Minister for Justice, Equality and Law Reform v Murphy

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 19 March 2010
• Neutral Citation: [2010] IESC 17
• Court: Supreme Court
• Docket Number: [S.C. No. 1 of 2008]
• Date: 19 March 2010

[2010] IESC 17

THE SUPREME COURT

Denham J.

Macken J.

Finnegan J.

[Appeal No: 01/2008]

Min for Justice v Murphy

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Michael Murphy

Respondent/Appellant

EUROPEAN ARREST WARRANT ACT 2003 S10(D)

EUROPEAN ARREST WARRANT ACT 2003 S16

MENTAL HEALTH ACT 1983 S138 (UK)

MENTAL HEALTH ACT 1983 S37 (UK)

MENTAL HEALTH ACT 1983 S41 (UK)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1.1

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.1

CRIMINAL PROCEEDINGS AGAINST PUPINO 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142 2005 ECR I-5285 2005 2 CMLR 63

MIN FOR JUSTICE v ALTARAVICIUS 2003 3 IR 148 2006/39/8296 2006 IESC 23

CRIMINAL LAW (INSANITY) ACT 2006 S5

MENTAL HEALTH ACT 1983 S37(8) (UK)

MENTAL HEALTH ACT 1983 S40 (UK)

R v BIRCH 1990 90 CR APP R 78 1989 11 CR APP R (S) 202

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 2

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 5

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 5.2

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

EUROPEAN CONVENTION ON EXTRADITION ART 25

EXTRADITION

European arrest warrant

Detention order - Nature of detention for which surrender can be ordered - Whether detention order made in criminal proceedings could provide foundation for European arrest warrant - Whether surrender of respondent should be ordered - Minister for Justice, Equality and Law Reform v Altaravicius [2006] 3 IR 148 followed - European Arrest Warrant Act 2003 (No. 45), s. 10 - Framework Council Decision of 13 June, 2002 on the European arrest warrant and the surrender procedures between Member States (2005/584/JHA), articles 1 and 2 - Respondent's appeal dismissed (1/2008 - SC - 19/3/2010) [2010] IESC 17

Minister for Justice v Murphy

Facts: The issue arose as to whether a hospital order with a restriction order attached in a European arrest warrant (EAW) was a "detention order" within the meaning of s. 10(d) European Arrest Warrant Act 2003. The EAW was grounded on a warrant of arrest relating to a convicted mental patient who had escaped from lawful custody. The EAW related to two offences, rape and assault occasioning actual bodily harm. The question arose as to the application of the principle of conforming interpretation and a decision of the Supreme Court of Finland.

Held by the Supreme Court per Denham J. (Macken, Finnegan JJ.), that the Court would define a detention order under s. 10(d) as any order involving deprivation of liberty which had been made by a criminal court in addition to or instead of a prison sentence. In this case the detention order was made by a criminal court after conviction. Thus s. 10(d) of the Act of 2003 applied to the detention order in the case and the order of the High Court would be affirmed.

Reporter: E.F.

1 Judgment delivered the 19th day of March, 2010 by Denham J.

2 Judgment delivered by Denham J. [nem diss]

3 1. At issue in this case is whether a hospital order with a restriction order attached in a European arrest warrant, is a "detention order" within the meaning of s.10(d) of the European Arrest Warrant Act, 2003.

4 2. This is an appeal by Michael Murphy, the respondent/appellant, referred to in this judgment as "the appellant", from the decision of the High Court (Peart J.) delivered on the 19 ^th day of December, 2007, and the order made for his surrender to the United Kingdom pursuant to s.16 of the European Arrest Warrant Act, 2003.

5 3. The appellant is sought by the United Kingdom on a European arrest warrant, referred to in this judgment as a "EAW". The EAW is grounded on a warrant of arrest dated the 22 ^nd March, 2007, issued by Bury Magistrates' Court in relation to a convicted mental patient who has escaped from lawful custody and is liable to be retaken in accordance with section 138 of the Mental Health Act, 1983.

