Minister for Justice v Keating

• Jurisdiction: Ireland
• Judge: Mr. Justice Patrick McGrath
• Judgment Date: 15 July 2024
• Neutral Citation: [2024] IEHC 515
• Court: High Court
• Docket Number: Record No 2023 EXT 130

Between

Minister for Justice

Applicant

and

Peter Anthony Keating

Respondent

[2024] IEHC 515

Record No 2023 EXT 130

THE HIGH COURT

JUDGMENT ofMr. Justice Patrick McGrathdelivered on the 15th day of July 2024

1 In this application, the applicant seeks an order for the surrender of the respondent to the United Kingdom on one Trade and Co-Operation Agreement warrant (‘TCAW’).

2 This warrant was endorsed by the High Court on the 17 August 2023. The Respondent was arrested on the 14 ^th of September 2023 and produced to the High Court on that date. He has been remanded in custody on this matter since that date.

3 I am satisfied that the person before the court, the respondent, is the person in respect of whom this TCAW was issued. No issue is taken in relation to identity.

4 The minimum gravity requirement under the European Arrest Warrant Act 2003 (as amended) [‘the 2003 Act’] is met as the maximum sentence in respect of these alleged offences range from 5 to 10 years imprisonment.

5 I am satisfied that none of the matters referred to in sections 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the 2003 Act”), 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 The TCAW was issued by District Judge John Zani at the City of Westminster Magistrates Court on the 24 ^th of November 2022, an issuing judicial authority within the meaning of the 2003 Act and the Trade and Co-Operation Agreement.

7 At Part B of the warrant, it is stated that a warrant of arrest was issued on the 16 ^th of August 2022 at Westminster Magistrates Court for nine offences: 2 offences of Conspiracy to Possess a firearm, 2 offences of Conspiracy to Possess Ammunition, 2 offences of Conspiracy to Possess a Prohibited Weapon, 2 offences of Conspiracy to Possess Prohibited Ammunition and 1 offence of Conspiracy to Pervert the course of Justice. The Respondent is sought for prosecution for these offences.

8 The Respondent delivered points of objection on the 9 ^th of November 2023. At the section 16 hearing, the Respondent pursued the following objections:-

• (i) His proposed temporary surrender to the United Kingdom, in the course of his serving a sentence of imprisonment in this Jurisdiction, creates significant uncertainty in respect of a constitutional right not to be deprived of one's liberty ‘other than in accordance with law. His proposed surrender would therefore amount to a violation of his right to liberty under Article 40.4 of the Constitution;

• (ii) The Applicant has not demonstrated correspondence between the offences alleged in the United Kingdom and offences in this jurisdiction;

• (iii) The alleged offences were committed outside the territory of the Requesting State. Surrender must be refused as the laws of this State do not allow for the prosecution of offences committed in similar circumstances; and

• (iv) If surrendered the Respondent will be exposed to prison conditions and a regime of pre-trial detention that will violate his rights under the Constitution, including his right to physical and mental integrity and his right not to put at risk of inhuman and degrading treatment such that his surrender would be in breach of section 3 of the European Convention on Human Rights Act, 2003 and Articles 3 and 8 of the European Convention on Human Rights.

Breach of Article 40.4 of Constitution

9 The Respondent was sentenced by the Special Criminal Court in this State on the 2 ^nd of September 2021 to a sentence of 12 years imprisonment, with the final year suspended and backdated to 1 ^st of July 2020. His scheduled release date is sometime in 2028. The Respondent submits that this extradition request exposes his Irish sentence to a significant level of legal and factual uncertainty. He makes this submission in circumstances where he states no clarification has been provided to the effect that his surrender on foot of this TCAW would have in relation to his current sentence.

10 The Respondent further submits that this uncertainty gives rise to significant legal and factual unknowns in the Respondents knowledge in relation to his deprivation of liberty, in particular its factual and legal basis. Referring to A v Governor of Arbour Hill Prison[2006] IESC 45 and Minister for Justice v Tobin[2012] IESC 37, the Respondent submits that legal certainty in sentencing matters is an established principle in this jurisdiction and the uncertainty in his case, were he to be surrendered on foot of this TCAW, violates his constitutional right to liberty under Article 40.4 of the Constitution particularly in light of his right not be deprived of liberty ‘otherwise than in accordance with law’.

