Minister for Justice, Equality and Law Reform v SMR

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 15 November 2007
• Neutral Citation: [2007] IESC 54
• Court: Supreme Court
• Docket Number: [S.C. Nos. 430 and 441 of 2005]
• Date: 15 November 2007

Min for Justice v R (SM)

BETWEEN

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT/APPELLANT

and

S M R

RESPONDENT/RESPONDENT

[2007] IESC 54

Murray C.J.

Denham J.

Kearns J.

Macken J.

Finnegan J.

430/2005

441/2005

THE SUPREME COURT

CRIMINAL LAW

Extradition

European arrest warrant - Delay - Reasons for delay - Right to expeditious hearing - Breach of constitutional rights - Whether surrender unjust or oppressive due to delay - Ill health of respondent - Right to life and bodily integrity -Assertion of defect in domestic warrant - Words and phrases - "Offence" - The State (C) v Frawley [1976] IR 365, LCB v United Kingdom (1998) 27 EHRR 212, Carne v O' Toole [2005] IESC 22 (Unrep, SC, 21/4/2005), Minister for Justice v Brennan [2007] IESC 21, [2007] 2 ILRM 241, Minister for Justice v Stapleton [2007] IESC 30, [2008] 1 ILRM 267, Dundon v Governor of Cloverhill Prison [2005] IESC 83 [2006] IR 18, Minister for Justice v Altaravicius [2006] 3 IR 148, Coward v Motor Insurance Bureau [1965] Ch 113, Hay v O' Grady [1992] IR 210 and McDonald v Radio Telefís Éireann [2001] 1 IR 355 considered - European Arrest Warrant Act 2003 (No 45), s 11(1)(A) - Council Framework Decision (2002/584/JHA), articles 8 and 71.1 - Applicant's appeal allowed (430 7 441/2005 - SC - 15/11/2007) [2007] IESC 54

Minister for Justice v R(SM)

SEXUAL OFFENCES ACT 1956 S14 (UK)

MIN FOR JUSTICE v DUNDON 2005 1 IR 261 2005 2 ILRM 149

EUROPEAN ARREST WARRANT ACT 2003 S12

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

CONSTITUTION ART 43.2

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN ARREST WARRANT ACT 2003 S15(10)

EUROPEAN ARREST WARRANT ACT 2003 S16(11)

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

EUROPEAN ARREST WARRANT ACT 2003 S16(12)

HAY v O'GRADY 1992 1 IR 210

MCDONALD v RADIO TELEFIS EIREANN (RTE) & ORS 2001 1 IR 355 2001 2 ILRM 1 2003 40 9555

C, STATE v FRAWLEY 1976 IR 365

LCB v UNITED KINGDOM 1998 27 EHRR 212

CARNE v O'TOOLE (ASSISTANT GARDA COMMISSIONER) UNREP SUPREME 21.4.2005 2005 IESC 22

EXTRADITION ACT 1965 S50(2)(bbb)

MIN JUSTICE v STAPLETON UNREP SUPREME 26.7.2007 2007 IESC 30

MIN JUSTICE v BRENNAN UNREP SUPREME 4.5.2007 2007 IESC 21

DUNDON v GOVERNOR OF CLOVERHILL PRISON 2006 1 IR 518 2006 1 ILRM 321 2005 17 3552 2005 IESC 83

EUROPEAN ARREST WARRANT ACT 2003 S3(2)

EUROPEAN ARREST WARRANT ACT 2003 S11

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S72

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8(1)(c)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8(1)(d)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 8(1)(f)

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(e)

EUROPEAN ARREST WARRANT ACT 2003 S11(1A)(d)

MIN FOR JUSTICE v ALTARAVICIUS UNREP 2006 3 IR 148 2006 IESC 23

1 Judgment of Mr Justice Finnegan delivered on the 15th day of November 2007

2 The Respondent was arrested on the 18th April 2005 on foot of a European arrest warrant issued on the 17th February 2005, endorsed by the High Court on the 12th April 2005. He is an Irish national and was born on the 12th November 1939. The European arrest warrant relates to three offences under section 14 of the United Kingdom Sexual Offences Act 1956 of indecent assault on his granddaughter who was born on the 28th December 1991 and which offences it is alleged were committed between the 30th June 2000 and the 1st September 2001.

