Minister for Justice, Equality and Law Reform v M.M.

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 19 December 2007
• Neutral Citation: [2007] IEHC 443
• Court: High Court
• Date: 19 December 2007

[2007] IEHC 443

THE HIGH COURT

RECORD NUMBER 2007 NUMBER 59 EXT

Min for Justice v M (M)

BETWEEN:

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT

AND

M M

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

OFFENCES AGAINST THE PERSON ACT 1997 S3

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

EUROPEAN ARREST WARRANT ACT 2003 S21(a)

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

MENTAL HEALTH ACT 1983 S37 (UK)

MENTAL HEALTH ACT 1983 S41 (UK)

MENTAL HEALTH ACT 1983 S37(1) (UK)

MENTAL HEALTH ACT 1983 S37(8) (UK)

ERKALO v NETHERLANDS 1999 28 EHRR 509

X v UNITED KINGDOM 1982 4 EHRR 188

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(4)

R v BIRCH 1989 11 CAR (S) 202 (CA)

MENTAL HEALTH ACT 1983 S41(3)(a) (UK)

MENTAL HEALTH ACT 1983 S138 (UK)

POLICE & CRIMINAL EVIDENCE ACT 1984 S26 (UK)

MENTAL HEALTH ACT 1983 SCHED 2 (UK)

MENTAL HEALTH ACT 1983 S18 (UK)

MENTAL HEALTH ACT 1983 S35(10) (UK)

MENTAL HEALTH ACT 1983 S36(8) (UK)

MENTAL HEALTH ACT 1983 S38(7) (UK)

MENTAL HEALTH ACT 1983 S36(1) (UK)

KANSAS v HENDRICKS 1997 521 US 346

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1

CRIMINAL JUSTICE ACT 1960 S13

EUROPEAN CONVENTION ON EXTRADITION 1957 ART 25

EUROPEAN ARREST WARRANT ACT 2003 S10

MIN JUSTICE v ALTARAVICIUS 2006 3 IR 148

MIN JUSTICE v BRENNAN UNREP SUPREME 4.5.2007 2007 IESC 21

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999In, 2000 2 IR 360 2000/11/4122

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 26

VARGA v O'TOOLE UNREP MORRIS 31.7.1998 1998/ /12943 1998 IEHC 226

CRIMINAL LAW (INSANITY) ACT 2006

M'NAGHTEN RULES 1843

MIN JUSTICE v BRENNAN 2007 2 ILRM 241

MIN JUSTICE v STAPLETON UNREP SUPREME 26.7.2007 2007 IESC 30

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1(1)

EUROPEAN ARREST WARRANT ACT 2003 S10(d)

BOURKE v AG 1972 IR 36

EXTRADITION ACT 1965

MIN JUSTICE v TOBIN UNREP PEART 12.1.2007 2007 IEHC 15

CRIMINAL LAW

Extradition

European arrest warrant - Statutory interpretation - Words and phrases - "Detention order" - Principles to be applied - Legislative history - Nature of detention for which surrender can be ordered - Respondent absconding from detention in mental hospital in requesting state - Whether detention in mental hospital regime of punishment - Whether hospital order "detention order" - Whether surrender of respondent would breach rights under the European Convention on Human Rights - Whether surrender of respondent should be ordered - Minister for Justice v Tobin [2007] IEHC 15 (Unrep, Peart J, 12/1/2007) considered - Framework Council Decision 2005/584/JHA, articles. 1 and 2 - European Arrest Warrant Act 2003 (No 45), s 10 - Surrender ordered (2007/59EXT - Peart J - 19/12/2007) [2007] IEHC 443

Minister for Justice, Equality and Law Reform v M(M)

1 Mr Justice Michael Peart delivered on the 19th day of December 2007 :

2 The surrender of the respondent is sought by a judicial authority in the United Kingdom pursuant to a European arrest warrant which issued on the 23rd of March 2007. That warrant was duly endorsed by the High Court for execution on the 4th April 2007, and the respondent was duly arrested on foot of same on the 11 ^th April 2007 and was brought before the High Court as required by the provisions of section 13 of the European Arrest Warrant Act, 2003, as amended. He was remanded in custody pending the hearing of the present application under section 16 of the Act for an order for his surrender to the issuing state.

