Minister for Justice v Donegan

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Patrick McGrath
• Judgment Date: 31 January 2025
• Neutral Citation: [2025] IEHC 53
• Docket Number: Record No 2024 EXT 106

Between

Minister for Justice

Applicant

and

James Donegan

Respondent

[2025] IEHC 53

Record No 2024 EXT 106

THE HIGH COURT

Trade and co-operation agreement warrant – Surrender – Abuse of process – Applicant seeking an order for the surrender of the respondent to Northern Ireland on foot of one Trade and co-operation agreement warrant – Whether the surrender of the respondent would amount to an abuse of process

Facts: The applicant, the Minister for Justice, applied to the High Court seeking an order for the surrender of the respondent, Mr Donegan, to Northern Ireland on foot of one Trade and co-operation agreement warrant (TCAW) issued on 26 April 2024 by District Judge Connor at Laganside Magistrates Court, Belfast. The TCAW sought the respondent’s surrender for prosecution in relation to three offences: (i) the murder, on a date between 22 June 1979 and 25 June 1979, of a Mr Porter contrary to common law; (ii) the possession, within the same dates, of a firearm and ammunition with intent to endanger life or cause serious injury to property contrary to s. 14 of the Firearms Act (Northern Ireland) 1969; and (iii) the membership, within the same dates, of a proscribed organisation, namely the Irish Republican Army, contrary to s. 21(1)(a) of the Northern Ireland (Emergency Provisions) Act 1978. In the statement of points of objection, filed on 15 August 2024, the respondent objected to surrender on the following grounds: (a) at grounds 3 to 6 it was pleaded that correspondence was not made out between the offences alleged in the TCAW and offences in the State; (b) grounds 7, 14 and 15 were no longer being pursued; and (c) at grounds 8 to 13 and 16 to 17 it was claimed that the surrender of the respondent would, for the reasons specified therein, amount to an abuse of process.

Held by McGrath J that the requirements of both s. 38(1A) and s. 5 of the 2003 Act were met and correspondence established in relation to each of the three offences set out in the TCAW. He was satisfied that the details set out in the TCAW, together with the additional information in reply to the s. 20 request, provided the necessary details required under s. 11A of the 2003 Act. He noted that the respondent was sought to stand trial for the most serious offences on foot of a TCAW lawfully issued by the requesting state; this was the first surrender request from the issuing state seeking his surrender for prosecution. McGrath J noted that there had been an explanation for the circumstances in which, many years after those offences, the respondent came to be nominated as a suspect, the Gardai and DPP in Ireland’s jurisdiction investigated and considered the matter, the PSNI thereafter conducted further examinations and finally a TCAW was issued. McGrath J found that there was no evidence of any mala fides or improper motive on the part of the issuing state in seeking the surrender of the respondent; there was no evidence to suggest that he would not obtain a fair trial if surrendered. Having considered and rejected each of the individual complaints made, which were said to amount alone or cumulatively to an abuse of process, McGrath J concluded that looking at them collectively, this was not a case where there were grounds for the Court to exercise that exceptional jurisdiction. He held that the application for surrender was not unconscionable or oppressive.

McGrath J rejected the grounds of objection made by the respondent and proposed making an order for his surrender pursuant to s. 16 of the 2003 Act.

Application granted.

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 31 January 2025

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

2 This warrant was issued on the 26 April 2024 by District Judge George Connor at Laganside Magistrates Court, Belfast and seeks the surrender of the Respondent for prosecution in relation to the following three offences:

• i. The Murder, on a date unknown between the 22 June 1979 and the 25 June 1979, of Joseph James Porter contrary to Common Law

• ii. The possession, within the same dates, of a firearm and ammunition with intent to endanger life or cause serious injury to property contrary to Section 14 of the Firearms Act (Northern Ireland) 1969.

• iii. The membership, within the same dates, of a Proscribed Organisation, namely the Irish Republican Army, contrary to section 21(1)(a) of the Northern Ireland (Emergency Provisions) Act, 1978.

