Minister for Justice v McLaughlin

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Patrick McGrath
• Judgment Date: 14 June 2024
• Neutral Citation: [2024] IEHC 514
• Docket Number: Record No 2024 EXT 23

Between

Minister for Justice

Applicant

and

Stephen Andrew Mc Laughlin [TCAW#1]

Respondent

Between

Minister for Justice

and

Stephen Andrew Mc Laughlin [TCAW#2]

[2024] IEHC 514

Record No 2024 EXT 23

Record No 2024 EXT 48

THE HIGH COURT

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 14 ^th of June 2024

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

TCAW#1 & Record No. 2024 EXT 23

2 The first TCAW was issued by District Judge George Conner, a District Judge sitting at Belfast Magistrates Court, on the 12 ^th of January 2024. This TCAW is an accusation warrant and seeks the surrender of the respondent for prosecution in relation to seven offences allegedly arising from one incident being:-

• — One offence of Attempted Murder contrary to Article 3(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law

• — One offence of Threat to Kill contrary to Section 16 of the Offences Against the Person Act, 1861

• — Two offences of Assault contrary to common law and Section 47 of the Offences Against the Person Act, 1861

• — One offence of Criminal Damage contrary to the Article 3(1) of the Criminal Damage (Northern Ireland) Order 1977, and;

• — Two offences of Dangerous Driving contrary to Article 10 of the Road Traffic (Northern Ireland) Order 1995

3 TCAW#1 was endorsed by the High Court on the 1 ^st of February 2024. The Respondent was arrested and produced to the High Court on the 2 ^nd of February 2024. The Respondent, having been refused bail, has been remanded in custody on this matter since the date of his arrest.

4 I am satisfied that the person before the court, the respondent, is the person in respect of whom TCAW#1 was issued.

5 I am satisfied that none of the matters referred to in section 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 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met.

7 No issue has been raised in relation to correspondence on the offences set out in this Warrant. It is clear, from a reading of the TCAW and particularly paragraph (e) thereof that correspondence is established with the following offences in Irish law:-

• a. Attempted Murder contrary to Common Law

• b. Threats to Kill contrary to section 5 of the Non-Fatal Offences Against the Person Act, 1997

• c. Assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997

• d. Criminal Damage contrary to section 2 of the Criminal Damage Act, 1991; and

• e. Dangerous Driving contrary to section 53 of the Road Traffic Act, 1961

8 The Respondent delivered points of objection dated the 14 ^th of February 2024 but only pursued the following grounds at the hearing of this action:

• — Surrender is prohibited by s21A of the 2003 Act as no decision has been made by the authorities in the issuing state to put him on trial for the offences set out in the warrant at the time the TCAW was issued;

• — If the respondent were to be convicted of these offences in the issuing state there is a real risk he would receive a sentence incorporating an element of preventative detention in breach of his rights under Article 38.1, 40.3.1 and 40.4.1 of the Constitution, Articles 5 and 8 of the European Convention on Human Rights and / or Articles 6 and 7 of the Charter of Fundamental Rights. In the circumstances it is said his surrender is prohibited under s37 of the 2003 Act;

• — Surrender of the Respondent would constitute a disproportionate interference with his right to respect for his family and private life under Articles 40.3.1 and 41 of the Constitution, Article 8 of the European Convention on Human Rights [‘the Convention’], Article 7 of the Charter of Fundamental Rights, such that his surrender is prohibited under s37 of the 2003 Act;

TCAW #2 & Record No. 2024 EXT 48

9 The second TCAW (TCAW#2) was issued by District Judge Christopher Williams, a District Judge sitting at Southend Magistrates Court, on the 14 ^th of February 2024. This TCAW is a conviction warrant and seeks the surrender of the respondent in order to serve the remaining part of a sentence of 7 years and 121 days imposed upon him in 2016, of which a period of 341 days remains to be served. This sentence was imposed at Basildon Crown Court on the 16 ^th of June 2016 and the Respondent was released on licence in Northern Ireland on the 15 ^th of February 2018. On the 23 ^rd of September 2018 he was recalled to prison as he had allegedly committed further offences, failed to attend probation appointments and displayed poor behaviour. The Respondent has been at large since the issue of this recall and the licence is due to expire on the 17 ^th of January 2025.

