Minister for Justice Equality and Law Reform v Aamond

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 24 November 2006
• Neutral Citation: [2006] IEHC 382
• Docket Number: Record Number: No. 86 Ext./2006
• Court: High Court
• Date: 24 November 2006

[2006] IEHC 382

THE HIGH COURT

Record Number: No. 86 Ext./2006

MIN FOR JUSTICE v AAMOND

Between:

Minister for Justice, Equality and Law Reform

Applicant

and

Poul John Aamond

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 PART II S29(1)

EUROPEAN CONVENTION ON EXTRADITION ART 7.2

EXTRADITION ACT 1965 (PART II) (NO 23) ORDER 1989 SI 9/1989

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

EXTRADITION ACT 1965 S45

EXTRADITION ACT 1965 S21A

EXTRADITION ACT 1965 S22

EXTRADITION ACT 1965 S23

EXTRADITION ACT 1965 S24

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S44

DANISH CRIMINAL CODE S7

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4.7(b)

CRIMINAL JUSTICE ACT 1994 S34

EUROPEAN ARREST WARRANT ACT 2003 S5

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4.7

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 7.4

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

EUROPEAN ARREST WARRANT ACT 2003 S40

EUROPEAN ARREST WARRANT ACT 2003 S37

EXTRADITION ACT 1965 PART III S50(2)(bbb)

EXTRADITION ACT 1965 PART III S50

EUROPEAN ARREST WARRANT ACT 2003 S47

EXTRADITION ACT 2003 S14 (UK)

CONCISE OXFORD DICTIONARY 8ED 1990 "OPPRESSIVE"

KOCIUKOW v DISTRICT COURT OF BIALYSTOK III PENAL DIVISION 2006 2 AER 451

M (P) v DPP 2006 2 ILRM 361

H v DPP UNREP SUPREME COURT 31.7.2006 2006/27/5802 2006 IESC 55

R (K) & R (P) v DPP UNREP SUPREME 7.11.2006 2006/49/10437 2006 IESC 59

MIN FOR JUSTICE v STAPLETON UNREP PEART 21.2.2006 2006/40/8565 2006 IEHC 43

DUNDON v GOVERNOR OF CLOVERHILL PRISON 2006 1 IR 518

HEYWOOD v AG UNREP HIGH PEART 26.10.2006 2006/29/6124

Abstract:

Criminal law - Extradition - Interpretation - Delay - European Arrest Warrant Act, 2003 - Whether in the unusual circumstances of this case the surrender of the respondent was prohibited by Part 3 of the Act or the Framework Decision.

Facts: The surrender of the respondent was sought by the Danish Authorities in relation to drug smuggling offences allegedly committed by the respondent in 1988. However, it was alleged that the offences were committed outside the territory of Denmark and involved the transportation of drugs on a vessel known as ‘Nerma’. The extradition of the respondent was previously refused in 1993 on the basis that extradition for an extra-territorial offence was precluded in the absence of the state also exercising an extra-territorial jurisdiction. Despite the fact that the domestic warrant issued in 1993, the European Arrest Warrant did not issue until 2005. It was argued on behalf of the respondent that his surrender would be contrary to the specific provisions of Section 44 of the Act and Article 4.7(b) of the Framework Decision. Furthermore, it was argued that having regard to the terms of section 34 of the Criminal Justice Act, 1994, the respondent on the date on which the European Arrest Warrant was issued, could not have been prosecuted under this section for offences committed outside this State as the territory where ‘Nerma’ was registered was not a convention State at that time. The respondent also argued that his surrender should be refused on the basis of the lapse of time since the commission of the alleged offences and in this regard he relied on sections 40 and 37 of the Act.

Held by Peart J. in refusing the surrender of the respondent:

1. That at the time of this application the territory where ‘Nerma’ was registered was a convention State and therefore the offences were taken outside the exclusionary provisions of section 44. According to the words used in section 44 and Article 4.7 the surrender of the respondent was not prohibited.

2. That the lapse of time in this case was exceptional and this factor together with the other exceptional circumstances would render it oppressive or invidious to surrender the respondent and having regard to section 37 of the Act, his surrender ought to be refused. However, if the correct test to be applied in determining the issue of delay was whether there was a risk of an unfair trial, then the surrender of the respondent would not be refused. However, in the circumstances of this case where there was uncertainty as to how the issue of delay should be considered, the construction by which the result more in ease of the requested person was achieved should be applied.

