Minister for Justice, Equality and Law Reform v C. McG

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date30 January 2007
Neutral Citation[2007] IEHC 47
Docket NumberRecord Number: No. 55 Ext./2006
CourtHigh Court
Date30 January 2007

[2007] IEHC 47

THE HIGH COURT

Record Number: No. 55 Ext./2006
MIN FOR JUSTICE v MC G (C)

Between:

The Minister for Justice, Equality and Law Reform
Applicant

And

C. McG.
Respondent
Abstract:

Criminal law - Extradition - European Arrest Warrant - Identity - Delay - Abuse of process - Whether the surrender of the respondent ought to be refused on the grounds of lack of correspondence, delay and/or an abuse of process.

The surrender of the respondent was sought on foot of a European Arrest Warrant (EAW) in order for him to face trial in London in respect of offences of rape, indecent assault and gross indecency allegedly committed between 1995 and 1999. The surrender of the respondent on foot of an earlier EAW was previously refused by the court on the basis that the court was not satisfied that the person before the court was the person in respect of whom the EAW had issued. The respondent submitted that there was no corresponding offence in relation to the offence of gross indecency. The respondent also submitted that the applicant was guilty of an abuse of process by seeking the surrender of the respondent a second time having failed the on the first occasion and furthermore that there was such delay since the date of the alleged commission of the offences that the respondent’s constitutional and convention rights to a fair trial and trial within a reasonable time had been breached.

Held by Peart J. in ordering the surrender of the respondent: That the difficulty regarding the identity of the respondent which arose in the previous case did not arise in this case. In the circumstances of this case, the court was satisfied that the person before the court was the person in respect of whom the EAW issued. That the alleged acts set forth in the warrant as amounting to gross indecency would if committed in this state give rise to the offence of sexual assault. There was no abuse of process in this case nor was there any breach of the respondents constitutional and convention rights.

Reporter: L.O’S.

Judgment of
Mr Justice Michael Peart
1

The surrender of the respondent is sought on foot of a European Arrest Warrant dated the 17th May 2006 so that he can face trial in London in respect of offences of rape, indecent assault and gross indecency alleged to have been committed on dates between 1st September 1995 and 20th February 1999. That warrant was endorsed for execution by order of this Court on the 16th June 2006, and the respondent was duly arrested on foot of same on the 5th July 2006. He was brought before the Court on the 6th July 2006, and thereafter remanded on bail pending the hearing of the present application for his surrender.

Identity of the respondent:
2

I should add at the outset that a previous European arrest warrant issued on the 12th October 2004 in which the surrender of the same person now before the Court was sought, and on foot of which he was arrested on the 18th October 2004. That application was refused by Ms. Justice Macken for the reasons set forth in her judgment inMinister for Justice, Equality and Law Reform v. McGrath [2006] 1 IR. 321. On that application the Court was not satisfied, as it is required to be, that the person before the Court was that in respect of whom that European arrest warrant had been issued. The doubt as to the identity of the person referred to in that warrant arose from a particular photograph appended to that warrant, and which contained thereon a date of birth for the person shown therein which did not coincide with the date of birth stated in the warrant itself for the person whose surrender was sought.

3

On the present application, the identity of the respondent before the Court is not sought to be established with the assistance of any photograph, but rather by other evidence. Therefore the source of the doubt established on the previous application is absent from the present application. But since it is not actually conceded on behalf of the person before the Court that he is the person in respect of whom the warrant has been issued, I should set out the basis on which I am satisfied as to that matter.

4

The respondent has sworn an affidavit in which he states that he is not "the proper respondent being sought by the Applicant in the warrant, and as deposed in the aforesaid affidavits of Richard Glenister and Matthew Longman". He also states in the same affidavit that he has "a reasonable apprehension that the said warrant of Arrest does not pertain to this Deponent" by reason firstly of the fact that on the previous application for his surrender on foot of the same domestic warrant the Court was not satisfied in this regard; and secondly for some reason not clear, on account of what he describes as "excessive, inordinate, unconscionable and inexcusable delay". I am not clear as to how delay is thought to speak to the issue of whether or not he is the person referred to in the European arrest warrant.

5

The arresting officer, Sgt. Martin O'Neill has sworn an affidavit in which he states that he arrested the respondent in Bridgend, Co. Donegal on the 5th July 2006. He asked him whether he was C. McG. to which the respondent replied "Yes". He then asked him was his date of birth the 19th February 1953 in Donegal, to which the respondent replied "Yes". That is the date of birth given in the European arrest warrant for the man referred to therein, He asked him further if he lived at the address shown in the warrant, to which he replied "Yes". He asked him further if he had previously lived at a particular address in Basingstoke, England (being...

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2 cases
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