Minister for Justice & Equality v Damji
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 15 June 2022 |
| Neutral Citation | [2022] IESC 27 |
| Court | Supreme Court |
| Docket Number | [RECORD NO.: 17/22] |
[2022] IESC 27
MacMenamin J.
Charleton J.
Baker J.
Woulfe J.
Murray J.
[RECORD NO.: 17/22]
THE SUPREME COURT
European arrest warrant – Surrender – European Arrest Warrant Act 2003 s. 37 – Appellant appealing from the decision granting an order for the surrender of the appellant to the United Kingdom pursuant to a European arrest warrant – Whether an order for surrender would contravene the appellant’s rights under s. 37(a) and (b) of the European Arrest Warrant Act 2003
Facts: The appellant, Ms Damji, appealed to the Supreme Court from the decision of Burns J in the High Court, granting an order for the surrender of the appellant to the United Kingdom pursuant to a European Arrest Warrant dated the 29th July, 2020 (the EAW). The warrant in question was issued in the United Kingdom by Judge Gledhill, sitting at Southwark Crown Court, as the issuing judicial authority. The appellant objected to surrender on the grounds that she was a psychologically vulnerable person, and that, whilst she was in prison in the United Kingdom earlier, there was a failure to diagnose her condition accurately, and that, were she surrendered, she would not receive the forms of therapy which she required for her condition. She contended an order for surrender would contravene her rights under s. 37(a) and (b) of the European Arrest Warrant Act 2003, as amended, which prohibits surrender if such order would be incompatible with the State’s general obligations, under the ECHR, its protocols, any provision of the Constitution or, specifically, were the person to be surrendered, he or she would be tortured or subject to other inhuman and degrading treatment.
Held by MacMenamin J that there was no basis for concluding that the High Court judge erred in his findings; all of the judge’s inferences were fairly based on the material adduced before him. MacMenamin J held that the evidence in the case did not establish that the appellant, facing the possibility of serving a short remaining sentence, would be denied reasonable and required treatment, such as would violate her rights under the Constitution, EU law, or the ECHR. In MacMenamin J’s judgment, the appellant had not discharged the burden of proof which devolved upon her as a person objecting to extradition.
MacMenamin J held that the decision of the High Court would be affirmed and all arrangements for the execution of the order made would be a matter for that court.
Appeal dismissed.
Judgment of Mr. Justice John MacMenamin dated the 15th day of June, 2022
This is an appeal from the decision of Mr. Justice Paul Burns in the High Court, granting an order for the surrender of the appellant to the United Kingdom pursuant to a European Arrest Warrant dated the 29th July, 2020 (“the EAW”). The warrant in question was issued in the United Kingdom by His Honour Judge Gledhill, sitting at Southwark Crown Court, as the issuing judicial authority. The appellant objects to surrender on the grounds that she is a psychologically vulnerable person, and that, whilst she was in prison in the United Kingdom earlier, there was a failure to diagnose her condition accurately, and that, were she now surrendered, she would not receive the forms of therapy which she requires for her condition. She contends an order for surrender would contravene her rights under s.37(a) and (b) of the European Arrest Warrant Act, 2003, as amended (“the EAW Act 2003”), which prohibits surrender if such order would be incompatible with the State's general obligations, under the ECHR, its protocols, any provision of the Constitution or, specifically, were the person to be surrendered, he or she would be tortured or subject to other inhuman and degrading treatment.
The appellant was sentenced in the U.K. to five years' imprisonment on the 19th August, 2016. The convictions were in relation to harassment and stalking-type offences. A restraining order, issued at the same time, prohibited her from contacting or communicating with a significant number of persons identified in the order, including those involved in the prosecution of the case. Where necessary, this will be referred to as the “2016 conviction”.
The appellant was later released on licence on the 9th October, 2019. By then, she had served more than half her sentence on foot of that 2016 conviction. Her release was subject to licence which stipulated that she not make contact with, or harass, certain persons involved in her 2016 conviction.
