Minister for Justice and Equality v Liam Daly
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kerida Naidoo |
| Judgment Date | 22 May 2023 |
| Neutral Citation | [2023] IEHC 733 |
| Court | High Court |
| Docket Number | [2023 No. 2 EXT.] |
[2023] IEHC 733
[2023 No. 2 EXT.]
THE HIGH COURT
Judgment of Mr. Justice Kerida Naidoo delivered on the 22nd day of May, 2023 .
By this application, the applicant seeks an order for the surrender of the respondent to the Federal Republic of Germany pursuant to a European Arrest Warrant dated 12th January 2020 (“the EAW”). The EAW was issued by a Local Court Judge, as the Issuing Judicial Authority.
The EAW seeks the surrender of the respondent in order to prosecute him in respect of an attempted aggravated robbery offence and has certified the relevant provisions of the law of the requesting State.
The respondent was arrested on 6th January 2023, on foot of a Schengen Information System II alert, and brought before the High Court on the same date. The EAW was produced to the High Court on 11th January 2023.
I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.
I am satisfied that none of the matters referred to in section 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.
I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The offence in respect of which surrender of the respondent is sought carries a maximum penalty in excess of twelve months' imprisonment.
The respondent initially raised an objection to surrender under section 11 of the Act of 2003 on the basis that the warrant makes no reference as to when or if any statute of limitations applies and therefore lacks the clarity required under section 11 of the Act. In light of additional information from the IJA that point was not pursued at the hearing.
I am satisfied that no issue arises under section 11 of the Act of 2003.
The Issuing Judicial Authority has certified that the offences referred to in the EAW are offences to which Article 2.2 of the Framework Decision applies, that same are punishable by a maximum penalty of at least three years' imprisonment and has indicated the appropriate box for “organised or armed robbery”. There is no manifest error or ambiguity in respect of the aforesaid certification such as would justify this court in looking beyond same.
I am, in any event, satisfied that correspondence can be established between the conduct described in the EAW and an offence under the law of the State, namely: attempted robbery contrary to common law.
As surrender is sought to prosecute the respondent, no issue arises under section 45 of the Act of 2003.
The respondent objects to surrender on the basis of a composite argument that encompasses abuse of process, delay and section 37 of the Act of 2003. His argument is that surrender would be in breach of his rights under Article 6(d) of the European Convention on Human Rights, including his family rights under Article 8. The respondent also relies on the submission that the lapse of time between the commission of the alleged offence and the issuing of the warrant in question raises legitimate concerns about his fair trial rights.
The date of the alleged offence is the 18th February 1994. The allegation is that the respondent entering a snack bar in Berlin armed with a broken wooden chair leg and tried to strike the person working behind the counter with the intention of stealing money. The attempt failed because the man he tried to hit was able to fend off the attack and take the improvised weapon from the respondent. The respondent was 22 years old at the time.
The respondent was brought before an investigating judge in the requesting State on 19th February 1994 and detained, during which he was questioned. In the affidavit sworn by him to ground his objection to surrender the respondent says he was detained for a period of three days.
Describing the evidence the IJA says: “After initially denying it, the accused admitted during his presentation to the investigating judge that he had a mask on his head and a chair leg in his hand when he entered the snack bar. He had only wanted to scare the witness and had not said anything. He had drunk several beers beforehand and had wanted money from the witness. The urgent suspicion therefore results from the accused's confession. The witness [name redacted] is a direct witness to the crime. The former fiancée of the accused was only able to give information about the fringe event. Both witness [name redacted] and witness [the respondent's fiancée] continue to live in Berlin.”
Any prosecution following surrender will therefore substantially rely on the respondent's inculpatory statements and the evidence of the alleged victim.
According to the IJA, having been detained, the respondent “was initially released because he had named [the respondent's fiancée] as his agent for service.” The respondent therefore knew that service of documents about the case would be on his fiancée and that service of any documents relevant to that prosecution on her would be treated as service on him. He was not charged with any offence prior to being released but in the circumstances, given the nature of the offending and the fact he had been arrested and detained for three days, during which time he made material admissions in relation to the offence, I am satisfied that the respondent could not reasonable have believed the authorities were not going to pursue a prosecution against him.
It is not contested that the preconditions to surrender pursuant to section 16 of the Act of 2003 have been met by the contents of the EAW and the additional information provided by letter dated 21st February 2023. In accordance with section 10 of the Act of 2003 the court is therefore obliged to order the respondent's surrender unless he can establish that the combination of factors he relies upon amounts to an abuse of process.
The respondent says that having been released following his detention there is nothing before the court to suggest that he was obliged to reside at a particular address or to remain in the requesting State. That is correct. He also says he lived openly in Germany until 1995 and that on one occasion he was stopped by the German police for non-payment of a train ticket and detained. He says he produced his passport before being released and had his passport returned to him.
What he does not address in his affidavit is that he had only been released in relation to the offences to which the EAW relates because he provided his fiancée as a means by which service could be affected upon him. Neither does he say what, if any, enquiries he with his fiancée about whether she had received service on his behalf of any documentation about the case.
The IJA says an attempt was made by the relevant authorities to serve an indictment on the respondent on 10th March 1994, which was unsuccessful because the respondent had left his residence address. A domestic arrest warrant was issued on 22nd August 1994. On 11th August 1995 the proceedings against the respondent were provisionally discontinued due to his absence. On 28th March 1996 an international search was initiated.
The respondent was subsequently arrested in the UK on 20th February 2003 on foot of an application by the German authorities for extradition in respect of the offence to which the warrant before this Court relates, which at that stage included an assault charge. That extradition request was governed by the UK Extradition Act 1989.
The case was ultimately heard in the UK by their Court of Appeal. The hearing took the form of an application for Habeas Corpus brought by the respondent. In a judgment dated 25th June 2003, the court found in the respondent's favour, which effectively amounted to a refusal of extradition. Although obviously not bound by it, it is instructive to consider the reasoning of the English court because the factors it relied on echo some of the arguments being advanced before me by the respondent. A number of those factors also featured in several of the abuse of process cases upon which the respondent relies that have been decided under the Act of 2003, but the emphasis is, in important respects, different.
The reasoning of the English court centred on what was then a period of nine years since the alleged offending. Ultimately, the English court concluded: “Having regard to the chronology which I have set out, it would manifestly be unfair to return this applicant to Germany, in face of the inability, as it seems to me, to have a fair trial, and the impression on the applicant's mind resulting from delay.” The court was aware of the circumstances of the alleged offending and that, to quote the judgment: “The applicant made certain admissions to those investigating this matter, which included an admission that he was present at the snack bar, but that he was drunk at the time.” The court also emphasised the fact that when his passport was examined by the police in Germany in 1995, he was not informed that he was required to answer the charges and the fact that the respondent continued to live in Germany for a year or so after the events of February 1994. The court accepted the submission made on behalf of the respondent that he “has been lulled into a sense of believing that there would be no proceedings against him, having regard to the events which occurred in Germany as long ago as 1995, and the events which have failed to occur, so far as he is concerned, since then.”
The UK court accepted the argument that to return the respondent would have been unjust or...
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