody as he is currently serving a sentence of five years' imprisonment in this jurisdiction in respect of offences under the Misuse of Drugs Acts.

4

I am satisfied that the person before the Court is the person in respect of whom the warrant was issued. This was not put in issue by the respondent.

5

I am satisfied that the minimum gravity requirements of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), are met in respect of both the sentence, which has a remainder of 12 years to be served, and the alleged offences for prosecution referred to in the EAW which carry the following maximum penalties:-

(a) wounding with intent to cause grievous bodily harm - life imprisonment;

(b) unlawful wounding - five years' imprisonment;

(c) affray - three years' imprisonment; and

(d) possession of offensive weapons - four years' imprisonment.

6

No issue was taken in respect of correspondence between the offences referred to in the EAW and offences under Irish law. In any event, I am satisfied that such correspondence exists and was proven before the Court.

7

I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the Act of 2003 arise and that the surrender of the respondent is not prohibited for the reasons set forth therein.

8

The respondent delivered points of objection dated 2nd March, 2020 and a short affidavit of the same date in which the respondent averred, inter alia, as follows: -

“The warrant states that I was summonsed in person on the 18th of August 2015 and thereby informed of the date and place of trial. I say that I was before the court in relation to the Drugs offences since 2014 and had been before the court on several dates, however, I was not present at the hearing on the 1st July 2016 and was not aware it was on that day. I say that I do not know if any lawyer appeared on my behalf and I believe I was not represented at the hearing in which I was sentenced to a 12-year prison sentence. I say that the warrant does not refer to any right of an appeal or retrial in the absence of such right of appeal or retrial I object to my surrender.”

9

At the initial hearing of this matter, counsel on behalf of the respondent indicated that he was only going to address the Court in respect of one of the points of objection, which reads as follows:-

“The proposed surrender of the Respondent, for the offences as set out in the European arrest warrant is in breach of section 45 of the European Arrest Warrant Act of 2003 because the Respondent was convicted and sentenced to 12 years imprisonment in his absence on the 1st July 2016 and was not legally represented at the hearing.”

Later in the proceedings, counsel for the respondent reasonably expanded his arguments on foot of additional information provided.

The Contents of the Warrant and Additional Information
10

At part (d) of the warrant, where asked to indicate whether the person requested appeared in person at the trial resulting in the decision, the issuing judicial authority ticked box 2 as follows:-

“No the person did not appear in person at the trial resulting in the decision.”

In response to the direction “3. If you have ticked the box under point 2, please confirm the existence of one of the following:”, the issuing judicial authority ticked box 3.1a as follows:-

“the person was summoned in person on 18/08/15 (day/month/year) and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial.”

11

Pursuant to s. 20 of the Act of 2003, the Court furnished a copy of the respondent's affidavit to the UK authority seeking its comments in respect thereof and further requested as follows:-

“It is noted that at paragraph D3.1.a of the EAW it is stated that Mr Purse was summonsed in person on 18th August, 2015. Please state if he was informed of the hearing date of 1st July, 2016 on that date and if not, please clarify when he was informed of the hearing date of the 1st July, 2016.”

12

A reply to that request was received from a senior district crown prosecutor dated 30th March, 2020. No issue was taken in relation to the source of the reply or as to its admissibility. The writer of the reply indicated that she did not have access to a copy of the EAW or the affidavit referred to in the letter. She indicated that she had access to the Crown Prosecution Service electronic case management system and had located the...

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    • Ireland
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    • October 24, 2022
    ...are repeated and reiterated in Minister for Justice and Equality v. Hall [2009] IESC 40, in Minister for Justice and Equality v. Purse [2020] IEHC 515, in AG v. Marques [2016] IECA 374, and in Minister for Justice and Equality v. Balmer [2016] IESC 25. 46 . Section 37 (1) a of the Act of 20......
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    ...of s. 45 of the Act of 2003 (see Minister for Justice v. Fiszer [2015] IEHC 664 and Minister for Justice and Equality v. Purse [2020] IEHC 515). I dismiss the respondent's objections to surrender based on s. 45 of the Act of EAW 2 16 At part D of EAW 2, the issuing judicial authority has in......
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    ...of s. 45 of the Act of 2003 (see Minister for Justice v. Fiszer [2015] IEHC 664 and Minister for Justice and Equality v. Purse [2020] IEHC 515). I dismiss the respondent's objections to surrender based on s. 45 of the Act of EAW 2 16 At part D of EAW 2, the issuing judicial authority has in......
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