Minister for Justice, Equality and Law Reform v John Paul Brennan

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 04 May 2007
• Neutral Citation: [2007] IESC 21
• Docket Number: [S.C. No. 21 of 2006
• Court: Supreme Court
• Date: 04 May 2007

MIN FOR JUSTICE v BRENNAN

Between

MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

APPLICANT / RESPONDENT

-v-

JOHN PAUL BRENNAN

RESPONDENT / APPELLANT

[2007] IESC 21

Murray C.J.

Macken J.

Finnegan J.

121/06

THE SUPREME COURT

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(b)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005

LARKIN v O'DEA 1995 2 IR 485 1994 11 3402

DPP v M 1994 3 IR 306 1994 2 ILRM 541 1994 9 2641

EUROPEAN ARREST WARRANT ACT 2003 S20(1)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 ART 5

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 ART 5(2)

EUROPEAN ARREST WARRANT ACT 2003 S37

MIN FOR JUSTICE v ALTARAVICIUS UNREP SUPREME 5.4.2006 2006 IESC 23

CRIMINAL PROCEEDINGS AGAINST MARIA PUPINO C-105/03 COURT (GRAND CHAMBER) 16.06.2005

CONSTITUTION

EUROPEAN ARREST WARRANT ACT 2003 S37(2)

1 JUDGMENT of the Court delivered on the 4th day of May, 2007by Murray C.J.

2 The respondent in this appeal, the Minister for Justice, Equality and Law Reform, was granted an Order by the High Court pursuant to s. 16(1) of the European Arrest Warrant Act, 2003 on foot of a European Arrest Warrant issued by a judicial authority of the United Kingdom, namely a District Justice (Magistrate's Court) sitting at Leeds Magistrate Court in that country.

3 There are two aspects to the European Arrest Warrant in question. The first aspect concerns the appellant's conviction and sentence in the United Kingdom on 6th March, 2002. On that occasion he was convicted of an offence of robbery and an offence of failing to appear in Court in breach of the terms of a bail bond. He was sentenced to 54 months imprisonment in respect of the offence of robbery and consecutively to six months imprisonment for the offence of breaching the terms of his bail bond. While serving the sentences he absconded from prison on 11th May, 2003. The European Arrest Warrant seeks his return to the United Kingdom to serve the balance of those sentences. The second aspect of the European Arrest Warrant concerns a request for his surrender to the United Kingdom so that the appellant may be prosecuted and tried for an offence of escaping from lawful custody.

4 The learned High Court Judge, being satisfied that the requirements of s. 16(1) of the European Arrest Warrant Act, 2003, as amended, had been fulfilled, made the appropriate Order for the return of the appellant to the United Kingdom in respect of all the matters covered by the Warrant in question.

The Appeal

5 The issue raised by the appellant in the appeal only concerns the matter covered by the second aspect of the European Arrest Warrant, namely the appellant's return to the United Kingdom to stand trial in respect of the offence of escaping from lawful custody. The basis of the appeal was summarised by the appellant in his written submissions as "an assertion by him that his constitutional rights were infringed by the Order of [the High Court] ... in the context of the Arrest Warrant issued against him disclosing that he faces the imposition of a mandatory minimum sentence upon him should he be convicted of the offence of escaping from lawful custody".

The Arguments

6 In his submissions counsel for the appellant referred to the terms of the European Arrest Warrant which, under the heading "Nature and Legal Classification of the Offence(s) and the Applicable Statutory Provision / Code", gave the following information:

"Escaping from lawful custody is a common law offence and triable before a Judge and jury. It is punishable by a term of imprisonment and a fine. The term is not prescribed and is at the discretion of the Judge. As it is a common law offence, the maximum term of imprisonment that a Judge can impose is life."

7 Counsel then referred to another part of the European Arrest Warrant, at a paragraph denoted as (h), which gave information concerning measures applicable to persons sentenced to life imprisonment. Counsel cited in particular the passage:

"The offender has to serve an appropriate minimum period (the tariff) that reflects the punitive element of the sentence ..."