3 His surrender is sought so that he can continue to be detained in the United Kingdom pursuant to what is described in the warrant as a "Hospital Order" and a restrictions order made in 1994 following his conviction in respect of a rape offence, and an offence of assault occasioning actual bodily harm. It will be necessary to deal in due course with the nature of that order made in 1994 following the respondent's conviction on these offences. I will come to that in due course when considering the points of objection which have been raised by the respondent in opposition to the present application.

4 No issue is taken by the respondent as to his identity and the court is satisfied in any event that the respondent who is before the court, having been arrested here on the 11th of April 2007, is the person in respect of whom this European arrest warrant was issued.

5 The court is also satisfied that the offence of assault causing grievous bodily harm would, if committed in this state, give rise to an offence here under section 3 of the Offences against the Person Act 1997. In relation to the offence of rape, this is an offence in respect of which double criminality does not require to be verified, as provided for in Article 2.2 of the Framework Decision. The minimum gravity requirement under the framework decision is satisfied in respect of each of these offences.

6 Subject to dealing with the points of objection raised on behalf of the respondent, there is no reason to refuse a surrender under sections 21 a, 22, 23 or 24 of the Act, and I am also satisfied that his surrender is not prohibited by Part III of the Act or the Framework Decision.

7 The European arrest warrant states in paragraph (c) that on the first of August 1994, in respect of the rape offence, the respondent was made the subject of "hospital order under section 37 of the Mental Health Act 1983 with indefinite special restrictions under section 41 of the Menial Health Act 1983 imposed at the Central Criminal Court, London on 1 August 1994".

8 The warrant states in respect of the assault offence that the respondent was also made the subject of "Hospital Order under section 37 of the Mental Health Act 1983 with indefinite special restrictions under section 41 of the Mental Health Act 1983 imposed at the Central Criminal Court London on 1 August 1994". Under the heading "Remaining sentence to be served", it has indicated that "the defendant is to be detained indefinitely".

9 In Points of Objection, the respondent submits that the Hospital Order made against him in respect of these offences is not a sentence of imprisonment or a sentence of detention, and that therefore the respondent is not a person who comes within the meaning of Section 10 (de) of the European arrest warrant act 2003 as amended, and that accordingly no European arrest warrant has been duly issued. The point is made also raised that although the respondent was convicted of the offence of rape and the offence of assault occasioning actual bodily harm, he was not the subject of a finding of 'guilty but insane' or some other diminished responsibility verdict, but was subjected to what amounts to indefinite detention pursuant to section 37 of the Mental Health Act 1983 and that this order and the restriction order made pursuant to Section 41 of that act does not constitute a penal sanction and is therefore outside the provisions of the framework decision and the Act.

10 It is a fact that following his conviction and the making of that Hospital Order and restrictions the respondent has already, prior to his absconding, been detained for sonic 12 years equating to some 16 years detention if normal remission is taken into account. According to the warrant, the respondent escaped from the place of detention where he had been since August 1994 and made his way to this country.

11 It is also a fact that is the respondent has been arrested in this jurisdiction on a charge of rape, and is currently in custody here awaiting trial next year.

12 The essential question which this court is now asked to determine by the respondent is whether the Hospital Order and Restriction Order already referred to is a punishment following conviction which comes within the meaning of the European Arrest Warrant Act 2003 and the Framework Decision, and therefore, whether this type of detention is one for which a surrender order can be made.

13 Aileen Donnelly S. C. on Behalf of the Respondent Has Referred to an Affidavit from an English Barrister, Jason Elliott B.L. who expresses his opinion on the nature of a Hospital Order and restrictions, such as were imposed upon the respondent. He notes first of all that the Mental Health Act 1983 is couched in essentially therapeutic language and contains powers which can only operate where the commission of a criminal offence has been demonstrated. He proceeds to set out the relevant provisions of that Act. For example, he sets out the provisions of section 37 (1) as follows:

"Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates court of an offence punishable on summary conviction with imprisonment and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified."

14 He sets out section 37 (8) as follows:

"Where an order is made under this section, the court shall not (a) pass sentence of imprisonment or impose a fine or make a community Order (within the meaning of Part 12 of the Criminal Justice Act 2003) in respect of the offence.

(b) if the order under...