Reporter: L.O’S.

Judgment of

Mr Justice Michael Peart

1 This case has by way of background some very unusual features, and, therefore, before dealing with the application itself under s. 16 of the European Arrest Warrant Act2003, as amended ("the Act") for the surrender of the respondent to Denmark I will set out that background as fully as seems necessary.

2 The domestic warrant on foot of which the present European arrest warrant was issued dates back to the 5th February 1993. At that time the respondent was charged with three offences which can be broadly classified as drug smuggling charges. An important feature of those charges is that it is alleged that the respondent committed these acts outside the territory of Denmark, namely "from the waters north of Aruba off Venezuela to the waters off the Bahamas".

3 One of the allegations is that in June 1988 a quantity of cocaine was transported in a vessel named “Nerma”, of which the respondent was First Mate, from these Venezuelan waters to the waters off the Bahamas, and then loaded onto a receiving vessel for which $25,000 was received. Another allegation is similar in nature but relating to a later date, namely November 1988. A further allegation relates to the splitting of another party's share of the proceeds of the June offence. The precise details do not matter, but the fact that the offences are alleged to have taken place outside the territory of Denmark is critical.

4 In 1993 when the domestic warrant was issued in Denmark, the respondent was already residing in this country. His extradition was sought here at that time, resulting in his arrest and an order being made for his extradition in the District Court pursuant to Part II of the Extradition Act,1965, and in particular section 29(1) thereof. The respondent challenged his detention under that order by way of an application for Habeas Corpus on the grounds that the offence in respect of which his extradition was sought was an offence which was alleged to have been committed outside the territory of the requesting state, namely Denmark, and was one therefore which was not capable of being prosecuted here. The Supreme Court ordered his release on the ground that extradition for an extraterritorial offence was precluded in the absence of the State also exercising an extra-territorial jurisdiction. It was held, inter alia, that extradition should be prohibited since the offence for which extradition was requested had been alleged to have been committed outside the requesting country's territory, and the law of this country did not allow prosecution for such an offence when committed outside the territory of Ireland. Some subsequent changes in the law here are relevant and I will return to that in due course.

5 By the time of this release the respondent had already spent fourteen months in prison here. In an affidavit sworn by the respondent to ground his opposition to the present application, the respondent states that he understood at that time that the reason for his extradition in effect being refused was not something which could simply be corrected so that a further request for his extradition could be made. Consequently, he states, he thereupon set about rebuilding his life in this country, since it was highly unlikely in his view that the Danish authorities would renew his Danish passport which by that time had expired. He outlines in his affidavit the manner in which he settled in Waterford and the ways in which he integrated himself into society here both in terms of voluntary work in the community, as well as paid employment and re-training. He is now retired from any paid employment. The respondent is aged fifty nine. He had assumed that there would not be any further attempt made to seek his extradition following the ordering of his release by the Supreme Court in 1994. He states also that his recent arrest under a European arrest warrant has had a devastating effect on the modest life which he had rebuilt for himself in Waterford, and he fears that while he is in custody following this arrest his rented accommodation will be lost. He feels that following his release in 1994 he was entitled to expect that things were at an end as far as any threat of extradition was concerned and that he could get on with his life. He is of the view that to be surrendered now would be oppressive and invidious. He also points to the lack of any explanation for why it has taken twelve years for his surrender to be once again sought.

6 That then is a brief outline of the background to the present application for the surrender of the respondent on foot of the European arrest warrant so that he can face trial for the same offences for which extradition was refused under Part II of the 1965 Act some twelve years ago.

7 As I have stated, the European arrest warrant in this case issued in Denmark on the 26th July 2005 based on the domestic warrant issued in 1993. The respondent was arrested here on the 22nd August 2006 following the endorsement of the warrant under s. 13 of the Act on the 28th July 2006. No point of objection is raised as to the identity of the respondent or the manner of his arrest on that date. He was properly brought before the Court as required following his arrest and remanded in custody from time to time until this Court heard the...