8 He submitted that there was at least some ambiguity as to what this phrase in the Warrant actually means. He stated that he had applied to the learned trial Judge to exercise his powers pursuant to s. 20 of the Act of 2003 to seek clarification from the judicial authority of the requesting State. It was further submitted, on the basis of that passage, that it appeared from the Warrant that the appellant, on his return for trial to the United Kingdom, faced the imposition of some form of mandatory minimum period of imprisonment, as it was put, on conviction for the offence of escaping from lawful custody. It was submitted that this means that the appellant, in denial of his rights under the Constitution, would be sentenced to a mandatory minimum period which did not take into account the particular circumstances of the case, including the personal circumstances of the appellant, in order to ensure that a sentence of imprisonment was proportionate to those circumstances.

9 In support of his submissions counsel for the appellant relied, inter alia, on s. 37(1)(b) of the European Arrest Warrant Act, 2003, as amended by the Criminal Justice (Terrorist Offences) Act, 2005, which provides:

"A person shall not be surrendered under this Act if -

...

(b) his or her surrender would constitute a contravention of any provision of the Constitution ..."

10 This, it was submitted, expresses in statutory form principal of Irish law expressed by Finnegan P., as he then was, in Larkin -v- O'Dea [1995] 2 I.R. when he stated:

"Insofar as the Constitution is concerned, in matters of extradition the Court has always had regard to the constitutional rights of the person sought to be extradited."

11 Counsel also relied on a number of judicial dicta on sentencing policy in criminal cases including that of Denham J. in People (D.P.P.) -v- M. [1994] 3 I.R. 306 at 316 when she stated:

"... Sentences should be proportionate ... It is therefore the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of the case - not only in regard to the particular crime but in regard to the particular criminal ... In a similar vein there is a constitutional protection."

12 Accordingly, it was submitted, the proportionate nature of a sentence to be imposed is a constitutionally protected right in this country which the appellant, if returned to the United Kingdom, would be denied. The only evidence before the High Court with regard to the sentence to be imposed is that contained in the European Arrest Warrant and in the absence of any other evidence it was not open to the learned High Court Judge to conclude that the constitutional rights of the appellant would not be infringed. Alternatively, in the absence of any clarification from the issuing judicial authority there was no basis on which the learned trial Judge could have been satisfied that the appellant's constitutionally protected rights in this jurisdiction would not be encroached upon if he was returned to the United Kingdom.

Submissions of the Respondent

13 There are essentially three grounds upon which the respondent in the appeal argued that the Order of the High Court should be upheld.

14 Firstly, it was pointed out that the European Arrest Warrant stated that escape from lawful custody is punishable by a term of imprisonment and that "the term of imprisonment is not prescribed and is at the discretion of the Judge". On this basis, counsel submitted, there cannot be said to be any statutory or other minimum sentence applicable for the offence in question. It was further submitted that the purpose of para. (h) in the European Arrest Warrant, as relied upon by the appellant, is to specify which offences, if any, are punishable by a sentence of life imprisonment and to explain the extent of which such a sentence is reviewable or subject of the possibility of clemency. In referring at this point in the European Arrest Warrant to the fact that "the offender has to serve an appropriate minimum period (the tariff) that reflects the punitive element of the sentence" the judicial authority was providing information concerning the circumstances under which a person sentenced to life imprisonment may ultimately be released under license or parole. It was submitted that there was no minimum sentence for the offence in question only a maximum sentence of life imprisonment and that a "tariff" is relevant only where the sentence actually imposed is life imprisonment. Furthermore, it was submitted that the use of the word "appropriate" in relation to the minimum tariff indicates a tariff which is specified by the trial Judge in his discretion.

15 The second ground relied upon by the respondent is essentially a submission that it is not contrary to the provisions of the Constitution, or principles implicit in those provisions, for the Oireachtas to prescribe mandatory minimum sentences for specified offences. The wide legislative powers conferred on the Oireachtas include a power to select such sentences as are considered appropriate by the Oireachtas to the nature of the offence. There cannot be, it was submitted, any "a priori assumption that a fixed penalty or a mandatory minimum penalty is ipso facto unconstitutional. It is the Oireachtas that chooses the sentence and existing case-law demonstrates that there would be no interference with such a choice unless the Oireachtas was acting in clear disregard of the provisions of the Constitution". Accordingly, it cannot in any event be said that the order for the appellant's surrender...