Minister for Justice Equality & Law Reform v Fallon aka O'Falluin

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 09 September 2005
• Neutral Citation: [2005] IEHC 321
• Docket Number: Record No.36EXT/2005
• Court: High Court
• Date: 09 September 2005

MIN FOR JUSTICE v FALLON AKA O FALLUIN

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 (AS AMENDED)

BETWEEN

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT

AND

MICHAEL FALLON AKA MICHÉAL Ó FALL ÚIN

RESPONDENT

[2005] IEHC 321

Record No.36EXT/2005

THE HIGH COURT

EXTRADITION

European arrest warrant

Validity - Execution of warrant - Compliance with framework decision - Whether court obliged to inquire into validity of European arrest warrant - Whether European arrest warrant duly issued - Extradition Act 1965(No 17), Part III - European Arrest Warrant Act 2003 (No 45), ss 5, 10, 13, 16, 37(1)(b,38) and 42 - Constitution of Ireland 1937,Article 40.4.1o - European Council Framework Decision 2002/584/JHA -Surrender ordered (2005/36Ext - Finlay Geoghegan J - 9/9/2005) [2005] IEHC 321

Minister for Justice, Equality and Law Reform v Fallon (aka Ó Fallúin)

Facts: section 10 of the European Arrest Warrant Act 2003 provides that “where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person that person shall, subject to and in accordance with the provisions of this Act and Framework Decision [of the Council of Ministers, of the 13th June, 2002], be arrested and surrendered to the issuing State”. On the 16th December, 2003, a warrant of arrest was issued in respect of the respondent. That warrant was sent to Ireland and intended to be executed pursuant to the provisions of the Extradition Act 1965. The respondent was arrested on the warrant which had been endorsed by the Gardaí on the 8th January, 2004, and brought before the High Court. The High Court discharged the respondent on consent following a relevant decision of the Supreme Court regarding the transitional provisions in respect of the European Arrest Warrant Act 2003. In the mean time, a European arrest warrant was issued by Bow Street Magistrate’s Court and endorsed for execution in the State by the High Court pursuant to section 13 of the Act of 2003. The respondent had not consented to surrender to the United Kingdom and the Court was, accordingly, obliged to conduct an enquiry under section 16 of the Act. The respondent contended that the European arrest warrant was based upon the warrant of arrest issued on the 16th December, 2003, which, having been executed on the 8th January, 2004, was no longer a valid warrant to arrest. It was also contended, inter alia, that the European arrest warrant was not “duly issued” within the meaning of section 10 of the Act.

Held by Ms Justice Finlay Geoghegan in adjourning the application to allow the parties to obtain further evidence in relation to the issues of English law or of compliance with the requirements of the Framework Decision that the Court in exercising jurisdiction under section 16 of the Act of 2003 was obliged to apply the provisions of the Act when construed in accordance with the Constitution.

That the Oireachtas had enacted the Act of 2003 for the purpose of implementing the State’s obligations under the Framework Decision.

That the situation in which a person was to be surrendered to an issuing State was not simply where a judicial authority in an issuing State issued a European arrest warrant but was confined to those situations in which such judicial authority “duly” issued such a warrant.

That the intent of the Oireachtas in using the word “duly” in section 10 of the Act of 2003 should, in accordance with the normal or ordinary meaning of the word, be construed as evidencing an intent that only where a European arrest warrant was issued in accordance with what was required by the Framework Decision, the stipulated consequences in this jurisdiction should follow.

Reporter: P.C.

EUROPEAN ARREST WARRANT ACT 2003 S16

EXTRADITION ACT 1965 PART III

EUROPEAN ARREST WARRANT ACT 2003 S50(1)

EUROPEAN ARREST WARRANT ACT 2003 S52(2)(b)

O'ROURKE v GOVERNOR OF CLOVERHILL PRISON & AG 2004 2 IR 456

EXTRADITION ACT 1965 S47

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(b)

EUROPEAN ARREST WARRANT ACT 2003 S16(1)(b)

EUROPEAN ARREST WARRANT ACT 2003 S13(1)

EUROPEAN ARREST WARRANT ACT 2003 S13(2)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005

MIN FOR JUSTICE v DUNDON 2005 2 ILRM 149

EUROPEAN ARREST WARRANT ACT 2003 S42(b)

EXTRADITION ACT 2003 S142

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

EUROPEAN ARREST WARRANT ACT 2003 S4A

CONSTITUTION ART 40.4.1

Ms. Justice Finlay Geoghegan

1 On 5th and 6th September, 2005, a hearing under s. 16 of the European Arrest Warrant Act,2003 was held for the purpose of determining whether the High Court should make an order directing that the respondent be surrendered to the United Kingdom pursuant to a European arrest warrant issued by District Judge Workman at Bow Street Magistrates” Court on 21st June, 2004. This judgment is being given on the issues argued in the course of that hearing. In the course of the hearing, it became apparent that there were potentially other issues, in relation to which further evidence might be necessary. The necessity of further evidence depended upon my decision on the issues being argued and hence I agreed to give judgment on those issues.