11 The Applicant does not dispute the essential constitutional requirement of certainty in the deprivation of liberty. She however disputes that the current request by the United Kingdom for his temporary surrender on foot of this TCAW gives rise to any uncertainty in this regard.

12 The Minister submits that the question of temporary surrender only arises in the event that an order for surrender is made and cannot give rise to an argument against surrender. Contrary to the submission made by the Respondent, the Applicant says that this TCAW and s19 of the 2003 Act (giving effect to Article 622 of the Trade and Co-Operation Agreement), provide a framework of certainty which is to his advantage. Section 19 of the 2003 Act provides:-

‘(1) Where a person to whom an order under section 15 or 16 applies has been sentenced to a term of imprisonment for an offence and is, at the time of the making of the order, required to serve all or part of that term of imprisonment in the State, the High Court may, subject to such conditions as it shall specify, direct that the person be surrendered to the issuing state for the purpose of his or her being tried for the offence to which the relevant offence warrant concerned relates.

(2) Where a person is surrendered to the issuing state under this section, then any term of imprisonment or part of a term of imprisonment that the person is required to serve in the State shall be reduced by an amount equal to any period of time spent by that person in custody or detention in the issuing state consequent upon his being surrendered, or pending trial’

13 Firstly, I agree that it is premature to consider these matters until an order is made under Section 16 of the 2003 Act and an application is thereafter made for the Respondents temporary surrender. The time at which to consider this issue is when such an application is made and the issues raised by the Respondent in this regard are not relevant to the question now before the Court of whether or not to make an order for surrender under S16 of the Act.

14 The matter of temporary surrender and the provision of undertakings was considered by Edwards J in Minister for Justice v Gordon[2013] IEHC 515 and he commented as follows:-

‘Further, the issuing judicial authority has indicated that if it receives a request for the necessary undertakings from this Court to facilitate the temporary surrender of the respondent in this case it will provide those undertakings.

In the circumstances, the Court is disposed in principle to make an order for the conditional surrender of Mr. Gordon to enable him to face trial in Northern Ireland for the offences to which the European arrest warrant relates. The section 19 order will not, however, be made until the undertakings that this court is disposed to request from the issuing state have been received in writing from the issuing state’

15 The issuing judicial authority has here indicated in Paragraph F of the TCAW that a request for temporary surrender will be made in the event that an order for surrender is made under s.16 of the Act. Upon receipt of such a request, this court will consider whether to surrender the respondent temporarily and what, if any, conditions, or undertakings must be provided by the issuing Judicial Authority. The Respondent will be able to make any arguments he deems appropriate in response to any such application for temporary surrender and the Court will of course be entitled to refuse allow temporary surrender if not satisfied with the undertakings provided, should the same have been requested.

16 In addition, although this matter is more properly to be resolved at any s19 hearing, it would appear that a great degree of certainty would likely flow from the making of a s16 order followed by a s19 temporary surrender.

17 This ground of objection is therefore dismissed.

Correspondence

18 The Respondent submits that the offences set out in the TCAW do not correspond to offences under the laws of this State.

19 The TCAW is a Warrant issued in accordance with Article LAW.SURR.112 of the Trade and Co-Operation Agreement. It is therefore necessary to demonstrate correspondence in accordance with s38 of the 2003 Act.

20 Section 5 of the 2003 Act provides:-

‘For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the law of the state, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State’.

21 The relevant principles for showing correspondence are now well established. In assessing correspondence, the question is whether the acts or omissions that constitute the offence in the requesting state would, if carried out in this jurisdiction, amount to a criminal offence – Minister for Justice v Dolny[2009] IESC 48

22 I am satisfied that the acts or omissions that constitute offences 1,2,6 and 7 as set out in the TCAW correspond with the offence of conspiracy to possess a firearm contrary...