Minister for Justice and Equality v Fitton
| Jurisdiction | Ireland |
| Judge | Mr. Justice Paul Burns |
| Judgment Date | 27 January 2021 |
| Neutral Citation | [2021] IEHC 61 |
| Docket Number | [2020 No. 136 EXT.] |
| Court | High Court |
| Date | 27 January 2021 |
[2021] IEHC 61
Paul Burns
[2020 No. 136 EXT.]
THE HIGH COURT
European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 37 – Applicant seeking an order for the surrender of the respondent to the United Kingdom pursuant to a European arrest warrant – Whether surrender was precluded as it would amount to a breach of the respondent’s right to life
Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Fitton, to the United Kingdom of Great Britain and Northern Ireland (the UK) pursuant to a European arrest warrant dated 12th June, 2020, issued by District Judge Snow, Westminster Magistrates’ Court, as the issuing judicial authority. The surrender of the respondent was sought in order to execute the remainder of a custodial sentence imposed upon him in respect of an offence of causing grievous bodily harm to another prisoner while the respondent was in custody. At hearing, counsel for the respondent argued three grounds of opposition, being the risk of harm to the respondent if surrendered, the risk of prosecution for other offences and the departure of the UK from the European Union.
Held by Burns J that, on foot of the additional information received from the issuing state, he was satisfied that if there was any risk to the respondent’s health and safety in custody upon surrender, of which there appeared to be very little evidence, same would be adequately assessed and addressed by the UK authorities. Burns J dismissed the respondent’s objection based on an alleged threat to his life or safety if surrendered. Burns J was satisfied that the respondent had failed to adduce any cogent evidence to rebut the presumption provided in s. 22(3) of the European Arrest Warrant Act 2003, as amended. Burns J held that the bare assertions made by the respondent, through his solicitor, 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 European Charter of Fundamental Rights, the European Convention on Human Rights or the Constitution would be breached. Burns J dismissed the respondent’s objection in that regard.
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.
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 (“the EAW”) dated 12th June, 2020, issued by District Judge Michael Snow, Westminster Magistrates’ Court, as the issuing judicial authority. The surrender of the respondent is sought in order to execute the remainder of a custodial sentence imposed upon him in respect of an offence of causing grievous bodily harm to another prisoner while the respondent was in custody.
The EAW was endorsed by the High Court on 1st July, 2020 and the respondent was arrested and brought before this Court on 2nd August, 2020.
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.
On foot of additional information received from the issuing state, I am satisfied that the respondent appeared in person at the hearing resulting in his conviction and sentence, and that no issue arises in respect of s. 45 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”).
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 1 year, 9 months and 13 days.
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, as amended (“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 “ murder/grievous bodily injury”. 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 that certification. In any event, I am satisfied on reading the EAW that correspondence clearly exists in respect of the offence in the EAW and the offence under Irish law of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act, 1997. No issue was taken in respect of correspondence.
The respondent filed points of objection to his surrender, dated 21st September, 2020, which amounted to a submission that surrender is precluded by reason of s. 37 of the Act of 2003 as it would be incompatible with the State's obligations under the European Convention on Human Rights (“the ECHR”) and/or the Constitution, and in particular:-
(i) there was a real risk the respondent would be subjected to inhuman and degrading treatment in detention;
(ii) the respondent had not been arrested, questioned, charged or convicted in relation to the alleged behaviour relied upon to revoke his release on licence;
(iii) the respondent's family rights would be breached; and
(iv) the length of sentence remaining to be served was incorrectly stated in the EAW.
The hearing date in this matter was set for 5th November, 2020 but the matter was not in a position to proceed that day. A new hearing date was set for 4th December, 2020, and on that date, the Court was informed that the respondent had decided to discharge his legal representatives, and new legal representatives appeared on his behalf and sought an adjournment of the matter. No notice was given to the Court or the applicant of this intended change of legal representation and it seems that the respondent's then legal team were also given very short notice of same. The new legal representatives indicated that the respondent wished to argue different grounds of objection, including that surrender should be refused as a result of the UK having withdrawn from the European Union (“the EU”) and the then imminent end of the relevant transition arrangements on 31st December, 2020. It was with some reluctance that the Court granted the application for an adjournment in such circumstances. A new hearing date was set for 10th December, 2020.
The respondent filed an amended notice of objection to surrender dated 8th December, 2020, which can be summarised as follows:-
(i) surrender is precluded under s. 37 of the Act of 2003 as it would amount to a breach of his right to life;
(ii) surrender is precluded under s. 37 of the Act of 2003 as it would amount to a breach of his right not to be subjected to inhuman or degrading treatment; and
(iii) surrender is precluded by s. 22 of the Act of 2003 as he believed the UK intended to prosecute him for offences which are not the subject of the EAW.
On 10th December, 2020, counsel for the respondent indicated he was in a position to deal with the...
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