Minister for Justice & Equality v Walsh

JurisdictionIreland
JudgeMs. Justice Caroline Biggs
Judgment Date24 October 2022
Neutral Citation[2022] IEHC 633
CourtHigh Court
Docket Number[2021 No. 330 EXT.]
Between
Minister for Justice and Equality
Applicant
and
Seán Walsh
Respondent

[2022] IEHC 633

[2021 No. 330 EXT.]

THE HIGH COURT

JUDGMENT of Ms. Justice Caroline Biggs delivered on the 24 th day of October, 2022

1

. By this application, the applicant seeks an order for the surrender of the respondent to the Kingdom of Great Britain and Northern Ireland pursuant to a Trade and Cooperation Agreement warrant dated the 26 th of November 2021 (“the TCA warrant”). The TCA warrant was issued by George Connor, District Judge sitting at Laganside Court, Belfast, as the issuing judicial authority.

2

. The TCA warrant seeks the surrender of the respondent in order to prosecute him in respect of alleged terrorist-type offences.

3

. The TCA warrant was endorsed by the High Court on the 7 th of December 2021 and the respondent was arrested and brought before the High Court on the 8 th of December 2021, on foot of same.

4

. I am satisfied that the person before the Court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.

5

. I am satisfied that none of the matters referred to in ss. 21A, s 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application, and surrender of the respondent is not prohibited for any of the reasons set forth in any of those sections.

6

. I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. Each of the offences in respect of which surrender of the respondent is sought carries a maximum penalty in excess of twelve months' imprisonment.

7

. At part E., the warrant sets out the circumstances of the alleged offences and the nature and legal classification of same. The TCA warrant states:

“1. That [Seán Walsh], between the 18 th day of July 2020 and the 21 st day of July 2020, belonged to a proscribed organisation, namely the Irish Republican Army, contrary to Section 11(1) of the Terrorism Act 2000.

2. That he, between the 18 th day of July 2020 and the 21 st day of July 2020, directed the activities of an organisation which was concerned in the commission of acts of terrorism, contrary to section 56(1) of the Terrorism Act 2000.

3. That he, on the 19 th day of July 2020, conspired with others to direct the activities of an organisation, namely the Irish Republican Army, which was concerned in the commission of acts of terrorism, contrary to Article 9(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and section 56(1) of the Terrorism Act 2000.

4. That he, on the 19th day of July 2020, with the intention of committing acts of terrorism or assisting another to commit such acts, engaged in conduct in preparation for giving effect to his intention, namely attended a meeting of the Executive of the Irish Republican Army at 17 Buninver Road, Gortin, contrary to section 5(1) of the Terrorism Act 2006.”

8

. I am satisfied that correspondence can be established between the offences referred to in the TCA warrant and offences under the law of this State, viz.:

  • (i) The corresponding offence for Section 11 (1) of the Terrorism Act 2000 is Section 21 of the Offences Against the State Act 1939 as amended.

  • (ii) The corresponding offence for Section 56 (1) of the Terrorism Act 2000 is Section 71 (a) of the Criminal Justice Act 2006

  • (iii) The corresponding offence for Section 9 (1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Section 56 (1) of the Terrorism Act 2000 is Section 71 of the Criminal Justice Act 2006

  • (iv) The corresponding offences for Section 5 (1) of the Terrorism Act 2006 are Section 71 of the Criminal Justice Act 2006 Section 21 a of the Offences Against the State 1939 or Section 6 (1) (a) (i) of the Criminal Justice Terrorist Offences Act 2005.

9

. As surrender is sought to prosecute the respondent, no issue arises under Section 45 of the Act of 2003.

10

. Part H of the warrant states:

“The offence(s) on the basis of which this warrant has been issued is (are) punishable by/has(have) led to a custodial life sentence or lifetime detention order:

Offence 2. That he, between the 18 th day of July 2020 and the 21 st day of July 2020, directed the activities of an organisation which was concerned in the commission of acts of terrorism, contrary to section 56(1) of the Terrorism Act 2000.

Offence 3. That he, on the 19th day of July 2020, conspired with others to direct the activities of an organisation, namely the Irish Republican Army, which was concerned in the commission of acts of terrorism, contrary to Article 9(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and section 56(1) of the Terrorism Act 2000.

