Minister for Justice and Equality v Kerrigan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 07 November 2019 |
| Neutral Citation | [2019] IEHC 790 |
| Docket Number | [2019 No. 197 EXT] |
| Court | High Court |
| Date | 07 November 2019 |
[2019] IEHC 790
[2019 No. 197 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 the respondent’s surrender would be in breach of s. 37 of the European Arrest Warrant Act 2003
Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Kerrigan, to the United Kingdom for the purpose of the prosecution of the respondent of offences described in a European arrest warrant (EAW) issued by district judge Griffiths of Westminster Magistrates’ Court, as issuing judicial authority, on 6th June, 2019. The EAW was stated to relate to two offences, one of murder, contrary to common law, and the other of attempted murder, contrary to the Criminal Attempts Act 1981. The respondent contended that the EAW was unclear or ambiguous as to whether the surrender of the respondent was required for the purpose of prosecution, sentencing or execution of a sentence. It was argued that it was necessary to demonstrate correspondence between the acts described in the EAW and the offence of attempted murder or some other offence in Ireland’s jurisdiction. The respondent also objected to his surrender because, if convicted, he would be sentenced to a determinate sentence with a custodial element and a licence element in the issuing state, and the laws of the State do not provide a legal basis for giving force and effect to such a sentence in Ireland’s jurisdiction. The respondent stated that if convicted and sentenced he wished to serve his sentence in Ireland, and he argued that this was oppressive, arbitrary and contrary to law. The respondent submitted that the Court should ensure that a warrant for the arrest of the respondent had in fact been issued prior to the issue of the EAW by raising this query with the issuing judicial authority, in circumstances where the arrest warrant was stated to bear the same date as the EAW. The respondent objected that if he was surrendered, he would be exposed to a real risk of a violation of his rights under either or both of Articles 2 and 3 of the European Convention on Human Rights and/or his right to bodily integrity pursuant to Article 40.3.1 of the Constitution and/or Article 2 and Article 6 of the Charter of Fundamental Rights of the European Union; consequently, his surrender would be in breach of s. 37 of the European Arrest Warrant Act 2003. The risk identified by the respondent was that, by reason of the extent of inter-prisoner violence in the prisons in which he was most likely to be incarcerated, he would be exposed to the risk of violent assault.
Held by Binchy J that it was clear that the purpose of the warrant was to prosecute the respondent for the offences described therein at para. (E). Binchy J held that the description of the actions comprising the attempted murder described in the EAW would certainly amount to an offence in Ireland’s jurisdiction. Binchy J did not consider that a sentencing regime which affords a significant concession to a convicted person by way of his release upon a licence could be considered as oppressive or arbitrary. Binchy J held that the fact that the warrant and the EAW bear the same date does not create any uncertainty or ambiguity, and nor does it alter the general obligation of the Court to presume that the procedures have been correctly followed. It was in Binchy J’s view correct and appropriate for the Court to proceed on the basis that the issue of the arrest warrant preceded the issue of the EAW. Binchy J held that the fact that there is a greater risk of inter-prisoner violence in one prison more than in another falls a long way short of constituting substantial grounds for believing that an individual would be exposed, because of the conditions of detention in the prison where the risk of inter-prisoner violence is greater, to a real risk of inhuman or degrading treatment.
Binchy J ordered the surrender of the respondent to the authorities in the United Kingdom for the purposes set forth in the EAW.
Application granted.
In these proceedings, the applicant seeks an order for the surrender of the respondent to the United Kingdom for the purpose of the prosecution of the respondent of offences described in a European Arrest Warrant (“EAW”) issued by district judge Sarah Jane Griffiths of Westminster Magistrates’ Court, as issuing judicial authority, on 6th June, 2019. The EAW was endorsed by this Court on 7th June, 2019, and the respondent was arrested thereunder on 10th June, 2019, and remanded in custody thereafter.
The warrant is stated to relate to two offences, one of murder, contrary to common law, and the other of attempted murder, contrary to an act entitled the Criminal Attempts Act 1981. At para. (E) of the EAW, it is stated that the respondent along with two others who have already been charged, together with a fourth person, murdered a named individual (the first offence), and were subsequently involved in the attempted murder of another (the second offence). It is stated that this is a gang-related case, and that the attack on the deceased was a pre-planned attack. It is stated that CCTV footage shows three males including the respondent chasing the victim and striking him with knives.
As regards the second offence, the EAW states that the vehicle in which the respondent and the others with him were travelling at the time of the first offence left the scene of that offence and, within approximately 15 minutes, two males got out of their vehicle, armed with knives, which they punched at the back of the victim. The victim has four stab wounds in the middle of his back. The police arrive in a police vehicle, and, following upon a chase, the respondent is identified as one of the people who later alights from the vehicle used in connection with both offences. It is stated that he runs away and turns back to face the camera and the police vehicle. It is stated that at this stage his face is partially covered in a white T-shirt and he is carrying something in his hand. Later, police find a white T-shirt and a knife discarded close by, both of which contain the DNA of the respondent. The issuing judicial authority has ticked murder/grievous bodily injury at para. (E)/I of the EAW, apparently in relation to both offences.
The respondent swore an affidavit in opposition to this application dated 19th July, 2019, and points of objection were delivered on his behalf on 2nd October, 2019. In his affidavit, the respondent asserts that if he is convicted in the United Kingdom of the offences described in the EAW he wishes to be returned to this country to serve his sentence. However, he avers that if he is convicted in respect of the attempted murder charge he will face a determinate sentence, and at present requests for the transfer of determinate sentences from the United Kingdom to Ireland are not being processed because of the absence of legislation.
He further avers that if he is surrendered, he has been advised by lawyers in the United Kingdom that he may be sent to HMP Wormwood Scrubs depending on the magistrates’ court that he first attends. However, he could also be sent to either of HMP Pentonville, or HMP Thameside. Since his case will go to the Old Bailey, another possibility is that he might be sent to HMP Belmarsh.
The respondent then refers to criticisms of these prisons by HM Chief Inspector of Prisons (the “Chief Inspector”) and refers to reports issued by the Chief Inspector in 2017 in connection with the first three prisons, and in 2018 in connection with Belmarsh. He avers that he is concerned for his safety and well-being if returned to the United Kingdom. He says that he resided with his aunt in London and there have been a number of attacks on her property. These attacks have continued while he has been detained here in Cloverhill prison. He also says that his life has been openly threatened on social media on a number of occasions, and having regard to all of this he believes that his life would be in danger if he is incarcerated in the United Kingdom.
A notice of objection to surrender was filed on behalf of the respondent on 2nd October, 2019. This application then came on for hearing on 30th October, 2019. Thirteen points of objection were raised on behalf of the respondent, but not all were pursued and in this decision I will address only those that were pursued by the respondent at the hearing of this application.
It was contended on behalf of the respondent that the EAW was unclear or ambiguous as to whether the surrender of the respondent was required for the purpose of prosecution, sentencing or execution of a sentence. In this regard the respondent was effectively relying upon the failure on the part of the issuing authority to strike out standard form portions of the EAW that were not of application in this case. So, for example, the opening paragraph of the EAW states: “I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order” and at para. (F) of the warrant it is stated: “if the executing judicial authority is required by its domestic law to refuse to surrender the requested person on the grounds of Article 4 (6) of the Council Framework Decision on the European arrest warrant, it is requested to supply an undertaking that it will execute the sentence in accordance with its domestic law”. The text relied upon by the respondent in support of this objection is text that appears...
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