6 4. The EAW relates to two offences, rape and assault occasioning actual bodily harm. The appellant is alleged to be unlawfully at large after conviction for the offences of rape and sexual assault occasioning actual bodily harm. The warrant was issued with a view to his arrest in the State and extradition to the United Kingdom "for the purpose of serving a sentence of imprisonment or another form of detention imposed in respect of the offences".

7 5. It is stated on the EAW that the appellant was convicted of the offences of rape and assault occasioning actual bodily harm on a named person on the 21 ^st July, 1993. He was convicted of the offences on the 20 ^th December, 1993. On the 1 ^st August, 1994, at the Central Criminal Court in London, he was sentenced to a hospital order with special restrictions under sections 37 and 41 of the Mental Health Act, 1983.

8 6. The essential issue in the High Court was whether, by reference to the intent and objectives of the Framework Decision, and the European Arrest Warrant Act, 2003, as amended, referred to in this judgment as "the Act of 2003", by which effect is given to the Framework Decision in this jurisdiction, the hospital order with restrictions attached, which is for an indefinite duration, subject to powers of review by the Mental Health Tribunal, is or is not a "detention order" within the meaning of s.10(d) of the Act of 2003.

9 7. In the High Court the learned trial judge held:-

"I am satisfied, and there is no room for a controversy in this respect at least, that the Hospital Order and restrictions is not regarded as a sentence of imprisonment under the law of the United Kingdom. That much is clear. Equally clear in my view is that it constitutes an order for the detention of the respondent, if one adopts a literal meaning of the word "detention". However, as Ms Donnelly has stated, it cannot be the case that every form of detention or deprivation of liberty comes within the meaning of a detention order under the Framework Decision and the Act. By way of a simple example, a person who has been made the subject of a detention order solely in a mental health context, and who escapes from that detention, could not be sought to be surrendered by means of a European arrest warrant. That would seem to be clear, and that only a detention imposed or capable of being imposed following a conviction for a criminal offence has the capacity to be a detention for the purpose of the Framework Decision and the Act."

10 8. The learned High Court judge considered s.10(d) of the Act of 2003 and Articles 1 and 2 of the Framework Decision. The learned High Court judge held that insofar as there may be a perceived ambiguity between the texts of Articles 1 and 2 of the Framework Decision he was assisted by referring to the French, German and Italian texts of the same articles, where there was use of the indefinite article in relation to a detention order in each case. The learned High Court judge held:-

"This confirms for me that the intention of the Framework Decision is that the phrase "detention order" is not to be confined to a detention order imposed as a form of sentence, such as where in this jurisdiction a young person can be ordered to be detained in St Patrick's Institution as a form of sentence of imprisonment. If one removes the adjective "custodial" from the "detention order" it is clear that its meaning is wider than a custodial detention order, and can embrace a detention order such as the hospital order with restrictions which was imposed upon the respondent following his conviction after a trial."

11 And he concluded:-

"It is therefore possible for this court to give an interpretation to the provisions of section 10 (d) of the Act which is in conformity with the objectives and intent of the Framework Decision, and which is not contra legem. It is that interpretation which must be given in those circumstances, rather than one which would exclude the respondent from being a person in respect of whom a European arrest warrant may be issued, thereby preventing his surrender."

Grounds of Appeal

12 9. Fourteen grounds of appeal were filed on behalf of the appellant. However, there is a single issue on this appeal and it is whether a hospital order with a restriction order attached is a "detention order" within the meaning of s.10(d) of the Act of 2003.

Law

13 10. The relevant wording of section 10(d) of the Act of 2003, as inserted by the Criminal Justice (Terrorist Offences) Act, 2005, is as follows:-

14 2 "lsquo;10.-Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person-

15 (a) ...

16 (b) ...

17 (c) ...

18 (d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, ...

19 that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.'"

20 [Emphasis added]

21 11. Article 1(1) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, referred to in this judgment as "the Framework Decision" states:-

"The European arrest warrant is a judicial decision issued by a Member State...