Minister for Justice and Equality v McGrath

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 22 March 2021
• Neutral Citation: [2021] IEHC 236
• Docket Number: [2019 No. 142 EXT.]
• Court: High Court
• Date: 22 March 2021

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

NOEL MCGRATH

RESPONDENT

[2021] IEHC 236

Paul Burns

[2019 No. 142 EXT.]

THE HIGH COURT

European arrest warrant – Surrender – Correspondence – Applicant seeking an order for the surrender of the respondent to the United Kingdom pursuant to a European arrest warrant – Whether surrender was prohibited due to a lack of correspondence as regards the offences set out in the European arrest warrant and offences in the State

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr McGrath, to the United Kingdom of Great Britain and Northern Ireland (the UK) pursuant to a European arrest warrant dated 8th March, 2019 (the EAW) issued by District Judge Conner, of Belfast Magistrates’ Court, as the issuing judicial authority. The surrender of the applicant was sought in order to execute the remainder of a custodial sentence imposed upon him in respect of three offences, viz. robbery, carrying a firearm with an intent to commit an indictable offence and aggravated vehicle taking. At hearing, counsel for the respondent indicated that he was pursuing the following points of objection to his surrender: surrender is prohibited under s. 38 of the European Arrest Warrant Act 2003, as amended, due to a lack of correspondence as regards the offences set out in the EAW and offences in the State; surrender is prohibited by s. 22 of the 2003 Act on the basis that, if surrendered, the respondent would be prosecuted in the UK for an offence other than the offences referred to in the EAW; the EAW did not contain sufficient detail as required by s. 11 of the 2003 Act; and the sentence referred to in the EAW was not immediately enforceable and it was not clear what length of sentence he was required to serve.

Held by Burns J that he was satisfied upon reading the EAW in its totality that correspondence had been made out between the offences referred to in the EAW and offences in the State. He was satisfied that the EAW contained sufficient details as required by s. 11 of the 2003 Act. He held that the fact that the revocation of the respondent’s licence or the amount of the remaining period to be served was subject to review by the Parole Commissioners did not take away from the fact that the sentence was immediately enforceable; similarly, the fact that the respondent may benefit from a decision to release him under licence at some stage did not take away from the fact that he was required to serve the remaining period of his sentence as set out in the EAW, i.e. 3 years, 11 months and 13 days’ imprisonment. Burns J was satisfied that the surrender of the respondent was not prohibited by virtue of s. 22 of the 2003 Act. Burns J dismissed the respondent’s objections to his surrender.

Burns J held that the Court would make an order under 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 22nd day of March, 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 8th March, 2019 (“the EAW”) issued by District Judge Conner, of Belfast Magistrates’ Court, as the issuing judicial authority. The surrender of the applicant is sought in order to execute the remainder of a custodial sentence imposed upon him in respect of three offences, viz. robbery, carrying a firearm with an intent to commit an indictable offence and aggravated vehicle taking.

2 The EAW was endorsed by the High Court on 29th April, 2019 and the respondent was arrested and brought before this Court on 3rd June, 2020. The respondent was admitted to bail but failed to appear on 14th July, 2020, when it was initially intended to deliver this judgment. A bench warrant was issued and was executed on 18th March, 2021.

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 EAW indicates the matters required by s. 45 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”).

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 amounts to 3 years, 11 months and 13 days.

6 The respondent filed points of objection to his surrender dated 12th June, 2020, which may be summarised as follows:-

i. the applicant had to prove all matters required under the Act of 2003;

ii. surrender is prohibited under s. 38 of the Act of 2003 due to a lack of correspondence as regards the offences set out in the EAW and offences in the State;

iii. surrender is prohibited by s. 22 of the Act of 2003 on the basis that, if surrendered, the respondent would be prosecuted in the UK for an offence other than the offences referred to in the EAW;

iv. the EAW did not contain sufficient detail as required by s. 11 of the Act of 2003;

v. the sentence referred to in the EAW was not immediately enforceable and that it was not clear what length of sentence he was required to serve;

vi. surrender is prohibited by s. 37 of the Act of 2003 as it would be in breach of the respondent's rights under article 8 of the European Convention on Human Rights (“the Convention”) and thus incompatible with the State's obligations under the Convention;

vii. the respondent would not be given credit for time spent in custody in this jurisdiction on foot of the EAW; and

viii. the respondent would be exposed to an unacceptable risk from the Covid-19 virus.

