Minister for Justice and Equality v John Joseph Myles Connors

• Jurisdiction: Ireland
• Judge: Ms. Justice Caroline Biggs
• Judgment Date: 11 January 2022
• Neutral Citation: [2022] IEHC 119
• Docket Number: [2021 No. 245 EXT.]
• Court: High Court

Between

Minister for Justice and Equality

Applicant

and

John Joseph Myles Connors

Respondent

[2022] IEHC 119

[2021 No. 245 EXT.]

THE HIGH COURT

Surrender – Judicial authority – European Arrest Warrant Act 2003 s. 22(7) – Applicant seeking the consent of the High Court to proceedings being brought against the respondent in the United Kingdom – Whether the issuing judicial authority was aware of and authorised the European Arrest Warrant Act 2003 s. 22(7) request

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court pursuant to s. 22(7) of the European Arrest Warrant Act 2003, as amended, seeking the consent of the High Court to proceedings being brought against the respondent, Mr Connors, in the United Kingdom (UK) for offences of theft, burglary and attempted burglary. The application was brought on foot of the receipt of a request in writing, dated the 10th of August 2021, from the issuing state attaching what was described by the issuing state as a consent request in the form of a Trade and Cooperation Agreement (TCA) warrant. That UK TCA warrant was issued on the 7th of July 2021, by District Judge Goozée sitting at Reading Magistrates’ Court. The respondent put the applicant on full proof of all relevant matters and objected to surrender on the following grounds: the respondent had not been arrested under the warrant that was issued by District Judge Goozée at Reading Magistrates Court, Reading, UK on the 7th of June 2021; he was not present in the state and/or the necessary pre-conditions for the making of an order under, pursuant to or on the basis of the relevant warrant were not satisfied such that it would be contra legem, ultra vires and otherwise unjust and unfair to make an order against the respondent in the proceedings; without prejudice to the contention that the respondent had not been adequately identified for the purposes of the application, the relevant warrant was in existence when, on the 8th of July 2021, without renouncing specialty, the respondent consented to his surrender to Northern Ireland; it was unfair to pursue him in such a piecemeal fashion and/or to seek to prosecute him for those matters; without prejudice to the foregoing, the application should be refused in circumstances where acts in respect of which the arrest warrant was based did not constitute an offence under the law of the state.

Held by Biggs J that the basic requirement of the 2002/584/JHA Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States as amended by Council Framework Decision 2009/299/JHA of 26th February 2009 (the Framework Decision) is that any request for surrender must be on foot of a decision made by a judicial authority in the issuing state. The court was not satisfied that the issuing judicial authority was aware of and authorised the s. 22(7) request.

Biggs J held that the court would not make an order pursuant to s. 22(7) of the 2003 Act.

Application refused.

JUDGMENT of Ms. Justice Caroline Biggs delivered on the 11th day of January, 2022

Background

1 On the 8th of July 2021, in proceedings bearing record number 2021/193 EXT, the respondent consented to surrender in respect of a Trade and Cooperation Agreement arrest warrant issued on the 2nd of July 2021. District Judge Conner sitting at Laganside Magistrate's Court, Belfast was the judicial authority who issued the TCA warrant. The respondent was sought to serve the balance of a custodial sentence imposed on him in 2020 for an attempted burglary offence. The respondent was serving a sentence in Castlerea prison which was due to expire on the 9th of July 2021 when he consented to surrender. He was surrendered to the Northern Ireland authorities within 10 days, on the 17th of July 2021. His sentence there was due to expire in February 2022, or sooner if he applied for early release.

Section 22(7) application

2 The proceedings before the court today, bearing record number 2021/245 EXT, concern an application pursuant to s. 22(7) of the European Arrest Warrant Act 2003, as amended, (“the Act of 2003”), which seeks the consent of the High Court to proceedings being brought against the respondent in the United Kingdom for offences of theft, burglary and attempted burglary. The application is brought on foot of the receipt of a request in writing, dated the 10th of August 2021, from the issuing state attaching what is described by the issuing state as a consent request in the form of a Trade and Cooperation Agreement warrant. That UK TCA warrant was issued on the 7th of July 2021, by District Judge Goozée sitting at Reading Magistrates' Court.

Points of objections:

3 The respondent puts the applicant on full proof of all relevant matters and objects to surrender on the following grounds:

• — The respondent has not been arrested under the warrant that was issued by District Judge Sam Goozée at Reading Magistrates Court, Reading, UK on the 7th of June 2021. He is not present in the state and/or the necessary pre-conditions for the making of an order under, pursuant to or on the basis of the relevant warrant are not satisfied such that it would be contra legem, ultra vires and otherwise unjust and unfair to make an order against the respondent in the within proceedings.

• — Without prejudice to the contention that the respondent has not been adequately identified for the purposes of the within application, the relevant warrant was in existence when, on the 8th of July 2021, without renouncing specialty, the respondent consented to his surrender to Northern Ireland. It is unfair to pursue him in such a piecemeal fashion and/or to now seek to prosecute him for these matters.

• — Without prejudice to the foregoing, the within application should be refused in circumstances where acts in respect of which the arrest warrant is based do not constitute an offence under the law of the state.

4 The matter therefore comes before the court on foot of a request seeking the High Court's consent to proceedings being brought against the respondent in the issuing state for an offence which was not covered by the Northern Ireland TCA warrant dated the 2nd of July 2021. In this jurisdiction, such an application is, in effect, an application by the issuing state for a waiver of specialty in circumstances where Ireland has chosen not to opt out of the specialty provisions contained in the 2002/584/JHA Council Framework Decision of 13th June 2002 on the European arrest warrant and the surrender procedures between Member States as amended by Council Framework Decision 2009/299/JHA of 26th February 2009 (“the Framework Decision”). The rule of specialty applies unless, in response to a request in writing from the issuing state, it is waived by the High Court pursuant to the provisions of ss. 22(7) and (8) of the Act of 2003. Sections 22(7) and (8) of the 2003 Act provide respectively:

“(7) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to —

• (a) proceedings being brought against the person in the issuing state for an offence,

• (b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person's liberty, in respect of an offence, or

• (c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence,

upon receiving a request in writing from the issuing state in that behalf.

(8) The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under this Act.”

The corresponding relevant provisions of the underlying Framework Decision are contained in Article 27 thereof, and in particular in Article 27(4). Article 27 (to the extent relevant) is in the following terms:

• “1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.

• 2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.

• 3. Paragraph 2 does not apply in the following cases:

  (g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.

• 4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.”

5 Article 3 of the Framework Decision sets out the grounds for mandatory non-execution of the European arrest warrant and all of these are incorporated in Part 3 of the Act of 2003. Article 4 of the Framework Decision sets out the grounds for optional non-execution of the European arrest warrant, some of which, but not all of which, the Oireachtas has opted to also include within Part 3...