Minister for Justice, Equality and Law Reform v Draisey

• Jurisdiction: Ireland
• Judge: Mr Justice Michael
• Judgment Date: 24 November 2006
• Neutral Citation: [2006] IEHC 410
• Docket Number: [2006 No. 3 Ext.]
• Court: High Court
• Date: 24 November 2006

[2006] IEHC 410

THE HIGH COURT

Record Number: No. 3 Ext./2006

Minister for Justice v Draisey

Between:

Minister for Justice, Equality and Law Reform

Applicant

and

Kieran Thomas Draisey

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S16(4)

EUROPEAN ARREST WARRANT ACT 2003 S16(12)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) PREAMBLE PARA 9

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 6.2

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 12

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

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL LAW

Extradition

European arrest warrant - Bail - Refusal - Filing of notice of appeal - Whether solicitor's undertaking could be given - Whether court precluded from granting bail - Whether court could override statutory provision by virtue of original and inherent jurisdiction - Sui generis nature of process - Obligation on court to engage in process - Obligation of judicial authority to ensure surrender - Statutory interpretation - Safeguards and time limits - Proportionality of legislative provision - European Arrest Warrant Act 2003 (No 45), ss 16(4) and (12) - Council Framework Decision 2002/584/JHA, preamble and arts 1, 6, 12, 15 and 17 - Bail refused (2006/3Ext - Peart J - 24/11/2006) [2006] IEHC 410

Minister for Justice v Draisey

1 Mr Justice MichaelPeart delivered on the 24th day of November 2006:

2 Following the hearing of an application under s. 16 of the European Arrest Warrant Act, 2003, as amended, ("the Act") for the surrender of the respondent to the United Kingdom, the Court has today delivered its judgment and concluded that an order should be made under that section for the surrender of the respondent, and as required by s. 16(4) has made an order committing the respondent to Cloverhill Prison pending the order taking effect and his surrender being effected thereafter. That order takes effect after fifteen days, and thereafter surrender must take place not later than ten days, otherwise the respondent must be released.

3 The respondent wishes to lodge a Notice of Appeal against my judgment as permitted by the terms of s. 16(12) of the Act, but because of the shortness of the time since my order was made, same has not yet been perfected. While the Court has been informed that the Notice of Appeal is ready to be filed in the office of the Supreme Court, it appears that same will not be received there until such time as a copy of the perfected order can be lodged with it.

4 The respondent nevertheless seeks bail pending the hearing of his appeal, and his solicitor is prepared to give an undertaking to file the Notice of Appeal as soon as the order has been perfected and taken up from the Central Office - presumably some time on Monday morning. Ms. Dempsey on behalf of the applicant has informed the Court that her client, 'the Minister' has no objection in principle to the respondent being granted bail pending his appeal being determined, but that there is a difficulty in circumstances where no appeal has yet been lodged. That difficulty arises from the fact that there is a time limit in place within which surrender must be effected following the making of the order, and that in a previous case recently, where the judge in question had granted bail prior to a Notice of Appeal being filed, it happened that the Notice of Appeal was later served on the Chief State Solicitor, but for some reason it was never filed in the Supreme Court office. That meant that the stay on the order was never triggered under the terms of the stay granted pending appeal, and that time following the granting of the order under s.16 began to and continued to run from the date of the order.

5 The Chief State Solicitor's office, operating on an assumption that the Notice of Appeal was filed, did not check that matter specifically, and became aware of that situation only after the time for surrender under the Act had elapsed. Despite the fact that the Notice of Appeal had been served (but not filed) the stay on the order made under s. 16 of the Act was never triggered, and the time for surrender slipped by unnoticed by the authorities. The person whose surrender had been ordered had to be released by the Court. It is natural that in such circumstances, Ms. Dempsey's client, and indeed the Court which is the judicial authority who has the responsibility to ensure surrender, should be very concerned that such a situation should never happen again.

6 As to the availability of an undertaking from the solicitor for the respondent, I raised a potential difficulty in that regard, that while the solicitor in question would act in good faith and be conscious of his obligations as an officer of the Court, his client could in theory withdraw that solicitor's instruction to act after bail is granted and before the Notice of Appeal is filed, and in such a situation the mischief sought to be avoided by such an undertaking could occur. A solicitor may not give an undertaking in circumstances where he/she does not have complete control over its fulfilment. That complete control is a necessary ingredient of the high level of confidence placed in solicitors' undertakings. In my view, such complete control is absent where instructions may for any number of reasons be withdrawn by a client.

7 The applicant (the Minister) is in the absence of the actual filing of the Notice of Appeal, opposed to a stay on my order made this morning, and has submitted that when the Notice of Appeal is lodged in the Supreme Court, an application for a stay can be made to the Supreme Court which thereafter has seisin of the case.

8 But that difficulty relates only to the question of a stay being granted on the order. The question of any stay on the order is separate from the question of whether the respondent can be granted bail, not simply in the event that an appeal is lodged, but rather at all.

9 The matter giving rise to this judgment arises from the Court's expressed view in this case that, given the manner in which the Oireachtas has enacted s. 16(4) of the Act in order to give effect to the Framework Decision, whereby the Court is required to commit the respondent to prison following the making of an order under the section, the Court cannot grant bail pending appeal, and that this is the situation whether or not a stay has been granted pending appeal or not.

10 While I gave an ex tempore judgment late this evening explaining my reasons as clearly as I could at that time, I indicated that I would endeavour to prepare a written judgment setting out my reasons in a more detailed and considered way for the benefit of the Supreme Court, since I have been asked to, and have, made a production order so that the respondent can be present there when his Counsel and solicitor make an application there for a stay and for bail pending appeal.

11 By way of general background to the application the respondent's surrender is sought by the UK authorities so that he can face prosecution for six offences which are set out in the European arrest warrant. Those offences comprise kidnapping, false imprisonment, and assault occasioning actual bodily harm to his former partner, and making a threat to kill her. Naturally the respondent enjoys the presumption of innocence in respect of these alleged offences for which he will face a trial.

12 In my consideration of the capacity of the Court to grant bail after the order for surrender is made I have been conscious that it has often been stated judicially that the law of extradition is ' sui generis.' This concept extends to the replacement of traditional extradition pursuant to bilateral or multi-lateral treaties as between Member States, by a system of surrender under the European arrest warrant. I am conscious in particular that under these new arrangements, it is the judicial authority in each member state which is responsible for ensuring the availability of the person sought for surrender should an order be made. That seems clear from the terms of the 9 ^th paragraph in the Preamble to the Framework Decision, and Articles 6.2 and Article 12 thereof. These are set out below.

13 The 'sui generis' nature of the process means also that it is not an adversarial process in the usual sense. It is an inquiry by the Court, and a process by which the Court must engage upon its task in a sense independently of the parties, although the Court can be assisted, and is always greatly assisted, in its task by Counsel for the applicant Minister. But at the end of the day, the fact that the applicant may consider for example that a meritorious point of objection has been made by a respondent and would agree with the respondent that surrender should be ordered, cannot of itself absolve the Court forming its own view as to whether the respondent should be surrendered or not under the Act and the Framework Decision. In other words surrender could not be refused simply by the consent of the parties. The Court must itself engage in the decision making process. The European arrest warrant is a request from the judicial authority in one State to the judicial authority in another State. It is a unique process of judicial cooperation between Member States.

14 I refer to this aspect since in this case, Counsel for the applicant Minister has stated first of all that the applicant does not object to bail being granted in this case, and has also stated, having taken instructions on the matter, that the Minister is of the view that the...