7 At hearing, counsel for the respondent indicated that he was pursuing points (ii), (iii), (iv) and (v).

8 In light of the objections and submissions made on behalf of the respondent, it is helpful to set out various particulars contained within the EAW. At part (e) of the EAW, a description of the circumstances in which the offences were committed is set out as follows:-

“At 1:30 hours on 23 October 2012 the owner of a black Vauxhall Astra vehicle registration mark 05MN6002 discovered his vehicle had been stolen from outside his home at 22 Jerusalem Street, Belfast. On 25 October 2012 at 20:15 hours two males wearing balaclavas and latex gloves entered a Boots Chemist on Knockmore Road, Lisburn. One male approached the till and pointed a handgun at the pharmacist, Peter Johnston who was standing behind the counter. The male demanded that Mr Johnston come with him onto the shop floor. A sales assistant ran from the shop to raise the alarm. As Mr Johnston walked towards this male he noticed the other male removing perfume and aftershave from glass cabinets and placing them in a black holdall. The male with the handgun directed Mr Johnston to the left corner of the shop and asked him where his colleague was. Mr Johnston shouted for his colleague. The male then hit him behind the right ear and punched him to the right side of his face. The second male then said, ‘Right where's the drugs, morphine, amphetamines? We want them all?’ Mr Johnston opened the safe in the rear area and the second male removed the controlled drugs and placed them into the holdall. This male then ordered Mr Johnston onto the ground and instructed him not to get up. Both males then left the shop. As the shop assistant returned with others they observed a Vauxhall Astra registration 05MN6002 outside the shop. The engine was running; the doors were open and the lights were on. The two males ran out of the shop got into the vehicle and sped off onto the Knockmore Road travelling towards Laurel Hill School. At 20:20 hours the Police responded to the report of a robbery and observed this vehicle at the junction of the Nettlehill Road and Prince William Road, Lisburn with 3 persons aboard. The Police indicated for the Astra to stop. It failed to do so. The Astra travelled onto the Derriaghy Road and then the Milltown area. It was travelling on the wrong side of the road and its speed increased to 70 mph. The lights were off and the driver attempted to collide the car with the Police vehicle. The Astra overtook a number of vehicles travelling dangerously towards the ‘Cutts’ area. Police deployed a stinger device and subsequently caused the Astra to stop by overtaking and pulling in front of it. Police entered the Astra. Noel Charles McGrath was sitting in the rear of the vehicle holding a black handgun in his right hand which he then dropped. Police arrested him for armed robbery, possession of a firearms/imitation firearm whilst committing an offence, aggravated taking and obstructing Police. Latex gloves were retrieved from the property of Noel Charles McGrath. The Astra was searched by Police and perfume, aftershave and controlled drugs were recovered. Blood swabs taken from a tub of Diazepam located in the Vauxhall Astra 05MN6002 matched that obtained from a sample attributed to Peter Johnston. In the opinion of Jonathan Greer, Senior Scientific Officer, the black firearm meets the definition of an imitation firearm. Mr Johnston was treated for a fractured nose, bruises and swelling to the face. The controlled drugs were valued at £5,000.00 and the aftershave and perfumes were valued at £4,000.00. Boots staff have confirmed that the controlled drugs taken were methylphenidate, morphine and oxycodone. Noel Charles McGrath was accused of the 3 offences the subject of this warrant on 20 June 2013 and sentenced on 3 October 2013 to 4 years’ imprisonment and 4 years on licence. He is currently unlawfully at large.”

Correspondence

9 There was a degree of overlap between the objection as regards lack of detail as required by s. 11 and the correspondence issue under s. 38 of the Act of 2003. Counsel for the respondent accepted that...