But when released in 2019, she breached these conditions, and engaged in harassment of two named prosecution witnesses from the 2016 proceedings. She was then prosecuted for breach of these conditions. Her trial began on the 17th February, 2020. She was present for the first three days, but then absconded before conviction and sentence.
The appellant was sentenced on one count to 9 months' imprisonment, and on the second count to 18 months. The sentences were to run consecutively, amounting to a total of 27 months' imprisonment. However, on the 18th December, 2020, these two sentences were reduced for reasons explained in a detailed judgment delivered by the Court of Appeal of England and Wales, Criminal Division ( [2021] 1 Cr. App. R. 18). The outcome of the appeal was that the sentences were to run concurrently, so that the appellant faced a total sentence of 18 months.
After the appellant absconded, she arrived in this State. She was arrested here on the 17th August, 2020. She was detained in custody for 7 months, and thereafter released on bail. In the relevant warrant, the U.K. authorities requested her return to complete the balance of the custodial sentences imposed upon her in respect of the two breaches of the restraining orders. The operative sentences, therefore, are those pronounced by the Court of Appeal of England and Wales, Criminal Division on 18th December, 2020.
The appellant's objections to extradition were unsuccessful in the High Court ( [2022] IEHC 72). Following that decision, she applied for a certificate for leave to appeal to the Court of Appeal. Under s.16(11) of the EAW Act 2003, such appeals are permitted only when the High Court judge grants leave to appeal. In this case, the judge refused to grant leave for reasons explained by him in an ex tempore judgment delivered on the 8th February, 2022.
The appellant subsequently applied for leave to appeal to this Court. She contended that it was appropriate for this Court to hear an appeal pursuant to the 33rd Amendment to the Constitution, as her case raised issues of “general public importance”. On 23rd February, 2022, this Court (MacMenamin J., Dunne J., Hogan J.) ( [2022] IESCDET 26), concluded that her application for leave to appeal to this Court did raise a single point of general public importance, namely, one as to the legal principles arising from the appellant's contentions as to the potential effect on her fundamental rights of alleged past and future inadequacies in the mental health services provided in the prison system of the requesting state.
This judgment later considers the established legal authorities which arise, both under the Constitution, E.U. law, the Convention, and the neighbouring jurisdiction. In brief, the question is whether the appellant's fundamental rights, as a person, would be placed at serious risk by an order for her surrender.
It has been frequently observed that the court's approach to objections to arrest warrants is particularly fact-sensitive. Seen against that standpoint, the High Court judge's findings of fact, inferences and conclusions on evidence and the material before him, are of great significance. Much, but not all, of the argument in the appeal before this Court centred on an assessment of whether the High Court judge had erred in the weight which he gave to the material adduced in the light of the legal authorities and burden of proof, as set out in the legislation and case law. Of necessity, therefore, this judgment contains a rather extensive assessment of the evidence and material and the judge's conclusions. This Court has had regard to all the evidence, even though the judgment refers to only material passages from that evidence and deals only with those legal authorities which bear on the issues.
Articles 40.3.1 and 40.3.2 of the Constitution, E.U. law, the Charter of Fundamental Rights & Freedoms, and Article 3 ECHR, provide the essential legal framework. The appellant contends surrender would violate s.37(1)(c)(iii) of the European Arrest Warrant Act, 2003, which prohibits surrender if it would be incompatible with this State's duties under the Constitution and Convention.
The constitutional provisions which arise are the fundamental rights protected in Article 40.3 of the Constitution. Under Article 40.3.1, the State guarantees in its laws to respect, and, as far as practicable, by its laws, to defend and vindicate the personal rights of the citizen. By Article 40.3.2, the State guarantees, in particular, by its laws, to protect, as best it may, from unjust attack, and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. In this instance, the appellant, an individual brought before the courts, is entitled to the same level of protection, whether or not she is a citizen of this State. The words “life” and “person” in Article 40.3.2 are emphasised as those protections later arise for consideration.
Article 3 ECHR, in turn, states, in absolute terms: –
“Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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