Minister for Justice and Equality v McDonagh

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 23 July 2020
• Neutral Citation: [2020] IEHC 387
• Docket Number: RECORD NUMBER 2020/42 EXT
• Court: High Court
• Date: 23 July 2020

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

PETER MC DONAGH

RESPONDENT

[2020] IEHC 387

Paul Burns

RECORD NUMBER 2020/42 EXT

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 23rd day of July, 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 January, 2020 (“the warrant”) issued by District Judge Fiona Bagnall as the issuing judicial authority.

2 The warrant was endorsed by the High Court on 10th February, 2020 and the respondent was arrested and brought before the High Court on 4th March, 2020 when he was remanded in custody.

3 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.

4 I am further satisfied that none of the matters referred to in ss. 21A, 22, 23 or 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 The surrender of the respondent is sought in order to prosecute him in respect of one offence of theft and also to serve the remainder of a sentence of imprisonment imposed on 8th May, 2018 in respect of ten offences of fraud and one offence of possessing criminal property.

6 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The offence in respect of which it is intended to prosecute him carries a maximum penalty of up to 10 years’ imprisonment. The remainder of the sentence he is required to serve amounts to 2 years and 3 months’ imprisonment.

7 In relation to the sentence imposed upon the respondent in 2018, part (d) of the warrant indicated that the respondent had attended at his trial for a number of days commencing on 23rd April, 2018, but failed to attend after the close of the prosecution case or thereafter and was convicted in his absence on 8th May, 2018. At part (d) of the warrant, the issuing judicial authority had ticked box 1 to indicate that the respondent had appeared in person at the trial resulting in the decision and had also ticked box 3.4 to indicate that the respondent was not personally served with the decision, but that he would be personally served with the decision without delay after the surrender and when so served he would be informed of his right to a retrial or appeal and would be informed of the timeframe within which he had to request a retrial or appeal, which would be a number of days, the amount of which wasn't stated.

8 The respondent delivered undated points of objection to surrender which can be summarised as follows:-

(i) contrary to s. 11 of the Act of 2003, there was insufficient detail in the warrant concerning the offences of which he had been convicted and was required to serve the remainder of the sentence;

(ii) it was not possible to establish correspondence with the offence of possession of criminal property;

(iii) part (d) of the warrant was unclear as to a right of appeal/rehearing and the requirements of s. 45 of the Act of 2003 were not met; and

(iv) the remainder of the sentence which the respondent was required to serve if surrendered would not expire until after the UK had departed from the European Union, although this was not pursued at hearing.

9 By way of additional information dated 11th March, 2020, the UK authorities indicated that the timeframe within which the respondent could appeal his conviction had expired but that he was entitled to apply at any stage for leave to appeal out of time. The additional information also provided further details in relation to the ten fraud offences in respect of which the respondent had been convicted.

10 The UK authorities furnished additional information dated 20th March, 2020 providing further details of the ten fraud offences in respect of which the respondent had been convicted. The additional information of that date set out the principles which would be applied to an application to extend the time for appeal and it was indicated that the caselaw suggested that justice prevails over procedure and the merits of the grounds of appeal would be considered, but an extension would be refused if there was no reasonable prospect of success. It was confirmed that the respondent was represented by a solicitor and counsel throughout the trial including the sentence hearing.

11 When this matter came on for hearing before this Court, no objections to surrender were pursued in respect of the requested surrender of the respondent to face prosecution for the single offence of theft. The issue as regards whether sufficient...