Minister for Justice, Equality and Law Reform v Ward

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 04 March 2008
• Neutral Citation: [2008] IEHC 53
• Docket Number: Record Number: No. 106 Ext/2007
• Court: High Court
• Date: 04 March 2008

Min for Justice v Ward

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

John Ward

Respondent

[2008] IEHC 53

Record Number: No. 106 Ext/2007

THE HIGH COURT

CRIMINAL LAW

Extradition

European arrest warrant - Admissibility of affidavit by police constable in United Kingdom - Information contained in affidavit rather than warrant - Correspondence -Perverting course of justice - Whether not practicable to include information in warrant - Whether court entitled to seek further information from requesting judicial authority - Whether respondent would have been guilty of offence in this jurisdiction - Whether alleged offence within ambit of common law offence of perverting course of justice - Whether positive act of concealment - Whether respondent had knowledge of defects in vehicle - Whether vehicle danger to public - European Arrest Warrant Act 2003 (No 45) - Surrender of respondent ordered (2007/106EXT - Peart J - 4/3/2008) [2008] IEHC 53

Minister for Justice v Ward

Facts: The applicant sought to surrender the respondent to the UK for offences relating to a road traffic incident. The respondent objected to his surrender on the basis that no correspondence was made out as to the offences in the warrant and that correspondence could only have been made out by reference to the warrant.

Held by Peart J. that although the offence was a summary offence, correspondence had been made out. The Court was required to make the order for surrender as sought to the issuing State.

Reporter: E.F.

EUROPEAN ARREST WARRANT ACT 2003 S13

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

EUROPEAN ARREST WARRANT ACT 2003 S11

EUROPEAN ARREST WARRANT ACT 2003 S2A

EUROPEAN ARREST WARRANT ACT 2003 S38

EUROPEAN ARREST WARRANT ACT 2003 S20

EUROPEAN ARREST WARRANT ACT 2003 S5

ARCHBOLD CRIMINAL PLEADING, EVIDENCE & PRACTICE 2000 PARA 28.1

ROAD TRAFFIC ACT 1961 S53

CRIMINAL LAW ACT 1997 S7(1)

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1968 S51

ROAD TRAFFIC ACT 1961 S53(2)

ROAD TRAFFIC ACT 1961 S54(2)

CONSTITUTION ART 29.4.8

Judgment of

Mr Justice Michael Peart

1 The applicant seeks an order for the surrender of the respondent to the United Kingdom pursuant to a European arrest warrant which issued from a judicial authority there on the 18^th March 2007. That warrant was endorsed for execution here by the High Court on the 20^th June 2007, and the respondent was duly arrested on foot of same on the 3^rd October 2007, and, as required by the provisions of s. 13 of the European Arrest Warrant Act, 2003, as amended ("the Act"), was brought before the High Court immediately thereafter, and was remanded form time to time pending the hearing of this application.

2 No issue is raised by the respondent as to his identity, and the Court is in any event satisfied from the affidavit evidence of Sgt. James Kirwan, the arresting officer, that the person arrested by him and brought before the Court is the person in respect of whom this warrant has been issued.

3 The surrender of the respondent is sought so that he can be prosecuted in the issuing state for two offences set forth in the warrant as (1) perverting the course of justice, and (2) causing death by dangerous driving.

4 These offences are said to arise following a road traffic accident on the 10^th September 2006 on Ashtown New road, Clayton, Manchester, England as a result of which one person was injured and another was killed. The facts set forth in the warrant in relation to this incident state:

"On 21 August 2006 John Ward and Paul Tyler (co-accused) arrived at the home address of Ashley Voice in England where Mr ward purchased a Ford Iveco recovery truck registration number A688KCC for 500 cash from Mr Voice. On the instruction of Mr Ward, Mr Voice completed the logbook in the name of John Ford. Mr Ward left Mr Voice's home in the recovery truck while Mr Tyler left in a red transit van.

At 21.55 hours on Sunday 10 September 2006, Mr Ward was driving a red transit van registration number YC04 VUA on Ashtown New Road, Clayton, Manchester, England. He was stationary at a pedestrian crossing observing a red light. Two pedestrians, Ms. Jane Hughes and Mr Jim Pollard attempted to use the crossing when the recovery truck registration A688KCC, being driven by Mr Tyler, clipped the rear of the red transit van, crossed over the pedestrian markings and collided with Ms. Hughes and Mr Pollard.