3 At approximately 9.30am on 24 June 1979, Joseph James Porter's body was found close to the entrance of his farm at 8 Creggan Road, Mountmorris, County Armagh. The postmortem concluded he had died as a result of gunshot wounds to the head and trunk. His home had been ransacked but there was no evidence of forced entry. Four fingerprints were taken from inside Mr Porters home. A right thumb print on a bedroom door has been found to match a fingerprint of the Respondent, which had been taken from him by the RUC in 1977.

4 A Section 20 request was sent to the issuing judicial authority and a reply received thereto on the 15 May 2024. Given the antiquity of the case and the issues raised by the Respondent in objection to surrender, there is set out hereafter a chronology of the most relevant dates following the murder of Mr Porter:-

• (i) During 2012 the PSNI Historical Enquiries Team reviewed the investigation into this murder. The thumbprint which had been found on the bedroom door was then subjected to the PSNI automatic fingerprint system and found to match the fingerprints taken from the Respondent in 1977. This new evidence linked Mr Donegan to the murder of Mr Porter;

• (ii) As Mr Donegan was then resident in this jurisdiction, the PSNI asked An Garda Siochana to take over primacy of the investigation;

• (iii) The Respondent was arrested by Gardai in March 2017 and his fingerprints taken and confirmed to match the print taken from the bedroom door at the late Mr Porter's home. He was interviewed by Gardai and denied involvement in the murder, referring to himself as a ‘soldier at war’ and describing Mr Porter as a legitimate target. He denied ever being at that address and alleged his print must have been planted by the RUC;

• (iv) A file was submitted to the DPP and she decided not to prosecute Mr Donegan as there was insufficient evidence;

• (v) The PSNI then re-opened the investigation in the issuing state

• (vi) It was then also established that the Ruger Mini rifle used in this murder was used in subsequent attacks on security forces in Northern Ireland, for which the IRA claimed responsibility, as outlined in the TCAW and additional information received in reply to the S20 request. This weapon was recovered in a provisional IRA arms hide in April 1980.

5 Additional information having been received from the issuing judicial authority (‘the IJA’), this TCAW was endorsed by the High Court on the 29 May 2024. The Respondent was arrested on the 24 June 2024 and produced to the High Court on that date. He has been remanded in bail on this matter since that date, pending the outcome of these proceedings.

UNCONTROVERSIAL MATTERS

6 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’].

7 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.

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

9 I am satisfied that 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.

GROUNDS OF OBJECTION

10 In the Statement of Points of Objection, filed on the 15 August 2024, the Respondent objects to surrender on the following grounds:-

• (a) At grounds 3 to 6 it is pleaded that correspondence is not made out between the offences alleged in the Warrant and offences in this State;

• (b) Ground 7,14 and 15 are no longer being pursued;

• (c) At grounds 8 to 13 and 16 to 17 it is claimed that the surrender of the Respondent would, for the reasons specified therein, amount to an abuse of process.

CORRESPONDENCE

RESPONDENT'S SUBMISSIONS – CORRESPONDENCE

11 The Respondent refers to DPP v MB [2024] IESC 33 where Charleton J discussed intention in the context of crimes of specific intent where an accused was charged on the basis of joint enterprise.

12 The Respondent submits that the issuing state has failed to provide information sufficient to show that the facts implicating the Respondent, as set out in the TCAW and Additional Information, are sufficient to constitute the offence of murder in this jurisdiction. It is submitted that there is no evidence of the requisite intent on the part of the Respondent in this case, where nothing is outlined setting out his role in the offence or his mental state in participating in the commission of the offence and that such cannot be inferred from the other information.

13 It is submitted that the height of the prosecution's case in the issuing state is that Mr Donegan was present at the scene when the murder occurred and was part of a ‘joint enterprise’. No attempt is made to outline his role and his participation.

14 The Respondent further submits that, for similar reasons there is an absence of correspondence in relation to the firearms offence. The Respondent says that that there is no evidence to prove he was in possession of these items (the Ruger Mini 14 rifle and some cartridges) except the assertion he was part of a joint enterprise...