Minister for Justice Equality and Law Reform v Draisey

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 24 November 2006
• Neutral Citation: [2006] IEHC 375
• Court: High Court
• Date: 24 November 2006

[2006] IEHC 375

THE HIGH COURT

Record Number: No. 3 Ext./2006

MIN FOR JUSTICE v DRAISEY

Between:

Minister for Justice, Equality and Law Reform

Applicant

and

Kieran Thomas Draisey

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

CONSTITUTION ART 38.1

CONSTITUTION ART 40.1

EUROPEAN ARREST WARRANT ACT 2003 S38(1)

RSC O 98 r5(2)

EUROPEAN ARREST WARRANT ACT 2003 S50(2)(bbb)

EUROPEAN ARREST WARRANT ACT 2003 S50

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(b)

Abstract:

Criminal law - Extradition - European arrest warrant - Delay - Prosecutorial delay - Whether delay such that surrender should not be ordered - Whether delay alone sufficient to justify refusal of surrender - Whether other exceptional circumstances such as prejudice to respondent to justify refusal of surrender - Whether order for surrender should be made - EU Frameork Decision of 13th June, 2002 (2002/584/JHA) - European Arrest Warrant Act 2003 (No 45), section 5

Facts: the respondent was charged with various alleged to have been committed between 1995 and 1998 by the English authorities. A European arrest warrant was issued in December, 2006. The respondent contended that by reason of lapse of time he should not be extradited and that it would be unjust, oppressive to deliver him up by reason of prosecutorial delay. The English authorities contended that the delay was die to the fact that they were unaware of the respondent’s whereabouts. The respondent contended that no serious effort was made to locate him up to 2006 by the prosecution authorities.

Held by Mr Justice Peart in making an order pursuant to s. 16(1) of the European Arrest Warrant Act 2003 for the surrender of the respondent that despite the fact that the delay had not been fully explained, the mere existence of unexplained delay was not of itself sufficient to justify refusal of surrender and there were no other exceptional circumstances, such as the assertion of a particular prejudice by the respondent.

Reporter: P.C.

1 Mr Justice Michael Peart delivered on the 24th day of November 2006 :

2 The European arrest warrant issued in this case on the 7th December 2006 from a judicial authority in the United Kingdom, and was duly endorsed for execution by the High Court on the 17th January 2006, and was executed by the arrest of the respondent on the 8th February 2006. He was duly brought before the High Court following his arrest and was remanded from time to time until the hearing of this application under s. 16 of the European Arrest Warrant Act, 2003, as amended.

3 The warrant relates to six offences in total covering kidnapping, false imprisonment, assault occasioning actual bodily harm, and making a threat to kill. The first two offences, kidnapping and false imprisonment are offences found in Article 2.2 of the Framework Decision, and as such are offences in which pursuant to that article, double criminality/correspondence does not have to be verified. The remaining offences of assault causing actual bodily harm and making a threat to kill are submitted by the applicant to correspond respectively to offences here of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997, and an offence contrary to s. 5 of the same Act. I am satisfied that correspondence is made out in respect of these offences. All these offences satisfy the minimum gravity requirement.

4 I am also satisfied that the European arrest warrant complies with the requirements of the Act.

5 I am also satisfied that the person before the Court is the person in respect of whom the European arrest warrant has been issued.

6 I am satisfied that the Court is not required to refuse to order surrender by anything within the provisions of sections 21A, 22, 23, or 24 of the Act, and subject to considering the submissions as to delay which have been put forward by Paul Coffey SC on the respondent's behalf, I am satisfied that the surrender of the respondent is not prohibited by Part III of the Act.

7 This is another case like a number which have come before the Court in recent times where prior to the hearing under s. 16 Points of Objection have been filed raising a number of points which are intended to be argued, but where at the hearing all but one are in effect dropped by not being argued. The first issue not addressed in argument was that "the respondent should not be extradited as the dates of the alleged offences are too wide to constitute any specific criminal offence". There was never any room for such an argument in this application under s. 16, whatever might be the scope for such an argument prior to the commencement of the trial.

8 A second point raised within the first point is that there was "undue delay in relation to the execution of the warrant". That point was not pursued and one might wonder how it could have been seriously contended when the warrant is dated 7th December 2005, and was executed on the 8th February 2006 following the endorsement of same by the High Court on the 17th January 2006.

9 The third point not pursued was that "the surrender of the respondent herein would constitute a contravention of the Constitution and in particular articles 38.1 and article 40.1 thereof". Article 38.1 provides that "no person shall be tried on any criminal charge save in due course of law". No facts were asserted which could ground such an objection. It is difficult to see how such an issue could have relevance to an application for surrender under the Act, save in some exceptional circumstance which would have to be firmly grounded on evidence and not mere assertion or speculation. In this case there was never even that suggestion. Article 40.1 provides that "All persons shall, as human persons, be held equal before the law." Again no facts are asserted as to the manner in which that inequality exists in this case. I am at a loss to know what it could ever have meant at any stage in the context of this application. The final issue raised was simply that "the applicant is required to prove the relevant corresponding offences". That is something which does not have to be raised before the Court is required to deal with it. The Court must be satisfied that there is correspondence in respect of any offences which are not set forth in Article 2.2 of the Framework Decision, given the provisions of s. 38(1) of the Act. I appreciate that before the applicant has indicated what offences are said to so correspond, it is difficult to set forth with precision what issue might be raised regarding correspondence, but it is fair to say that in the present case there could have been little mystery as to what offences here would be said to correspond to the offence of assault causing grievous bodily harm, and threat to kill. In those circumstances, such an issue is clearly...