Minister for Justice v McAuley

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Patrick McGrath
• Judgment Date: 17 January 2025
• Neutral Citation: [2025] IEHC 28
• Docket Number: Record No 2024 EXT 179

Between

Minister for Justice

Applicant

and

Martin John McAuley

Respondent

[2025] IEHC 28

Record No 2024 EXT 179

THE HIGH COURT

Application for order to surrender - European Arrest Warrant - Breach of Article 8 rights

Facts: In this application the Minister sought an order for surrender of the respondent to Northern Ireland in accordance with the Trade and Co-operation Agreement warrant (TCAW). The warrent was issued by a 'judicial authority' in the meaning of s.10 of the European Arrest Warrant Act 2003. The Judge was satisfied that the offences alleged corresponded with the offences of; "(i) Murder contrary to common law as provided by Section 4 of the Criminal Justice Act 1964; (ii) Capital Murder, being the offence of murder of a member of An Garda Siochana in the course of his/her duty, contrary to Section 3 (1)(a) of the Criminal Justice Act 1990.

The Respondent submitted a Notice of Objection objecting to the surrender on the following grounds; (i) he did not consent to surrender and awaits investigation and proof necesssary to satisfy an application for surrender pusuant to section 16(1) of the 2003 Act; (ii) the purported announcement of Section 4A of the 2003 Act by way of secondary legislation in Regulations 5 of the European Union Regulations 2021 was ultra vires to the powers of the Minister and had no legal effect in these circumstances; (iii) he was still awaiting proof that the surrender was not statute barred, in circumstances where s.42 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 means a prosecution must have commenced prior to the 1 May 2024; (iv) the surrender under s.37 of the 2003 Act was incompatible with his rights under the Constitution and the European Convention on Human Rights. The Respondent further submitted that his surrender would be unjust and disprportionate as; (i) there was not guarentee of bail; (ii) the surrender may be to make sure the appellant is available for onward extradition to Colombia; (iv) this would interference with his family life.

The Applicant replied that the Respondents argument is misconceived. The Minister submits that a stay on these proceedings as an abuse of process on the following grounds; (i) the delay resulted in prejudice and this could affect the prospect of a fair trial; (ii) it would be unconscionable for the requesting state to pursue the Respondent on information it had held for many years; (iii) there is insufficient disclosure or failures of disclosures on the part of the State.

The Court held that the prominent question is this case one of an exceptional cases where there was exceptional circumstances had arose in the time since the alleged offences and therefore Article 8 of the Convention is engaged, and would it be disproportionate to order surrender? The Court further held that the disruption did not reach the threshold to engage Article 8 of the Conevntion. The Judge dismisssed all the grounds of objection, and held that the Warrant is in order and satisfies the requirement on the 2003 Act. Judge made an order for the Respondents surrender to the issues state.

Order made

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 17 January 2025

1. BACKGROUND

1.1 . In this application, the Minister seeks an order for the surrender of the respondent to Northern Ireland on foot of one Trade and Co-Operation Agreement warrant (‘TCAW’).

1.2 . This warrant was issued on the 26 July 2024 by District Judge George Connor at Laganside Magistrates Court, Belfast and seeks the surrender of the Respondent for prosecution in relation to three offences of Murder. The TCAW was endorsed by this Court on the 21 August 2024. The Respondent was arrested on that date and produced to this Court on the 22 August 2024 and was thereafter remanded on bail pending the outcome of these proceedings.

1.3 . The warrant was issued by a ‘judicial authority’ in the issuing state within the meaning of s. 10 of the European Arrest Warrant Act, 2003 (as amended) [‘the 2003 Act’].

1.4 . Sufficient information is set out in the Warrant to provide the necessary details required under Section 11A of the 2003 Act.

1.5 . The person before the court, the respondent, is the person in respect of whom this TCAW was issued. No issue is in any event taken in relation to identity.

1.6 . The minimum gravity requirement under the European Arrest Warrant Act 2003 (as amended) [‘the 2003 Act’] is met.

1.7 . None of the matters referred to in sections 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 therein.