10 TCAW#2 was endorsed by the High Court on the 27 ^th of February 2024. The Respondent was arrested on that date and, having been refused bail, he has been remanded in custody on this warrant thereafter.

11 I am satisfied that the person before the court, the respondent, is the person in respect of whom TCAW#2 was issued.

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

13 I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment.

14 The Respondent delivered points of objection dated the 14 ^th of February 2024 but only pursued the following grounds at the hearing of this action:

• (i) Correspondence is not established and therefore surrender is prohibited under s38 of the 2003 Act;

• (ii) The offence to which the sentence in the UK relates appears to have, at least in part, been committed in a place other than the issuing state and surrender is prohibited under s44 of the 2003 Act;

• (iii) Surrender of the Respondent would constitute a disproportionate interference with his right to respect for his family and private life under Articles 40.3.1 and 41 of the Constitution, Article 8 of the European Convention on Human Rights, Article 7 of the Charter of Fundamental Rights, such that his surrender is prohibited under s37 of the 2003 Act;

• (iv) If surrendered the Respondent will not be guaranteed credit for the time he has spent in custody pending the determination of these proceedings, credit to which he is entitled under the Trade and Co-Operation Agreement;

• (v) There is a lack of clarity in the TCAW and there is suggestion therein that he is being sought for the purposes, not only of serving a sentence, but also of prosecution.

Ground common to both TCAWs

15 The Respondent argues that his surrender to the United Kingdom in relation to this request and these warrants would constitute a disproportionate interference with his family and / or private life and ought therefore to be refused under s37 of the 2003 Act.

16 The family and private life considerations the Respondent relies upon are set out at paragraphs 6 to 14 of his affidavit, sworn on the 19 ^th of April 2024. The Respondent therein states that he was born in Carndonagh, County Donegal and lived there with his family until the age of 16 when he moved to the United Kingdom where he worked for some time in the construction industry. He then relocated to Northern Ireland where he formed a relationship with Anne Marie Harkin and lived with her for over 20 years, during which time they had four children now aged 17 to 11. They lived in Limavady, County Derry and he continued to live in or around Derry after they separated. The Respondent returned to Donegal in October 2022 and went to live with his aging parents in the family home. Before his arrest he says he spent a lot of time looking after his mother who has health issues, and he also has a large number of family members still living in the Carndonagh area. He has done some occasional work whilst living in Donegal.

17 It is well settled that member states (including the United Kingdom under the EU – UK Trade and Co-Operation Agreement) should execute any warrant on the basis of mutual recognition and that it is only in a truly exceptional case that Article 8 rights outweigh the requirement to surrender.

18 In Minister for Justice v Ostrowski [2012] IESC 57 the Supreme Court made it clear that to be successful in cases such as the present, a family/ private rights objection to surrender must cross a high threshold to even engage Article 8 of the Convention. Again in Minister for Justice v Verstaras [2020] IESC 12, that Court said that, when considering such objections to surrender, there must be cogent evidence to rebut the presumption in s4A of the Act, the circumstances must be shown to be well outside the norm, that is truly exceptional and, in the words of S37 of the 2003 Act they must be such as to render surrender incompatible with the States obligations under A8(2) of Convention.

19 There is nothing on the facts of this case which comes close to something ‘truly exceptional’ such as engage the possibility that surrender would be incompatible with the States obligations under the Convention and would require this court to carry out a proportionality test. The facts relied upon by Mr McLoughlin as constituting an interference with his Article 8 family and privacy rights, are not in any way exceptional or outside the norm of cases where the surrender of a person is sought for either prosecution or the serving of a custodial sentence. This ground...