2 On 16th December, 2003, at Bow Street Magistrates” Court a warrant of arrest was issued in respect of the respondent in relation to an alleged offence of conspiring with others named therein to defraud the United Kingdom Passport Agency by the provision of false passport applications contrary to common law. That warrant was sent to Ireland and received in the Garda Commissioner's Office in December, 2003. It was then intended to be executed in Ireland pursuant to the provisions of Part III of the Extradition Act,1965. It was endorsed by an Assistant Commissioner on 2nd January, 2004, and the respondent was arrested on such warrant endorsed by the Assistant Commissioner on 8th January, 2004, and brought before the High Court.

3 The respondent was subsequently granted bail and remanded on bail to the High Court on successive dates the last of which was 29th June, 2004.

4 There were a number of warrants from the United Kingdom which had been received by the Garda Commissioner's Office prior to 1st January, 2004, which were endorsed by the Assistant Commissioner on 2nd January, 2004, and subsequently executed. One such warrant related to a Thomas James O'Rourke. In proceedings relating to the warrant executed against Mr. O'Rourke a challenge was made to the validity of the warrant having regard to the coming into effect of the European Arrest Warrant Act,2003, on 1st January, 2004. It was contended that s. 50 (1) of the Act of 2003 repealed Part III of the Act of 1965 and as the warrant in question had not been "produced to the Commissioner" prior to 1st January, 2004, it could not be dealt with in accordance with Part III of the Act of 1965 having regard to s. 50 (2) (b) of the Act of 2003. That challenge was ultimately upheld in a decision of the Supreme Court given on 13th May, 2004, O'Rourke v. Governor of Cloverhill Prison [2004] 2 IR 456. The warrant was held to be unlawful and Mr. O'Rourke released.

5 It appears that following such Supreme Court decision, an application was made on consent, to the High Court in the proceedings then pending against the respondent herein to withdraw the application for an order under s. 47 of the Act of 1965 and to discharge the respondent. Such order of the High Court was made on 22nd June, 2004.

6 In the mean time on 21st June, 2004, the European arrest warrant, the subject matter of the present proceedings, was issued by Bow Street Magistrates” Court. It was transmitted by fax to this jurisdiction on that date. On 17th June, 2005, an application was made to the High Court pursuant to s. 13 of the Act of 2003 for endorsement for execution in the State. I was informed that Peart J. who heard the application was not satisfied on the evidence then before him that such application had been made "as soon as may be" after receipt by the Central Authority in the State of the European arrest warrant. Following the filing of an affidavit of Charles Wallace, solicitor, of 4th July, 2005, dealing with the delay, the European arrest warrant was endorsed pursuant to an Order of Peart J. on 5th July, 2005.

7 On 6th July, 2005, the respondent was arrested on the European arrest warrant and has since that date been remanded in custody and is detained at Cloverhill Prison. He made an unsuccessful application for bail to Peart J. He also made an unsuccessful application for release pursuant to Article 40.4 of the Constitution. The judgment in that application was delivered by Peart J. on 10th August, 2005.

8 The respondent has not consented to surrender to the United Kingdom. The respondent has sworn an affidavit dated 3rd August, 2005. A notice of objection has been filed on his behalf. An affidavit of Peter Cauldwell, Barrister of England and Wales has also been filed on his behalf.

9 The grounds upon which it is contended on behalf of the respondent that this court should not make an order for surrender under s. 16 of the Act of 2003 may be summarised as follows:

10 1. The European arrest warrant issued on 21st June, 2004, is based upon the warrant of arrest issued by Bow Street Magistrates” Court on 16th December, 2003 ("the 2003 Warrant"). The 2003 Warrant was executed in this jurisdiction on 8th January, 2004. The respondent was remanded before the High Court in Ireland following arrest pursuant to the 2003 Warrant. On the 21st June, 2004, the 2003 Warrant having been executed was no longer a valid warrant to arrest. From these facts it is contended in the alternative:

11 (a) The European arrest warrant was not "duly issued" within the meaning of s. 10 of the Act of 2003 and is invalid.

12 (b) It was...