Minister for Justice, Equality and Law Reform v SMR

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 15 November 2005
• Neutral Citation: [2005] IEHC 377
• Docket Number: No: 13 Ext/2005
• Court: High Court
• Date: 15 November 2005

[2005] IEHC 377

THE HIGH COURT

No: 13 Ext/2005

MIN FOR JUSTICE v R (S)

Between:

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant

And

S R

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

SEXUAL OFFENCES ACT 1956 S14(1)

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

EXTRADITION ACT 1965 S50(2)(bbb)

EXTRADITION ACT 1965 S47

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002

(EUROPEAN ARREST WARRANT ACT 2003) ART 12

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN ARREST WARRANT ACT 2003 S40

EUROPEAN ARREST WARRANT ACT 2003 S39(1)

CONSTITUTION ART 13.6

EUROPEAN ARREST WARRANT ACT 2003 S39(2)

EUROPEAN ARREST WARRANT ACT 2003 S39(3)

EUROPEAN ARREST WARRANT ACT 2003 S40(b)

MIN JUSTICE v MCARDLE UNREP FINNEGAN 27.5.2005

EXTRADITION (AMDT) ACT 1987 S2(3)(6)

FINUCANE v MCMAHON 1990 1 IR 165

EXTRADITION ACT 1965 S50(2)

MCMAHON v LEAHY 1984 IR 525

CONSTITUTION ART 40.1

BOLGER v HAUGHTON & ORS UNREP PEART 28.10.2005

CONCISE OXFORD DICTIONARY "INVIDIOUS"CONCISE OXFORD DICTIONARY "OPPRESSIVE"

CARNE v O'TOOLE (ASSISTANT GARDA COMMISSIONER) UNREP SUPREME 21.4.2005

CRIMINAL LAW

Extradition

European arrest warrant - Delay - Reasons for delay - Right to expeditious hearing - Breach of constitutional rights - Whether surrender unjust or oppressive due to delay - Ill health of respondent - Prejudice due to ill-health - Right to life and bodily integrity - Right to fair procedure - Extradition Act 1965 (No 17), s 50(2)(bbb) - European Arrest Warrant Act 2003 (No 45), ss 16(1), 37(1), 39(3), 40 and sch, art.12 - Surrender refused (2005/13EXT - Peart - 15/11/2005) [2005] IEHC 377

MIN FOR JUSTICE v R (S)

Judgment of

Mr Justice Michael Peart

1 The respondent was born in Ireland in 1939 and is now therefore aged 66 years. His surrender to the United Kingdom is sought pursuant to a European Arrest Warrant issued on the 17th February 2005, and endorsed by the High Court here on the 12th April 2005. On foot of same he was duly arrested by a member of An Garda Siochana on the 26th April 2005 and brought before the High Court on that date as required by the s. 13 (5) of the European Arrest Warrant Act,2003, as amended. The offences alleged against him, and in respect of which it is intended that he should face trial in the United Kingdom, are of sexual assault on his granddaughter, a young girl, aged about nine years of age at the time of the alleged offences between the 30th June 2000 and the 1st September 2001. The complaint made by his grand-daughter was that on three occasions between these dates the respondent had committed acts of indecent assault upon her in England where the respondent then lived. This complaint was made to her mother (i.e. the respondent's daughter) in September 2001 after the family had returned to England following a holiday in Tralee where the respondent was then living.

2 It appears that it was some months before the matter was brought to the attention of the social services in England in January 2002. It would appear also that on that occasion, while the matter was reported to the Social Services for the area where the family live, the complainant's father informed social services that they did not want the matter to be brought to the attention of the police at that time. That appears to have been on the basis that the respondent would live in Tralee, and that he would not thereafter present a danger to the complainant. But it would appear that fears returned in or about July 2002 when it became known that the respondent was travelling back and forth to England from Ireland. Contact was made with the police, and the complainant and two of her siblings made video statements to the police, the complainant's being made in August 2002, and her siblings in October 2002.

3 In October 2002 a decision was made by the Crown prosecution service ("CPS") to seek the extradition of the respondent even though it was apparently known that he travelled to England on occasions both in relation to financial matters and for health reasons. In relation to the latter, it was known that he attended at Harefield Hospital, Middlesex where he was attending as an out-patient for what has been described in an affidavit of Ms. Riley of the CPS as "a heart condition".

