Minister for Justice and Equality v Delano Demetrius Brissett

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 10 February 2021
• Neutral Citation: [2021] IEHC 95
• Docket Number: [2020 No. 230 EXT.]
• Court: High Court
• Date: 10 February 2021

Between

Minister for Justice and Equality

Applicant

and

Delano Demetrius Brissett

Respondent

[2021] IEHC 95

[2020 No. 230 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – Risk to life – Applicant seeking an order for the surrender of the respondent to the United Kingdom pursuant to a European arrest warrant – Whether if surrendered the applicant’s right to life or personal safety would be at risk

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Brissett, to the United Kingdom of Great Britain and Northern Ireland (the UK) pursuant to a European arrest warrant dated 7th May, 2020 issued by Judge Parkes of Winchester Crown Court, as the issuing judicial authority. The surrender of the respondent was sought in order to execute a custodial sentence of 6 years and 6 months’ imprisonment imposed upon him on 19th March, 2018. The respondent’s objections to surrender were as follows: (i) if surrendered, he would be prosecuted for a separate offence of breach of bail for which his extradition had not been sought, in breach of the rule of specialty as incorporated into article 27 of the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States and s. 22 of the European Arrest Warrant Act 2003; (ii) if surrendered his right to life or personal safety would be at risk; and (iii) if surrendered there was a risk that his fundamental rights would be breached in circumstances where the UK had withdrawn from the European Union.

Held by Burns J that, regardless of whether or not breach of bail or failure to attend court may be prosecuted as an offence in the UK, he was satisfied that there was no cogent evidence of a real risk that the respondent, if surrendered, would be prosecuted and deprived of his liberty in breach of article 27 of the Framework decision, so as to render his surrender precluded under s. 22 of the 2003 Act. Burns J accepted the assurance of the issuing state that it would comply with the requirements of article 27 of the Framework Decision. On foot of the additional information received from the issuing state and having borne in mind the presumption under s. 4A of the 2003 Act, Burns J was satisfied that if there was any risk to the respondent’s safety in custody upon surrender, of which there appeared to be very little, if any, evidence, same would be adequately assessed and addressed by the UK authorities. Burns J held that the speculative assertions made by the respondent fell far short of the cogent evidence required to establish that there were substantial grounds for believing that, if surrendered, there was a real risk that his fundamental rights under the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights or the Constitution would be breached, or that the Framework Decision would not be applied.

Burns J held that, having dismissed the respondent’s objections to surrender, 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 10th 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 7th May, 2020 (“the EAW”) issued by Judge Richard Parkes of Winchester Crown Court, as the issuing judicial authority. The surrender of the respondent is sought in order to execute a custodial sentence of 6 years and 6 months' imprisonment imposed upon him on 19th March, 2018.

2 The EAW was endorsed by the High Court on 29th September, 2020 and the respondent was arrested and brought before this Court on 6th November, 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 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 in excess of 4 months.

5 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 EAW 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 “ illicit trafficking in narcotic drugs and psychotropic substances”. 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.

6 It is clear from the EAW that the respondent appeared at his trial up to the point of conviction and then absconded. Sentence was passed in his absence. In such circumstances, I am satisfied that the respondent waived his right to be present at the sentencing hearing. At hearing, counsel on behalf of the respondent indicated he was not pursuing any point of objection in that regard.

7 The respondent's objections to surrender can be summarised as follows:-

• (i) if surrendered, he would be prosecuted for a separate offence of breach of bail for which his extradition has not been sought, in breach of the rule of specialty as incorporated into article 27 of the Framework Decision and s. 22 of the Act...