2. CORRESPONDENCE

2.1 . The circumstances of the offences for which surrender is sought are set out in part (e) of the Warrant.

2.2 . At approximately 14.20hrs on the 27 October 1982, three RUC officers, namely Sergeant Sean Quinn, Constable Paul Hamilton and Constable Allan McCloy, were killed in a bomb attack at Kinnego Embankment close to Lurgan, County Armagh. The officers had been travelling in a car and a bomb, which had been placed in a culvert under the road, was remotely detonated from a raised embankment overlooking the road. The IRA subsequently claimed responsibility for the attack.

2.3 . It is alleged that the bomb was detonated by two members of the IRA, Eugene Toman and John Burns, who are both since deceased, having been shot by RUC officers on the 11 November 1982. DNA profiles were recovered from multiple items at the detonation site. Profiles found on eight smoked cigarettes recovered therefrom matched the DNA of the Respondent. In addition, two of the eight smoked cigarettes contained DNA that could be from the Respondent and the deceased Eugene Toman and, in the opinion of a forensic scientist, the mixture of the profiles found thereon is consistent with both Eugene Toman and the Respondent sharing these cigarettes.

2.4 . It is said that the presence of Mr McAuley's DNA on the smoked cigarettes links him to the detonation site and to Eugene Toman and that the evidence overall provides certain proof that the Respondent was involved in the bomb attack.

2.5 . It is not in dispute that this is a case where it is necessary to establish correspondence in accordance with ss 5 and 38(A) of the 2003 Act.

2.6 . 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’.

2.7 . The relevant principles for showing correspondence in this jurisdiction 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.

2.8 . An inquiry into correspondence must be distinguished from the question of the strength of the case. At paragraphs 19 – 20 of her judgment in Minister for Justice v Stafford [2009] IESC 83, Denham J stated:-

‘The question which arises for determination is whether the acts alleged on the warrant show a link with the requested person. It is not necessary to show a prima facie case. It is not necessary to show a ‘strong case’. The issue of innocence is for the jury in the requesting state…there is no reason why an accusation of a crime based on circumstantial evidence could not be the basis for a European arrest warrant’

2.9 . I am satisfied that the offences alleged correspond with the following offences under Irish Law:-

• (i) Murder contrary to common law as provided by Section 4 of the Criminal Justice Act, 1964; and

• (ii) Capital Murder, being the offence of murder of a member of An Garda Siochana in the course of his / her duty, contrary to Section 3(1)(a) of the Criminal Justice Act, 1990

3. GROUNDS OF OBJECTION

3.1 . In his Notice of Objection, the Respondent objected to surrender on the following grounds:-

• (a) He does not consent to surrender and awaits inquiry and proof of all matters necessary to ground an application for his surrender to the issuing state pursuant to section 16(1) of the 2003 Act;

• (b) The purported promulgation of Section 4A of the 2003 Act by way of secondary legislation in Regulation 5 of the European Union (European Arrest Warrant) (Amendment) Regulations 2021 was ultra vires the powers of the Minister for Justice and of no lawful effect, in circumstances where no such presumption is contained in the Trade and Co-Operation Agreement or is required as a matter of Union Law in respect of a surrender procedure between the Union and the United Kingdom;

• (c) The Respondent awaits proof that this surrender is not statute barred, in circumstances where s. 42 of the Northern Ireland Troubles (Legacy and Reconciliation) Act, 2023 provides that such a prosecution must have commenced prior to the 1 May 2024

• (d) The Respondent objects to surrender under s. 37 of the 2003 Act for incompatibility with his personal rights under Articles 40.3.1 and 41 of the Constitution, Articles 6 and 8 of the European Convention on Human Rights and the Charter of Fundamental Rights of the Union on the basis that:

  • — Surrender would be unjust and disproportionate on the basis that there is a substantial risk he would spend significantly longer time on remand awaiting trial than he would be liable to serve if convicted of these offences;

  • — Relying on the egregious conduct directed against him by State agents within the requesting State (including the same police as involved in the present prosecution), as set out in R v Martin McAuley 2014 NICA 60, and his...