Minister for Justice & Equality v Nolan

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Edwards
• Judgment Date: 24 May 2012
• Neutral Citation: [2012] IEHC 249
• Date: 24 May 2012

Min for Justice v Nolan

APPROVED

Mr. Justice Edwards

JUDGMENT

Between/

THE MINISTER FOR JUSTICE AND EQUALITY

Applicant

And

GAVIN NOLAN

Respondent

[2012] IEHC 249

Record No. 350 EXT/2011

THE HIGH COURT

EXTRADITION LAW

European arrest warrant

Constitutional rights - Personal liberty - Presumption of innocence - Conviction warrant - Indeterminate sentence - Imprisonment for public protection - Preventative detention - Whether correspondence - Whether minimum gravity - Whether right to personal liberty intended to benefit citizen outside State - Whether preventative detention in issuing state proximately connected with order for surrender - Whether preventative detention in issuing state prohibited by Constitution - Coffin v United States 156 US 432 (1895); King v Attorney General [1981] IR 233; People (DPP) v Campbell (1983) 2 Frewen 131; Clarke v McMahon 1 IR 228; Nottinghamshire County Council v B(K) [2011] IESC 48 (Unrep, SC, 15/12/2011); Minister for Justice and Equality v Shannon [2012] IEHC 91 (Unrep, Edwards J, 15/2/2012) considered - European Arrest Warrant Act 2003 (No 45), ss 16 & 37 - Constitution of Ireland 1937, Articles 38.1 & 40.4.1 - Surrender refused (2011/350EXT - Edwards J - 24/5/2012) [2012] IEHC 249

Minister for Justice and Equality v Nolan

Facts The surrender of the respondent was sought by the authorities in the United Kingdom of Great Britain and Northern Ireland on foot of a European arrest warrant (EAW) which related to two offences, namely attempted rape and assault occasioning actual bodily harm which the respondent had been convicted of and duly sentenced to imprisonment. The respondent did not consent to his surrender. However, no issue was raised regarding the identity of the respondent, his arrest, the form, endorsement and execution of the warrant and in relation to correspondence and minimum gravity. Additional information supplied by the issuing judicial authority stated that an indeterminate sentence was imposed on the respondent for public protection with the minimum custodial term of 30 months to be served before the respondent was eligible for release providing it was considered that there was not a significant risk to members of the public or serious harm by him committing a further specified offence. Having spent five years and three months in custody, the respondent was release on temporary release but failed to return to prison on the required date in July 2010. The Parole Board was due to determine the respondent"s remaining sentence in October 2010. The EAW herein stated that the respondent"s release will not be recommended by the Parole Board if he is surrendered. The respondent, who was an Irish citizen objected to his surrender and argued that it was prohibited by section 37(1) of the European Arrest Warrant Act, 2003. More specifically, the respondent submitted that his surrender would constitute a contravention of Article 40.4 of the Constitution of Ireland because the sentence he would be required to serve was preventative in nature, being an indeterminate sentence of imprisonment for public protection under the terms of the English Criminal Justice Act 2003. The respondent submitted that he had already served the punitive element of the sentence which was expressly specified as 30 months. It was submitted that preventative detention is unconstitutional save for limited provisions in relation to the refusal of bail and that the type of sentence the respondent would be required to serve was different in nature from any sentence which was known or constitutionally permissible in this jurisdiction. The respondent also submitted that there was a delay in holding his parole hearing and it was unclear when, if ever, he would receive another parole hearing. The respondent further argued that his continued imprisonment would constitute an arbitrary and disproportionate interference with his liberty. There was also evidence that there was a Bill before the legislature in the UK to abolish the system of indeterminate sentences of imprisonment for public protection but this abolition would not apply retrospectively. The respondent submitted there was no objective justification for causing such significant prejudice to him by treating him differently on account of the date of commission of the offences. The respondent adduced evidence from an expert on the law in the UK and how it applies in the respondent"s situation. It was submitted on behalf of the applicant that the reason preventative detention was repugnant to the Constitution was because it was inconsistent with Article 38 which required that a person should only be punished in the criminal law context following a trial in due course of law, an important aspect of which was the presumption of innocence. It was submitted that Article 38 did not have extra-territorial application and consequently it would not be contrary to the Constitution for the court to order the surrender of the respondent to face likely preventative detention upon the resumption of his sentence of imprisonment for public protection.

