Minister for Justice & Equality v Harty

JurisdictionIreland
JudgeMs. Justice Caroline Biggs
Judgment Date26 July 2022
Neutral Citation[2022] IEHC 635
CourtHigh Court
Docket Number[2022 No. 75 EXT]
Between
Minister for Justice and Equality
Applicant
and
Keisha Harty
Respondent

[2022] IEHC 635

[2022 No. 75 EXT]

THE HIGH COURT

JUDGMENT of Ms. Justice Caroline Biggs delivered on the 26 th day of July, 2022

1

. By this application, the applicant seeks an order for the surrender of the respondent to the United Kingdom of Britain and Northern Ireland pursuant to a Trade and Cooperation Agreement Warrant dated 19 th of January 2022 (“the TCA warrant”). The TCA warrant was issued by District Judge James Clarke sitting at Liverpool Magistrates Court, as the issuing judicial authority.

2

. The TCA warrant seeks the surrender of the respondent in order to prosecute her in respect of alleged assault and breach of bail-type offences.

3

. The TCA warrant was endorsed by the High Court on the 4 th of April 2022, and the respondent was arrested and brought before the High Court on the 11 th of April 2022 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. 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 precluded for any of the reasons set forth in any of those sections.

6

. Each of the offences in respect of which surrender of the respondent is sought carries a maximum penalty in excess of twelve months' imprisonment, therefore minimum gravity has been established.

7

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

8

. The respondent objected to surrender on the following grounds:

  • • In respect of the offence of wounding with intent to do grievous bodily harm, surrender is prohibited by Section 37 (1) (b) of the European Arrest Warrant Act, 2003, as amended, on the grounds that surrender would be in breach of the respondent's right not to be deprived of her liberty, save in accordance with law as guaranteed by Article 40.4.1 of the Constitution. This is in circumstances where Part H of the warrant has not been completed and the respondent is subject to the possible imposition of a life sentence, but the issuing judicial authority has not provided assurances regarding the entitlement of the respondent to seek clemency, parole or some other form of suspension or non-execution of the sentence after a given period of time.

  • • In respect of the offences of wounding with intent to do grievous bodily harm and of unlawful wounding, surrender is prohibited by Section 11 (1a) (f) of the European Arrest Warrant Act, 2003, as amended on the grounds that insufficient details are set out regarding the circumstances in which the offence is alleged to have been committed, including the time and place of its alleged commission and the alleged degree of involvement of the respondent in the commission of the offence. In particular, the address at which the offences are to have occurred is not set out. Furthermore, it is unclear whether the respondent is alleged to have been part of a common design to commit the offences and whether the unnamed female who is alleged to have punched the victim three times and grabbed her by the hair has been charged with offences arising out of the incident.

  • • In respect of the alleged offence contrary to Section 6(1) of the Bail Act, 1976, surrender is prohibited by Section 11 (1a) (f) of the European Arrest Warrant Act, 2003, as amended on the grounds that insufficient details are set out regarding the circumstances in which the offence is alleged to have been committed, included the time and place of its alleged commission and the alleged degree of involvement of the respondent in the commission of the offence. No such information is set out.

  • • In respect of the alleged offence contrary to Section 6 (1) of the Bail Act, 1976 surrender is prohibited by Section 38 (1) (a) of the European Arrest Warrant Act, 2003 in circumstances where no particulars are set out on the warrant from which the existence of a corresponding offence could be established.

9

. In light of the aforementioned objections, this Court sought additional information and was furnished with same in a letter dated 6 th May 2022. Therein, the issuing judicial authority indicated:

“In respect of point one, although the sentencing guidelines indicate that the offence is punishable by a custodial life sentence, I can confirm that the person if found guilty of this offence will not be sentenced to a whole term life sentence and will be eligible for parole within a period following detention and I would not expect her to serve more than 10 years imprisonment.

In respect of point two, the offence location where this incident occurred is Tudor Road, Birkenhead, Wirral, Merseyside, UK.

In respect of point three, I can confirm that this incident was not premeditated and appears to be a spontaneous incident which resulted out of a drunken argument, the other person named has been charged and dealt with by the courts and is not serving a custodial sentence for their part.

In respect of point four, I can confirm that whilst celebrating a New Year's Eve party, an argument started between Harty and the victim and as a result it is alleged that Harty used a wine glass to cause significant injuries to the victim's face. This incident occurred on 01.01.2020 and the suspect has since been identified from an ID parade and charged with the offence, Harty has failed to attend any court procedures.”

10

. Additional information was also received from the Crown Prosecution Service dated 6 th May 2022, in the following terms:

“1. 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 Parole Board 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 Board 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 Board 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, and the offender returned to prison 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 exceptional or compassionate release under section 30 of the Crime (Sentences) Act 1997 and/or for release under the powers of the Royal Prerogative of Mercy.”

2. The offence occurred at 2A Tudor Road, Birkenhead, Wirral, Merseyside.

3. Keisha Harty is not alleged to have committed the offence as part of a joint enterprise with another. The unnamed female referred to in part (e) of the Warrant who is alleged to have punched the victim three times and grabbed her by the hair was charged with an offence of common assault upon the victim. This offence carries a maximum of 6 months imprisonment. This offence was listed for a separate trial in the Magistrates Court on 9 th August 2021. The victim did not attend court to give evidence on this date and the prosecution offered no evidence.”

It is conceded by the respondent that as a consequence of this information, objections 1 and 2 are no longer being relied upon, and are therefore, dismissed.

Is surrender prohibited by Section 21A of the Act of 2003?
11

. It is clear, that a decision has been made to charge the respondent. The respondent suggested that the additional information referred to above raises a question as to whether the decision to try the respondent for the offence, still subsists, as the victim has made it known to the authorities that she did not wish to give evidence in respect of the second accused. The respondent submits that it is possible that the trial of the respondent may not be viable. As a result of this submission, which was not raised in the grounds of objection, this Court asked the issuing judicial authority a number of questions in relation to the prosecution. The issuing judicial authority has confirmed definitively that the prosecution is still viable.

12

. Section 21A (2) of the 2003 Act states:

“Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for that offence in the issuing state unless the contrary is proved.” (Emphasis added)

13

. In the present case, at the beginning of the TCA warrant, the following is clearly stated:

“This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for...

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