Minister for Justice, Equality and Law Reform v Johnston

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 12 March 2008
• Neutral Citation: [2008] IESC 11
• Date: 12 March 2008
• Court: Supreme Court
• Docket Number: 105/07

[2008] IESC 11

THE SUPREME COURT

Kearns J.

Macken J.

Finnegan J.

105/07

Min for Justice v Johnston

IN THE MATTER OF THE EUROPEAN ARREST WARREST 2003

Between:

The Minister for Justice Equality and Law Reform

Applicant/Respondent

David Johnston

Respondent/Appellant

LCB v UNITED KINGDOM 1998 27 EHRR 212

MIN JUSTICE v STAPLETON UNREP SUPREME 26.7.2007 2007 IESC 30

MIN JUSTICE v GARDENER UNREP SUPREME 30.7.2007 2007 IESC 40

MIN FOR JUSTICE v R (S) UNREP HIGH COURT PEART 15.11.2005 2005/38/7893 2005 IEHC 377

CARNE v ASST GARDA COMMISSIONER O'TOOLE UNREP SUPREME 21.4.2005 2005/9/1885

EXTRADITION ACT S50(2)(bbb)

EVISTON v DPP 2002 3 IR 260

DALY v MIN FOR THE MARINE & AG UNREP SUPREME 4.10.2001 2001/5/1265 2001 IESC 77

CRIMINAL JUSTICE

Extradition

European arrest warrant - Delay in seeking surrender - Whether trial judge erred in law - Whether breach of constitutional rights to grant order sought - Whether danger to life of respondent if surrendered - Whether respondent would be adequately protected United Kingdom authorities - Whether respondent responsible for the delay - Whether clear and cogent evidence of fundamental defect in the system of justice of the requesting State - Whether legitimate expectation that would not be prosecuted arising from warrant issued in 2001 - Whether conversations and exchanges could be read as precluding the authorities from deciding to proceed at later date - Minister for Justice v SR [2007] IESC 54 (Unrep, SC, 15/11/07), Minister for Justice v Gardner [2007] IESC 40 (Unrep, SC, 30/7/2007), Minister for Justice v Stapleton [2007] IESC 30 (Unrep, SC, 26/7/2007), LCB v United Kingdom (1998) 27 EHRR 212, Daly v Minister for the Marine (Unrep, SC, 4/10/2001), Wiley v Revenue Commissioners (No 2) [1994] 2 IR 160, Canon v Minister for the Marine [1991] 1 IR 82 and Eviston v Director of Public Prosecutions [2002] 3 IR 260 applied - Appeal dismissed (2007/105 - SC - 12/3/2008) [2008] IESC 11

Minister for Justice v Johnston

Judgment delivered on the

Macken, J.

1 This is an appeal by the respondent/appellant against the judgment and order of the High Court (Peart, J.) made on the 27th March 2007 pursuant to which he ordered him to be surrendered to the United Kingdom on foot of a European Arrest Warrant dated the 25th July 2006, the learned trial judge having been satisfied that there were no grounds on which he should refuse to surrender the respondent/appellant.

2 The grounds of appeal, numbering ten in all, can readily be divided into two main groups, and these two have been addressed in detail in the written submissions filed on behalf of each party. The first group concerns the underlying domestic warrant issued in April 2001 in Scotland, and the second concerns an allegation of delay in seeking his surrender and in particular the medical (including psychiatric) condition of the respondent/appellant during that delay period. The legal bases upon which these grounds are put forward are more fully considered below.

3 It is appropriate to deal with the second ground first, that is to say, that of delay. This is based essentially on two arguments. The first, of a general nature, is that the respondent/appellant came to Ireland some years ago, established himself here and has set up a business and moved on with his life. It is further argued that he has suffered from a medical/psychiatric condition which has been exacerbated by the present proceedings and is allied to a fear on his part that he will, if he is returned to the United Kingdom, be attacked and tortured, as he was prior to coming to Ireland. In these circumstances it is claimed that it would be in breach of his constitutional rights arising from the very act of surrender, to grant the order sought.

4 Insofar as the question of delay is concerned the learned High Court judge found as follows:

"He (the respondent/appellant) goes on to say that it was at all times known that he was in Ireland. He believes that his surrender after such a length of time and in the light of his medical condition and his fears would be contrary to the principles of fundamental fairness and contrary to justice. He goes on then to say that he set up his home and business in Galway, that his life has moved on. I have considered the issue raised as to delay. It is a fact that the offences which have given rise to this application occurred in 2001, about 7 years ago … .

