Minister for Justice, Equality and Law Reform v J. S. S

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 19 December 2006
• Neutral Citation: [2006] IEHC 403
• Court: High Court
• Date: 19 December 2006
• Docket Number: Record Number: No. 115 Ext/2006

[2006] IEHC 403

THE HIGH COURT

Record Number: No. 115 Ext/2006

MIN FOR JUSTICE v S (J S)

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

J. S. S.

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

SEXUAL OFFENCES ACT1956 S14 (UK)

INDECENCY WITH CHILDREN ACT 1960 S1(1) (UK)

CRIMINAL LAW (RAPE)(AMDT) ACT 1990 S2

CHILDREN ACT 1912 S12

O'MALLEY SEXUAL OFFENCES LAW POLICY & PUNISHMENT 1996 80

CONSTITUTION ART 38.1

H v DPP UNREP SUPREME 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 R (S) UNREP PEART 15.11.2005 2005 IEHC 377 2005/38/7893

EUROPEAN ARREST WARRANT ACT 2003 S16(1)

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent is sought on foot of a European arrest warrant dated the 18^th August 2006 which has been issued by a Judicial Authority in the United Kingdom, namely a District Judge at York City Magistrates Court. This warrant was endorsed by the High Court for execution under s. 13 of the European Arrest Warrant Act, 2003 as amended ("the Act") on the 8^th September 2006, and on foot thereof the respondent was arrested on the 14^th September 2006 and brought before the High Court as required, whereupon he was remanded from time to time until the application for an order of surrender was heard before me on the 23rd November 2006.

2 No issue is raised by the respondent as to identification, and I am satisfied from the affidavit evidence of Sgt. Martin O'Neill, the arresting Garda officer that the respondent before the Court is the person in respect of whom this European arrest warrant has been issued.

3 I am also satisfied that there is no requirement to refuse to order surrender by virtue of anything contained in sections 21A, 22, 23, or 24 of the Act, and, subject to dealing with the objection raised by the respondent regarding delay and his state of health, that the surrender of the respondent is not prohibited under Part III of the Act.

4 The offences with which the respondent is charged in England are of two offences of "indecent assault on a female", contrary to s. 14 of the Sexual Offences Act, 1956, and one of "indecency with a child" contrary to s. 1(1) of the Indecency with Children Act, 1960. The alleged offences took place on dates ranging between 1st June 1987 and 2^nd January 1988. Remy Farrell BL for the applicant submits that each of the offences of indecent assault set forth in the warrant would, if committed in this jurisdiction give rise to offences here of sexual assault under s. 2 of the Criminal Law (Rape)(Amendment) Act, 1990. I agree. The facts as disclosed in the warrant leave no room for doubt in that regard, and no issue is raised in that regard by the respondent. However, correspondence with the offence of "indecency with a child" is more problematical. The offence is said to arise from certain words spoken by the respondent on the occasion of the first indecent assault. These spoken words are said to give rise to a separate offence of "indecency with a child" contrary to the section already referred to. The respondent while committing the indecent assault is alleged to have said to the complainant: "What if I asked you to drop your knickers now. Would you?". The question arising is whether if these words were spoken to a child in this jurisdiction, they would on their own give rise to an offence. Mr Farrell suggests that such words spoken here to a child would be an offence under s. 12 of the Children Act, 1912, and in this regard has referred to O'Malley on Sexual Offencesat p.80 where the learned author states:

"It is, however, an offence (under s. 12 of the Children Act 1908) for a person over the age of 17 years who has custody, charge or care of any child or young person to wilfully assault, ill-treat, neglect, abandon or expose that child or young person in such a way that he is unnecessarily caused suffering or injury, including mental derangement."

5 Kieran Kelly BL submits that in this jurisdiction there would not be any offence, separate from the offence of indecent assault, committed by the utterance of these words, and even it is seen as having given rise to a separate offence in England, there is no corresponding offence in this jurisdiction.

6 Having looked at s. 12 of the 1912 Act, I am satisfied that correspondence is not made out in respect of that offence and that correspondence exists only in respect of the two indecent assault charges. Those offences satisfy the minimum gravity requirements for the purpose of the Act.

Delay and the health of the...