Minister for Justice and Equality v D.E.

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 10 December 2020
• Neutral Citation: [2020] IEHC 657
• Date: 10 December 2020
• Docket Number: RECORD NUMBER 2019/392 EXT
• Court: High Court

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

D.E.

RESPONDENT

[2020] IEHC 657

Paul Burns

RECORD NUMBER 2019/392 EXT

THE HIGH COURT

European arrest warrant – Surrender – Lack of detail – Applicant seeking an order for the surrender of the respondent to the United Kingdom of Great Britain and Northern Ireland pursuant to a European arrest warrant – Whether the European arrest warrant failed to contain sufficient details

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 1st October, 2019 (the EAW) issued by Judge Lowe, Canterbury Crown Court, as the issuing judicial authority. The EAW sought the surrender of the respondent for prosecution in respect of three alleged sexual offences concerning a child. The respondent delivered points of objection dated 12th February, 2020 summarised as follows: (i) the EAW failed to contain sufficient details as required by s. 11 of the European Arrest Warrant Act 2003, as amended; (ii) surrender was precluded by s. 37 of the 2003 Act as it would amount to an unjustified breach of the respondent’s right to a family life under article 8 of the European Convention on Human Rights (the ECHR) or his right not to be subjected to inhuman and degrading treatment under article 3 thereof; and (iii) surrender should be refused due to the uncertainty created by the UK’s intended departure from the European Union (the EU).

Held by Burns J that sufficient details as to the offences in respect of which the surrender of the respondent was sought had been provided; the number of offences had been set out, the location and timeframe for each offence had been set out and the nature of the acts complained of and the identity of the complainant had all been set out. Burns J did not believe the respondent was at any disadvantage due to any lack of detail in the EAW as regards issues such as correspondence, specialty, or any other aspect of the EAW system. Burns J was not satisfied that an order for the surrender of the respondent to face prosecution in respect of the serious offences alleged could be said to be incompatible with the State’s obligations under article 8 ECHR. Burns J noted that the alleged offences were serious offences and that there was no suggestion of culpable delay. Burns J held that the circumstances put forward by the respondent would not be a bar to prosecution in the State’s jurisdiction. Burns J noted that there was no suggestion of abuse of process. Burns J held that significant disruption to the family life of an accused or requested person and to the circumstances of other family members is almost an inevitable consequence of criminal or surrender proceedings. Burns J held that there was no evidence to support the respondent’s objection to surrender based upon a perception that, if surrendered, he would be subjected to inhuman and degrading treatment. Burns J held that there was no merit in the respondent’s objection to surrender based on the planned withdrawal of the UK from membership of the EU and that the matter had been dealt with by the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act, 2019 (part 15) (Commencement) Order, 2020. Burns J held that no cogent evidence was adduced to show any real risk of the respondent’s fundamental rights being violated should he be extradited to the UK. Burns J was satisfied that the surrender of the respondent was not prohibited by virtue of s. 37 or any other provision of part 3 of the 2003 Act.

Burns J held that the Court would make an order pursuant to s. 16(1) of the 2003 Act for the surrender of the respondent to the UK. Burns J held that the Court would make a further order postponing surrender on humanitarian grounds, pursuant to s. 18(1)(a) of the 2003 Act, for a period of six months to afford time for reasonable alternative care arrangements for the respondent’s wife and son to be put in place.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 10th day of December, 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 1st October, 2019 (“the EAW”) issued by Judge Rupert Lowe, Canterbury Crown Court, as the issuing judicial authority.

2 The EAW seeks the surrender of the respondent for prosecution in respect of three alleged sexual offences concerning a child.

3 The EAW was endorsed on 9th December, 2019 and the respondent was arrested and brought before this Court on 22nd January, 2020. The respondent was remanded on bail.

4 I am satisfied that the person before the Court is the person in respect of whom the EAW 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 the alleged offences referred to in the EAW which each carry a maximum penalty of 10 years' imprisonment.

6 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.

7 At part E of the EAW, three offences are set out, being one offence of gross indecency with a girl under 14 years old and two offences of indecent assault on a child under 16 years old. The offences alleged all involve the same complainant but she is not named in the EAW and the alleged location of the offences is not given. As regards the third offence, this is set out as:-

“Offence three being offences committed by [D.E.] against the victim on multiple occasions after the offence detailed in offence two above.”

8 As regards correspondence of offences, at part E of the EAW it is certified that the offences referred to therein fall within article 2(2) of the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), and the relevant box is ticked for “sexual exploitation of children and child pornography”. By virtue of s. 38(1)(b) of the Act of 2003, it is not necessary for the applicant to show correspondence between an offence in the EAW and an offence under Irish law where the offence in the EAW is an offence to which article 2(2) of the Framework Decision applies and, under the law of the issuing state, the offence is punishable by imprisonment for a maximum period of not less than 3 years. In this instance, the issuing judicial authority has certified that the offences are offences to which article 2(2) of the Framework Decision applies and has indicated same by ticking the relevant box at part E of the EAW as aforesaid. There is nothing in the EAW that gives rise to any ambiguity or perceived manifest error, such as would justify this Court in looking behind the certification in the EAW. In any event, I am satisfied on reading the EAW that correspondence clearly exists in respect of those offences and offences under Irish law. No issue was taken in respect of correspondence between the offences referred to in the EAW and offences under Irish law.

9 The respondent delivered points of objection dated 12th February, 2020 which may be summarised as follows:-

(i) the EAW failed to contain sufficient details as required by s. 11 of the Act of 2003;

(ii) surrender is precluded by s. 37 of the Act of 2003 as it would amount to an unjustified breach of the respondent's right to a family life under article 8 of the European Convention on Human Rights (“the ECHR”) or his right not to be subjected to inhuman and degrading treatment under article 3 thereof; and

(iii) surrender should be refused due to the uncertainty created by the UK's intended departure from the European Union (“the EU”).

10 The respondent delivered an affidavit dated 18th March, 2020 in which he set out his personal circumstances. The respondent is now 78 years old and resides with his wife and son in the west of Ireland. The family moved to Ireland in September 2013 as they could afford to purchase a residence in the west of Ireland which was more suitable to the family's needs, whereas similar properties in the UK were too expensive. Both the respondent's wife and son suffer from significant physical disabilities. The respondent acts as a full-time carer, particularly in relation to his son. The respondent's son was born with spastic cerebral palsy with diplegia, he has limited mobility and is dependant in many of the activities of daily living. The respondent's wife has a congenital hemiplegia due to cerebral palsy which was exacerbated by a road traffic accident in 2004. The respondent's son has a good academic record and was hoping to attend third level college in autumn 2020, provided sufficient supports could be put in place.

11 The wife of the respondent also swore an affidavit herein dated 24th July, 2020, in which she stated she is 58 years old and set out her health difficulties, particularly after the road traffic accident in 2004. She also indicated that the reason the family moved to Ireland was because of the price of suitable housing that would meet their particular needs. She highlighted how the respondent had to date provided essential care to their son and herself.

12 The respondent relied upon a report from Ms. Noreen Roche, a nursing consultant, dated 16th October, 2020 which set out in detail the disabilities suffered by the respondent's wife and son, and the care needs of each, respectively. Ms. Roche did not have the benefit of a consultation with the respondent's son. In the opinion of Ms. Roche, the...