Held by Edwards J. in refusing to order the surrender of the respondent: That the respondent, would if surrendered be held in preventative detention. The respondent herein relied on his right under Article 40.4.1 of the Constitution not to be deprived of his personal liberty save in accordance with the law. The right contained within Article 40.4.1 and further guaranteed by Article 40.3.1 was a fundamental right that was intended to benefit a citizen both within and without the national territory. The respondent demonstrated that he would be subjected to preventative detention in the event he was surrendered and he proved that this apprehended event was inextricably linked with, and would arise as a direct consequence of any order of surrender that this court might make in the respondent"s case. The differences between the law of the requesting state and the law in this state concerning preventative detention were deeply rooted in principle and philosophy and the Irish Constitution forbids absolutely preventative detention. The right to the presumption of innocence, although it finds application within the scope of what is guaranteed by Article 38.1, is in itself a higher legal principle of universal application and is much more than a mere procedural trial right. This right is inextricably bound up with the fundamental right not to be deprived of liberty save in due course of law guaranteed in Article 40.4.1 and also with Article 40.3.2. Consequently, any measure affecting the personal liberty of the citizen that fails to respect the presumption of innocence must be regarded as being repugnant to the Constitution, and specifically Article 40.4.1 thereof, notwithstanding the fact that Article 38.1 does not have extra territorial effect. In all the circumstances, the respondent demonstrated that his surrender would be prohibited by the Constitution. It was not appropriate to order the surrender of the respondent.

Nottinghamshire County Council v B and Others [2011] I.E.S.C. 48 followed.

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2(2)

EUROPEAN ARREST WARRANT ACT 2003 S45

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S79

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S80

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S81

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S82

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004 ART 2

EUROPEAN ARREST WARRANT ACT 2003 (DESIGNATED MEMBER STATES) ORDER 2004 SI 4/2004 SCHED

SEXUAL OFFENCES ACT 1956 S1 (UK)

OFFENCES AGAINST THE PERSON ACT 1861 S47

CRIMINAL JUSTICE ACT 2003 S226 (UK)

CRIMINAL JUSTICE ACT 2003 S227 (UK)

POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000 S82(4) (UK)

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

MIN FOR JUSTICE v BIGGINS UNREP PEART 8.11.2006 2006/39/8360 2006 IEHC 351

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(B)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S1

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2(1)

EUROPEAN ARREST WARRANT ACT 2003 S38(1)(A)(ii)

CONSTITUTION ART 40.4

EUROPEAN ARREST WARRANT ACT 2003 S37(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

CONSTITUTION ART 40.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

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

CRIMINAL JUSTICE ACT 2003 S225 (UK)

R (JAMES & ORS) v SECRETARY OF STATE FOR JUSTICE 2010 1 AC 553 2009 2 WLR 1149 2009 4 AER 255

CONSTITUTION ART 40.4.6

CAFFREY v GOVERNOR OF PORTLAOISE PRISON 2012 2 ILRM 88 2012 IESC 4

ARTICLE 26 OF THE CONSTITUTION & SECTION 5 & SECTION 10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING BILL) 1999, IN RE 2000 2 IR 360 2000/11/4122

AG, PEOPLE v O'CALLAGHAN 1966 IR 501 1968 102 ILTR 45

LYNCH & WHELAN v MIN FOR JUSTICE & ORS UNREP SUPREME 14.5.2010 2010 IESC 34

DOWLING v MIN FOR JUSTICE 2003 2 IR 535 2003/12/2687

WHELAN & LYNCH v MIN FOR JUSTICE & ORS 2008 2 IR 142 2007/60/12832 2007 IEHC 374

MIN FOR JUSTICE v MURPHY 2010 3 IR 77 2010 2 ILRM 395 2010/35/8853 2010 IESC 17

MIN FOR JUSTICE v M (M) UNREP PEART 19.12.2007 2007/40/8385 2007 IEHC 443

AG v DOYLE (ORSE WEST) UNREP PEART 21.1.2010 2010/3/635 2010 IEHC 212

KANSAS v HENDRICKS 1996 521 US 346

S (VT) v HEALTH SERVICE EXECUTIVE (HSE) & ORS UNREP EDWARDS 11.2.2009 2009/52/12971 2009 IEHC 106

CONSTITUTION ART 40

HEALTH ACT 1947 S38

HEALTH ACT 1953 S35

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