As to the point of general delay since the date of commission of these offences, the respondent has not set forth in his grounding affidavit any prejudice which he says exists as to his capacity to defend himself against the charges.

The medical ground really is the only aspect of delay which can be relied upon to any extent. I am satisfied from the medical evidence that his medical condition is not of sufficient gravity to merit this court in adopting the course that it took in the SR case, where much graver circumstances existed as to the risk to the life to that respondent. So I reject the point of objection raised in relation to delay both in its general plea and by reference to the medical condition."

5 The learned High Court judge had before him the applicant's affidavit which expressed considerable worry for his safety on the basis that he had been attacked in the past, "beaten and tortured" in Scotland and forced out of the country, and that he would have been killed if he had stayed. These events, assuming that they occurred and there is no reason to believe otherwise, are events which were carried out by former associates of the respondent/appellant. Although in the High Court he expressed the view that he could not be protected, that is to say, could not be protected by the Scottish police, there was no evidence adduced by the respondent/appellant that the appropriate prison authorities or the police forces in Scotland or elsewhere in the United Kingdom, if he was travelling through the United Kingdom to Scotland upon surrender, could not adequately and properly protect him. This court emphasises and accepts that the United Kingdom, as a signatory to the European Convention on Human Rights and Fundamental Freedoms, and otherwise in law, is obliged by all reasonable means to protect his safety, and the mere assertion that he could not be protected cannot be taken as evidence of that fact (see,L.C.B. v United Kingdom [1998] 27 E.H.R 212). There is no evidence that the learned trial judge misdirected himself in drawing the inferences which he did from the materials before him. In the circumstances the learned trial judge's determination on this ground of fear, forming part of the delay ground, was not in any way incorrect.

6 Secondly, in relation to the question of general delay, a further relevant factor exists. When the alleged offences, which were for the possession, and the possession for sale, of various types of drugs including diamorphine (heroin), cannabis, ecstasy and another drug, took place in 2000, the respondent/appellant was admitted to bail. He did not meet his bail terms and failed to appear on the 9th April 2001 at the High Court in Glasgow and a warrant for his arrest was granted. Upon being granted bail, he had, on his own admission, fled to Ireland to avoid the charges and the unwanted attention of the persons who were intent on doing him harm. While he asserts that it was known he was in Ireland, there is no evidence to support this assertion other than that in the year 2005 he was stopped in Holyhead by the United Kingdom police (investigating possible terrorist activities) and gave an address in Galway. It has long been established in the case law that delay which has been caused by the actions of a person invoking delay as a ground for resisting an order cannot, in ordinary circumstances, be a valid ground to sustain the claim. In the case of theMinister for Justice Equality and Law Reform v Stapleton, unreported, the Supreme Court 26th July 2007, Fennelly J. said the following:

"The authorities already cited support the rather obvious proposition that a person will not be heard to claim that delay in the prosecution of extradition proceedings is unfair or oppressive where he has himself been the author of the delay."

7 I am satisfied that at least from 2000 or 2001 until June 2005 when the respondent/appellant was stopped in Holyhead, as mentioned above, the period of delay in question cannot be invoked by him for the purposes of resisting his surrender to the United Kingdom authorities on grounds of the alleged delay in seeking an order in that regard.

8 Even if the learned High Court judge could be said to have failed to have particular regard for the period of delay between when the respondent/appellant was stopped in Holyhead in 2005 and the time when the European Arrest Warrant issued in July 2006, and that period could be viewed as excessive, which I do not accept, the respondent/appellant cannot succeed on this ground, having regard to the decision of this court in the case ofMinister for Justice Equality and Law Reform v Gardner, unreported, Supreme Court 30th July 2007, and in particular the following statement in the judgment of Finnegan J.:

"Firstly the respondent is the principal culprit in relation to the delay upon which he relies, he having failed to attend court for the purposes of criminal proceedings against him, he is disabled from relying on that delay. Secondly and more importantly, the issue of delay is one to be dealt with in the court of trial, unless the respondent can establish by clear and cogent evidence a clear and fundamental defect in the system of justice of the requesting State such that the refusal of the application for surrender is necessary to protect his constitutional rights. In this case the appellant has not sought...