Mr Pollard was catapulted into the centre of the carriageway. Ms. Hughes took the full force of the impact and was knocked to the ground. She remained underneath the recovery truck. The truck further collided with a parked vehicle before coming to a stop. Mr Tyler alighted the truck and fled the scene on foot. As a result of the collision, Ms. Hughes then 57 years old, suffered head injuries that proved fatal at thescene. Mr Pollard suffered minor injuries. There were 5 vehicles involved in the collision.

Mr Ward provided a full statement to the police constable at the scene. Mr Ward did not mention at that time that he was the owner of the recovery truck or that he could identify the driver.

The recovery truck underwent a full VOSA examination and was found to have numerous defects with the steering and braking systems. It was also found to have defective tyres."

5 The charge of perverting the course of justice arises according to this statement because of the failure of the respondent to state that he was the owner of the recovery truck and because he failed to tell the police at the scene that he could identify the driver of that truck.

6 The charge of causing death by dangerous driving arises on the basis that he caused Mr Tyler to drive a vehicle dangerously since he knew that the said vehicle had defective steering and braking systems.

7 The respondent has objected to his surrender, inter alia, on the basis that there is no correspondence made out in relation to either of these offences by reference to the facts disclosed in the warrant. I will come to those submissions in due course. The applicant has submitted an affidavit to the Court sworn by Police Constable Owens who was the officer who spoke to the respondent at the scene and took a statement from him. That affidavit provides some additional information which is not contained in the warrant itself.

8 Dr Michael Forde SC on behalf of the respondent has made a submission that this Court should not have regard to the contents of that affidavit on the basis that the Court must judge the question of correspondence only by reference to the facts set forth in the warrant, and in any event that the affidavit itself is inadmissible on this application since it is not apparent from the affidavit that it has been provided to the applicant by the issuing judicial authority, and has simply been provided by a police constable in the Greater Manchester Area of his own accord. I will address that submission also in due course.

9 Subject to addressing these submissions and the objections put forward by the respondent; I am satisfied that the requirements of the Act and the Framework Decision have been complied with, and that there is no reason under sections 21A, 22, 23 or 24 of the Act to refuse to surrender the respondent, and that his surrender is not prohibited by any provision of Part 3 of the Act, or the Framework Decision.

10 Dr Forde has submitted that the Court should not have any regard to the contents of this affidavit for the purpose of establishing correspondence, because there is no evidence that it has been provided by the judicial authority. He submits that by virtue of s. 5 of the Act, the constituents of the offence must be gleaned only from what is contained in the warrant in order to examine whether if those facts were proved in this jurisdiction an offence would be committed here. He refers also to s. 11 of the Act in support of his submission that the affidavit is inadmissible. He submits that it is clear from this section that all necessary information must be contained in the warrant itself, and that the section provides that only where "it is not practicable" for all the information to be contained in the warrant itself that it can be provided in a separate document. In that regard, section 2A (as inserted) provides:

"(2A)- If it is not practicable for any of the information to which subsection (1A) applies to be specified in the European arrest warrant it may be specified in a separate document."

11 He submits that not only was in practicable for all the information, including that contained in the affidavit of PC Owens to be included in the warrant, but also that in any event there is nothing either on or in that affidavit to suggest that it was furnished by the judicial authority that issued the warrant. Even if the affidavit is found to be admissible on this application, he submits that it should be disregarded since it seeks to establish a prima facie case against the respondent in respect of the offences, and that to do so is contrary to the spirit and intention of the Framework Decision, namely to simplify the system of surrender and remove complexities found to have been present under previous arrangements.

12 In response, Remy Farrell BL for the applicant has submitted first of all that this objection regarding the admissibility of the affidavit has not been raised in the Points of Objection filed in this case even though the affidavit in question was furnished to the respondent's solicitors prior to the delivery of those Points of Objection, and that to raise the point for the first time on the hearing of this application ought not to be permitted. Nevertheless, he submits in any...