Offence 4. That he, on the 19th day of July 2020, with the intention of committing acts of terrorism or assisting another to commit such acts, engaged in conduct in preparation for giving effect to his intention, namely attended a meeting of the Executive of the Irish Republican Army at 17 Buninver Road, Gortin, contrary to section 5(1) of the Terrorism Act 2006.

[T]he issuing State will upon request by the executing State give an assurance that it will:

Where a life sentence (whether mandatory or discretionary) is imposed the sentencing judge determines what part of the sentence must be served in prison before the offender may be considered for release on licence: That period is referred to as the minimum term.

Every person sentenced on indictment has the right to ask for a review of that minimum term by the Court of Appeal.

The offender has to serve the appropriate minimum term that reflects the punitive element of the sentence. Once this punitive term of imprisonment has expired the offender enters into the risk element of the sentence. He may only be detained if he continues to present a risk to the public.

An independent panel of Parole Commissioners in Northern Ireland conducts a review of the prisoner's sentence once the punitive element of the sentence has expired. A judge chairs this panel. An oral hearing can take place to determine whether the prisoner's detention should continue. The Parole Commissioners for Northern Ireland must decide whether it is necessary for the protection of the public for the prisoner's detention to continue. At this hearing the prisoner has the right to be present, to be legally represented and to call and question witnesses.

The Parole Commissioners for Northern Ireland can direct the release of the prisoner. If it decides that the prisoner should not be released then a further hearing will take place within 2 years to review the prisoner's detention and at regular intervals thereafter.

All life sentence prisoners are released under a Licence that remains in force for the rest of their lives. The life licence can be revoked at any time if necessary on public protection grounds.

In every case, including cases where a whole life term or a minimum term exceeding twenty years has been imposed, the prisoner may apply for compassionate release under section 7 of the Life Sentences (Northern Ireland) Order 2001 and/or for release under the powers of the Royal Prerogative of Mercy:

Review the penalty or measure imposed — on request or at least after 20 years, and/or

Encourage the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing State, aiming at a non-execution of such penalty or measure.”

11

  • I. The respondent faces a real risk of being subjected to covert surveillance of his legal consultations and phone calls while detained at Roe House in Maghaberry Prison, giving rise to an egregious breach of Articles 38.1 and 40.3.1 of the Constitution, Articles 6 and 8 of the European Convention of Human Rights and his corresponding rights under the EU Charter of Fundamental Rights.

  • II. Under legislation now in force in the requesting state, persons convicted of terrorism offences are not permitted release under licence at the half-way point of their sentence, as is the case with all other offenders. This law applies retrospectively, so that the respondent now faces a longer term of imprisonment than he was liable to serve at the time of his alleged offences. This legislation has been found by the Northern Ireland Court of Appeal to be incompatible with Article 7 ECHR, but it nevertheless remains in force. In the circumstances, the surrender of the respondent would give rise to egregious breaches of his rights under Article 38.1 of the Constitution, under Articles 7 ECHR and under Article 49 of the EU Charter.

Ground I
Affidavit of Sean Devine
12

. The submissions relating to this ground were by and large based on the Affidavit of a Mr. Sean Devine Barrister who was asked by the solicitors for the respondent to comment on the surveillance of professional consultations, namely, Solicitor-Barrister consultations in Maghaberry Prison being subject to covert surveillance by the Prison Service, the PSNI and/or the British Security Services. For the purposes of setting out the respondent's case, this Court will set out the relevant extracts from this Affidavit.

13

. Mr. Devine swore an affidavit dated 1 st March 2022 wherein he averred to the following:

  • • He states that this issue is of particular resonance at the present time, flowing from two cases in which he has personal involvement.

  • • He states that the prison authorities have been providing information about legal consultations to the PSNI. This came to light in the course of an ongoing criminal case and an ongoing extradition case whereby:

    • (i) [T]he prosecution sought to rely upon details about the defendant's confidential legal consultations in order to deny him bail (HMP Maghaberry); and

    • (ii) [T]hose representing the requesting state, again in the context of bail, were able to...

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