3 The Respondent left Ireland to work in England at the age of 15 and continued to live there until 2001 but frequently returning to Ireland for holidays and to visit relations. His wife died in July 2000. As a result of his wife's death the family home had to be sold to satisfy claims of the Inland Revenue. His intention had been to reside in England with a daughter and son-in-law but he changed his mind after returning from a family holiday in Ireland in 2001 and in 2001 returned to live in Co. Kerry in sheltered accommodation provided by the Town Council. He describes his tenancy as a tenancy for life: while in practical terms this may be so the tenancy itself provides that it may be terminated at any time by the Council on giving four weeks notice. The tenancy further provides that the tenant shall not without the permission of the Council cease to reside in the premises for more than six weeks in any period of fifty two weeks.

4 The circumstances in which the offences were committed are set out in the European arrest warrant at paragraph (e) thereof as follows -

"S M R is the maternal grandfather of the complainant S N (date of birth 28/12/91). Following his wife's death his daughter C, S's mother, looked after his financial affairs and did general day-to-day things such as shopping and cooking for him. In late August 2001 the N family and S M R travelled to Tralee in Ireland to visit S M R's family. At the end of the holiday S M R decided to stay on and the N family returned home by boat and car. During the journey S told her mother that she did not like the way her grandfather touched and kissed her. C did not push S for details but, after they returned home, the girl told her mother that her grandfather had French kissed her (kissed her putting his tongue in her mouth) at a golf club near their home. On another occasion in his flat he had told her to sit next to him, had put his arm around her shoulder and had digitally penetrated her vagina through the material of her trousers. On a third occasion, whilst playing hypnotist, he had knelt beside her and rubbed his hand over her body, chest and legs. He then French kissed her several times telling her it was "their secret and not to tell any one". All the alleged offences were committed between 30th June 2000 and 1st September 2001 in Barnet, England. When S's mother and her aunt confronted their father with the child's allegations he did not deny them but said that he had been lonely since his wife's death. The family and S M R agreed that it would be better if he stayed in Ireland and did not report the matter to the police. However during 2002 S R returned sporadically to the B area and the family contacted Social Services who, in turn contacted the police and the family made a complaint.

S M R returned to Ireland and has never been arrested or interviewed about these allegations."

5 Allison Claire Reilly, who had conduct of the case on behalf of the Crown Prosecution Service, swore an affidavit in the matter dealing with the circumstances of the complaint. In September 2001 S told her mother that the Respondent had touched her inappropriately. In January 2002 her father informed Barnet Social Services of that fact but said that he did not want the police to become involved as the Respondent was in Ireland and the complainant was safe. On the 16th July 2002 the father contacted Social Services again and requested police involvement. As a result on the 25th July 2002 the police interviewed S's parents. S made a statement on video link on the 2nd August 2002. On the 15th October 2002 S's sister C made a statement by video link. On the 25th October 2002 S's sister S made a written statement. (Ms. Riley was cross-examined on her affidavit and from her answers she may have been in error and C may be the mother and S the aunt of the complainant). On the 30th October 2002 the Crown Prosecution Service decided to seek the Respondent's extradition. At that time the Crown Prosecution Service was aware that the Respondent returned to the United Kingdom from time to time to attend to financial matters and to attend Harefield Hospital, Middlesex, where he was receiving treatment for a heart condition. A domestic warrant for the Respondent's arrest was issued on the 14th January 2003 and he was circulated as wanted on the police national computer. Progress with the European arrest warrant was delayed however for two reasons -

6 1. The decision of the Supreme Court in Minister for Justice, Equality and Law Reform v Dundon [2005] 1 I.R. 261 was awaited. The decision of the High Court was delivered on the 14th May 2004 and of the Supreme Court on the 16th March 2005.

7 2. A Bill to amend to the European Arrest Warrant Act 2003, section 12 (3) was pending the effect of which would be to provide that an undertaking required under the Act might be set out in the European arrest warrant or in a separate document an effect of which would be to avoid the necessity for written undertakings to be provided in respect of specialty and re-extradition to a third territory and to obviate the need for such undertakings to be given by the judicial authority. The Criminal Justice (Terrorist Offences) Bill was presented to Dáil Éireann on the 16th December 2002 and enacted on the 8th March 2005. However the relevant amendment to the European Arrest Warrant Act 2003 was introduced at Committee stage which was taken on the 4th November 2004. Ms. R in cross-examination said that she was aware of the proposal to amend the 2003 Act from April/May 2004.

The points of opposition

8 The Respondent's points of opposition as amended and extended relevant to the appeal were as follows

9 2 "1.It is contended on behalf of the Respondent herein that a surrender to the United Kingdom is prohibited by section 37(1)(b) of the European Arrest Warrant Act 2003 and in particular by the constitutional guarantees that the State will vindicate the right to life and the right to bodily integrity of the Respondent pursuant to the provisions of Article 43.2 of the Constitution. It is contended on behalf of the Respondent that his health is such that interference with the Respondent's...