Minister for Justice Equality & Law Reform v Hamilton
|Mr Justice Michael Peart
|23 August 2005
| IEHC 292
|[2005 No. 28 Ext.]
|23 August 2005
 IEHC 292
THE HIGH COURT
Criminal law - European Arrest Warrant - Endorsement - European Arrest Warrant Act, 2003 - Whether the warrant complied with the prescribed form and was properly endorsed for execution.
Facts: The applicant sought an order for the surrender of the respondent, who was arrested on foot of a European Arrest Warrant to the authorities in Scotland where it was intended to charge him with the offence of murder. The respondent opposed that application on the basis that the description of the circumstances relating to the commission of the offence, including the time, place and degree of participation by the respondent, as contained in the warrant was deficient in detail and consequently the warrant was not in the form required by the 2003 Act. Furthermore, the respondent submitted that the warrant was not properly endorsed for execution pursuant to section 13 of the Act of 2003 as the endorsement on the warrant was signed by a Registrar of the High Court.
Held by Peart J. in making the surrender order requested by the applicant:
1. That the time, place and degree of involvement of the respondent was sufficiently set forth in the warrant.
2. That the administrative act of endorsing a warrant following a determination by a High Court Judge that a warrant should be endorsed, was something which could be provided for by a rule of court by virtue of the provisions of s.14(2) of the Courts (Supplemental Provisions) Act, 1961. S.I. No. 23 of 2005, section 1(3) provided that the endorsement could be signed by a Registrar of the High Court and accordingly the warrant was properly endorsed for execution.
RULES OF THE SUPERIOR COURT (EUROPEAN ARREST WARRANT ACT 2003 & EXTRADITION ACTS 1965 TO 2001) 2005 SI 23/2005
COURTS OF JUSTICE ACT 1924 S22
COURTS OF JUSTICE ACT 1924 S36(i)
COURTS OF JUSTICE ACT 1924 S36(ii)
COURTS OF JUSTICE ACT 1936 S67
COURTS OF JUSTICE ACT 1936 S68
Mr Justice Michael Peart delivered on the 23rd day of August 2005:
The respondent has been arrested on the 5th July 2005, and was thereafter brought before the High Court on the 6th July 2005 as required by the provisions of s.13 of the European Arrest Warrant Act, 2003, as amended, ("the Act") whereupon a date was fixed for the hearing of this application by the applicant under s. 16 of the Act for an order for the surrender of the respondent to the authorities in Scotland where it is intended to charge him with the offence of murder.
There are a number of matters specified in section 16 upon which this Court must be satisfied before the order sought may be made. Firstly, the Court must be satisfied that the person named in the warrant is the person before the Court and in respect of which the order is sought. There is no issue raised in the present case as to identity, and the Court is in any event satisfied from the evidence contained in the affidavit of Sgt. Anthony Linehan, the arresting officer, sworn herein on the 19th July 2005 that the respondent is the person named in the warrant. There is sufficient information contained in that affidavit to leave no doubt whatsoever as to his identity.
Secondly, the Court must be satisfied that correspondence is made out within the meaning of that term under the Act. In this case, the offence of murder is one of the offences in respect of which the Framework Decision dated 13th June 2001, to which the Act gives effect, provides that correspondence does not have to be made out. There is in effect a presumption of correspondence in respect of the offence referred to therein in that regard. It is sufficient that the appropriate box be ticked in paragraph (e) I of the warrant itself. This has been done.
Thirdly the Court must be satisfied that the warrant is in the proper form as provided by the Framework Decision, which contains a prescribed form of warrant. A point is raised in relation to this matter in as much as it is contended by the respondent that the description of the circumstances in which the offence was committed, including the time, and place and degree of participation/involvement by the respondent, as contained in the warrant on foot of which the respondent was arrested, is deficient in detail, and I will deal with that submission in due course.
Fourthly, the Court must be satisfied that the European arrest warrant was properly endorsed for execution pursuant to section 13 of the Act of 2003. Again a point is raised in this regard, in as much as it is submitted on behalf of the respondent that while the section provides that "the High Court" shall endorse the warrant for execution, the endorsement on the warrant in this case is signed by a "Registrar", above which appear the words: "this warrant is endorsed for execution pursuant to Order of the High Court". It is worth noting at this point that this form of endorsement is one specifically provided for by S.I. No. 23 of 2005 at section 1(3) thereof.
Conor Devally SC has submitted that the wording of the endorsement prescribed in the statutory instrument is contrary to what is required for compliance with the words of the section of the Act, and I will return to that in due course.
There are a number of other matters referred to in s.16 of the Act of 2003 which the Court must be satisfied about, and I am so satisfied in so far as any of them apply in this case. Indeed, no issue is taken by the respondent in relation thereto.
In all respects therefore the Court is satisfied that an order can be made under s. 16(1) of the Act, subject to the Court being satisfied that the objections put forward by the respondent are not valid.
Mr Devally submits that the warrant in this case on foot of which the respondent was arrested is not in the form required by the Act of 2003. As already stated there is a prescribed form of warrant for use in these cases, and one of the paragraphs contained in that form is headed:
"Description of the circumstances in which the offence was committed, including the time and place they were committed and the degree of participation by the requested person"
Mr Devally submits that the way in which this section of the warrant has been completed falls short of containing sufficient information in order to comply with what is required to be inserted by the heading. To deal with this submission, I ought to set out in full what details have been provided in the warrant under that heading:
"On 13 August 2004, the accused Daniel Hamilton, co-accused Joseph Hamilton, the deceased Paul Anthony Donald Whyte and witnesses Margaret Hamilton and Angela Hamilton were within Flat 2, 12 Riverford Road, Pollokshaws, Glasgow. Between approximately 12.30am (sic) the deceased, Daniel Hamilton and Joseph Hamilton were alone in the upstairs bathroom where an altercation took place. Sometime later the accused Daniel Hamilton left the premises.
Upon investigation witness Margaret Hamilton found the now deceased badly injured within the bathroom. An ambulance was called and the deceased was conveyed to the local hospital. The deceased was not responding to medical treatment and was found to be suffering from a catastrophic brain injury and a depressed skull fracture. He remained unconscious and was taken to the Intensive Care Unit and put on a life support machine. The life support machine was switched off as he did not respond to any medical treatment.
On 1 October 2004 at Sheriff Court of Glasgow and Strathkelvin, Glasgow, Scotland a petition arrest warrant was granted for Daniel Hamilton in respect of the offence of murder."
Mr Devally submits that while the date is stated, namely 13 August 2004, on which the respondent is said to have been in the flat with the deceased, the paragraph then states in a different sentence "Between approximately 12.30am the deceased.........were alone in the upstairs bathroom..." He points out that firstly there is obviously some omission of words from that sentence following the words "Between approximately 12.30am", and also that it is not clear to which date "12.30am" relates....
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