Minister for Justice and Equality v Shahzad

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 08 February 2021
• Neutral Citation: [2021] IEHC 89
• Docket Number: [2020 No. 197 EXT.]
• Court: High Court
• Date: 08 February 2021

Between

Minister for Justice and Equality

Applicant

and

Salman Shahzad

Respondent

[2021] IEHC 89

[2020 No. 197 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 45 – Applicant seeking an order for the surrender of the respondent to the United Kingdom pursuant to a European arrest warrant – Whether surrender was precluded by reason of the sentence having been imposed in absentia

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Shahzad, to the United Kingdom of Great Britain and Northern Ireland (the UK) pursuant to a European arrest warrant, dated 20th March, 2020 (the EAW), issued by District Judge Zani, Westminster Magistrates’ Court, as the issuing judicial authority. The surrender of the respondent was sought in order to execute a sentence of 8 years’ imprisonment imposed upon him in respect of an offence of conspiracy to defraud, all of which remained to be served. The respondent objected to his surrender on the following grounds: (i) surrender was precluded by reason of the sentence having been imposed in absentia where the requirements of s. 45 of the European Arrest Warrant Act 2003, as amended, were not met; and (ii) surrender was precluded by reason of the fact that the enforceable judgment as set out at part B of the EAW contained a recommendation for deportation and the respondent would not have the protection of the Court of Justice of the European Union in respect of such a process.

Held by Burns J that the requirements as set out at point 3.2 of table D of s. 45 of the 2003 Act had been complied with as regards the trial, including the sentence, the subject matter of the proceedings. Furthermore, he was satisfied that in so far as the respondent absented himself from the proceedings of which he was aware, this was an informed decision on his part not to take any further personal part in the proceedings and to effectively waive his right to be in attendance; he continued to be legally represented throughout the proceedings and there was no suggestion that he withdrew the mandate of his legal team to represent him. Having considered the decision of the Supreme Court in Minister for Justice v Zarnescu [2020] IESC 59, Burns J was satisfied that the defence rights of the respondent were adequately protected and were not breached. Burns J dismissed the respondent’s objection to surrender based on s. 45 of the 2003 Act. Burns J held that there was no reasonable basis on which the Court could conclude that there was a real risk that, if surrendered, the respondent’s fundamental rights would not be respected. Burns J found that no evidence was put before the Court to support such a submission. Furthermore, he noted that s. 4A of the 2003 Act provides for a rebuttable presumption that an issuing state will comply with the requirements of the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, which in turn incorporates respect for fundamental human rights. He found that the respondent had not adduced any evidence to rebut the said presumption. Burns J dismissed the respondent’s objection based upon the reference in the enforceable judgment to a recommendation that he be deported.

Burns J held that, having dismissed the respondent’s objections, the Court would make an order pursuant to s. 16(1) of the 2003 Act for the surrender of the respondent to the UK.

Application granted.

JUDGMENT of Mr. Justice Paul Burns delivered on the 8th day of February, 2021

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 20th March, 2020 (“the EAW”), issued by District Judge John Zani, Westminster Magistrates' Court, as the issuing judicial authority. The surrender of the respondent is sought in order to execute a sentence of 8 years' imprisonment imposed upon him in respect of an offence of conspiracy to defraud, all of which remains to be served.

2 The EAW was endorsed by the High Court on 18th August, 2020 and the respondent was arrested and brought before the High Court on 9th September, 2020.

3 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.

4 I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise and that the surrender of the respondent is not prohibited for the reasons set forth therein.

5 I am satisfied that the minimum gravity requirements of the Act of 2003 are met. The term of imprisonment in respect of which the respondent's surrender is sought is 8 years.

6 Part E of the EAW indicates that the sentence in question was imposed in respect of a single offence and the circumstances of the offence, including the extent of the respondent's participation in same, is set out. As regards correspondence, 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 warrant is an offence to which article 2(2) of the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States (“the Framework Decision”) applies and, under the law of the issuing state, the offence is punishable with a maximum term of not less than 3 years imprisonment. In this instance, the issuing judicial authority has certified that the offence is an offence to which article 2(2) of the Framework Decision applies, the offence is punishable by imprisonment for a maximum period of not less than 3 years and has indicated the relevant box at part E of the EAW for “fraud including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests”. 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. No issue was taken in respect of correspondence.

7 The respondent objected to his surrender on the following grounds:-

• (i) surrender is precluded by reason of the sentence having been imposed in absentia where the requirements of s. 45 of the Act of 2003 were not met; and

• (ii) surrender is precluded by reason of the fact that the enforceable judgment as set out at part B of the EAW contains a recommendation for deportation and the respondent will not have the protection of the Court of Justice of the European Union (“the CJEU”) in respect of such a process.

Section 45 of the Act of 2003

8 At part D of the EAW, the issuing judicial authority has indicated that the respondent did not appear in person at the trial resulting in the decision and its reliance upon the equivalent of paragraph 3.1a of the table set out at s. 45 of the Act of 2003 that “the person was summoned in person on 11/04/2013… 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”.

9 The respondent submitted that part D of the EAW had been incorrectly completed by the issuing judicial authority. Mr. Tony Hughes, solicitor for the respondent, swore an affidavit dated 22nd October, 2020, in which he averred that the respondent had instructed him that he had not received any notification as set out in the EAW. The affidavit was accepted into evidence by the Court due to pandemic-related difficulties as regards...