4 On the14th January 2003, a warrant was obtained from Hendon Magistrate's Court for the arrest of the respondent. A copy of this warrant has been produced to this Court arising out of the cross-examination of Ms. Riley. The contents of this warrant which I shall refer to hereafter as "the domestic warrant" has been the subject of some submissions by Aileen Donnelly SC on behalf of the respondent, but I shall refer to that aspect again in due course. For the moment, it suffices to say that in this warrant the "alleged offence" is set forth as follows:

"Between 1st May 2001 and 1st September 2001 at [address] did indecently assault a female, namely [complainant named and date of birth given] contrary to section 14(1) Sexual Offences Act 1956."

5 The warrant goes on to direct the constables of the Metropolitan Police Force to arrest the respondent and bring him before the Magistrates Court immediately. Ms. Riley has sworn that thereafter his name was circulated on the police national computer. She has also stated that papers were then sent to the CPS headquarters so that papers could be prepared for the purpose of preparing a European Arrest warrant. Factually this European Arrest Warrant was not obtained from Bow Street Magistrates Court until the17th February 2005û a period of some thirteen months after the date of issue of the domestic warrant. I shall return to that period of delay in due course, but it suffices to say that it appears from the evidence of Ms. Riley that a decision was taken by the CPS not to submit any extradition requests to this State until such time as the difficulties which the UK authorities had with the provision of certain undertakings required under the 2003 Act were resolved. I shall return to that also. According to her evidence, this decision by the CPS not to seek extraditions from this State during this time resulted in about 20 cases being held up until the passing of the 2005 Act which created certain presumptions, thereby removing the need for such undertakings to be provided.

6 As I have already stated this warrant was endorsed by this Court for execution on the 12th April 2005, and the respondent was arrested on the 18th April 2005, and brought before the High Court, and was thereafter remanded on bail pending the hearing of this application under s. 16 of the Act.

7 When moving this application, Shane Murphy SC for the applicant submitted that the matters upon which this Court must be satisfied in applications of this kind are met in the present case. The first requirement is that this Court must be satisfied that the person before the court is the person named in the European Arrest warrant. I am so satisfied, and in fact no issue has been raised in that regard. Secondly, I am satisfied that the warrant was duly endorsed by the High Court for execution. A point of objection is raised in that regard in as much as the endorsement on the warrant is signed by the High Court Registrar and not the High Court itself,. Ms. Donnelly in making that objection relies on the same arguments put forward in Minister for Justice, Equality and Law Reform v. Hamilton, unreported, 23rd August 2005, and adopts them for the purpose of this case. For the same reasons as I did so in that case, I reject that argument in this case also. Thirdly, since this is not a case of conviction/sentence in absentia, the provisions of s. 45 of the Act are not applicable. Fourthly, he submits that there is nothing shown in this case which ought to mandate a refusal of the respondent's surrender by virtue of sections 21A, 22, 23, or 24 of the Act. I agree. Finally, he submits that the surrender of the respondent is not precluded by Part III of the Act, or by the Framework Decision. It is appropriate to consider the respondent's submissions on the points of objection which have been raised, before reaching a conclusion on this final point.

8 Apart from an additional point of objection raised subsequent to the cross-examination of Ms. Riley, in relation to the domestic warrant to which I have already referred, and to which I will return later, the objection made is really one which in other circumstances would have been made under s. 50(2)(bbb) of the Extradition Act,1965, as amended. Ms. Donnelly submits in that regard that because of delay on the part of the prosecution parties in the bringing of this application from the time the complaint was first made by the complainant, and the serious ill-health of the respondent which was extant at that time and is still present to an even greater degree, the respondent's constitutional rights would not be respected and vindicated by his surrender to the UK authorities for the purpose of facing a trial on the charges brought against him, and that such a surrender would breach his constitutional right to bodily integrity and, potentially his right to life.

9 The delay is not a delay to which the respondent has contributed in any way. I am satisfied in that regard.

10 As I have stated, the complaint was first made by the complainant to the Social Services in or around August 2001, but at that time the parents of the girl decided that they did not wish to involve the police, since the respondent was by then in Ireland. In his own affidavit he states that his wife to whom he had been married for forty years died from cancer in July...