Minister for Justice v Mc Nicholl

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Patrick McGrath
• Judgment Date: 20 March 2025
• Neutral Citation: [2025] IEHC 166
• Docket Number: Record No 2024 EXT 109

Between

Minister for Justice

Applicant

and

John Edward Anthony Mc Nicholl

Respondent

[2025] IEHC 166

Record No 2024 EXT 109

THE HIGH COURT

Trade and Co-Operation Agreement warrant – Surrender – Abuse of process – Applicant seeking an order for the surrender of the respondent on foot of a Trade and Co-Operation Agreement warrant – Whether it would be an abuse of process to order surrender

Facts: The applicant, the Minister for Justice, applied to the High Court seeking an order for the surrender of the respondent, Mr McNicholl, to Northern Ireland on foot of one Trade and Co-Operation Agreement warrant (TCAW). The warrant was issued on 26 April 2024 by District Judge Connorat, Laganside Magistrates Court, Belfast and sought the surrender of the respondent for prosecution in relation to a number of offences. The following objections were pursued by the respondent: (a) the application for surrender amounted to an abuse of the process of the Court; (b) his surrender would be contrary to s. 37 of the European Arrest Warrant Act 2003 as it would be incompatible with his rights under Articles 41 and 40.3.1 of the Constitution and Article 8 of the European Convention on Human Rights in the particular and unusual circumstances of the case; (c) his surrender would be contrary to s. 37 of the 2003 Act as incompatible with Article 38.1 of the Constitution and Articles 47 and 49 of the Charter of Fundamental Rights of the European Union, including the fundamental principle of legal certainty and legitimate expectation; and (d) the delays and/or lapse of time in the issuing of the warrant were cumulative factors which have resulted in the refusal of surrender being in the interests of justice.

Held by McGrath J that, on the evidence adduced by the respondent, the disruption of his normal family life, developed and enjoyed by him since 1976, could not in the context of an application for surrender be seen as being so exceptional as to amount to a disproportionate breach of his family and personal rights such that it would be a breach of the Convention or Constitution to order his surrender to stand trial for the serious offences. McGrath J noted that it was not in dispute that, following on from the judgment of the CJEU in Alchaster (Case C-202/24, Alchaster [2024]) the principles of mutual trust and confidence that underlie the operation of the Framework Decision and the consideration of applications from member states of the European Union, do not apply to the consideration of TCAWs received from the United Kingdom under the Trade and Cooperation Agreement. McGrath J found that there was simply no basis to suggest that the respondent would not obtain a fair trial in Northern Ireland and that he would not be in a position to fully litigate before the Courts of that jurisdiction issues such as delay and abuse of process, such as might impinge upon his fair trial rights. McGrath J did not consider this to be a case where there were grounds for the Court, looking at all the circumstances cumulatively, to conclude that this was one of those cases where the application for surrender could be said to be an abuse of the process of the Court.

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

Application granted.

JUDGMENT of Mr. Justice Patrick McGrath delivered on the 20 March 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 offences:

• a. The Murder of Robert John McPherson, on the 26 July 1975, contrary to Common Law;

• b. The Murder of William Robert Elliott, on the 26 July 1975, contrary to Common Law;

• c. The Possession, on the 16 February 1976, at Brockaghboy, Garvagh of explosive substances, with intent to endanger life or cause serious injury to property or enable another to do the same, contrary to Section 3(1)(b) of the Explosive Substances, Act 1883

• d. The Possession, on the 16 February 1976, at Brockaghboy, Garvagh of explosive substances, under such circumstances as to give rise to a reasonable suspicion he did not have them for a lawful object, contrary to Section 4(1) of the Explosive Substances, Act 1883

• e. The Possession, on the 16 February 1976, at Brockaghboy, Garvagh of firearms and ammunition, with intent to endanger life or cause serious injury to property or enable another to do the same, contrary to Section 14 of the Firearms Act (Northern Ireland), 1969

• f. The Possession, on the 16 February 1976, at Brockaghboy, Garvagh of firearms and ammunition, under circumstances such as to give rise to a reasonable suspicion he did not them for a lawful object, contrary to Section 19A of the Firearms Act (Northern Ireland), 1969

3 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.

4 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’].

5 I am satisfied that set out in the Warrant are the necessary details required under Section 11A of the 2003 Act.

6 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.

7 The minimum gravity requirement under the 2003 Act is met.

8 I am satisfied that none of the matters referred to in sections 22, 23 and 24 of 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.

CORRESPONDENCE

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

10 No issue is raised by the Respondent in relation to correspondence. 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 s. 38 of the 2003 Act. 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’.

11 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

12 I am satisfied that the acts or omissions that constitute the offences for which surrender is sought correspond to the following offences under Irish Law:-

• a. Murder contrary to Common Law,

• b. Attempted Murder contrary to Common Law;

• c. Possession of Firearms/Ammunition with Intent contrary to S.27B Firearms Act 1964 as amended or Section 15 of the Firearms Act, 1925 (as amended);

• d. Suspicious Possession of Firearms/Ammunition contrary to S27A of the Firearms Act 1964 (as amended)

• e. Possession of Explosive Substances in Suspicious Circumstances contrary to S4(1) Explosives Act 1883

GROUNDS OF OBJECTION

13 The Respondent delivered Points of Objection on the 21 June 2024. At the hearing of this matter, the Respondent maintained the following points:

• a. The application for surrender amounts to an abuse of the process of this Court;

• b. The surrender of the Respondent would be contrary to s. 37 of the 2003 Act as it would be incompatible with his rights under Article 41 and 40.3.1 of the Constitution and Article 8 of the European Convention on Human Rights in the particular and unusual circumstances of this case;

• c. His surrender would be contrary to s. 37 of the 2003 Act as incompatible with Article 38.1 of the Constitution and Articles 47 and 49 of the Charter of Fundamental Rights of the European Union, including the fundamental principle of legal certainty and legitimate expectation;

• d. The delays and / or lapse of time in the issuing of this Warrant are cumulative factors which have resulted in the refusal of surrender being in the interests of justice

SECTION 20 REQUEST

14 Pursuant to s. 20 of the 2003 Act, this court sought further information from the requesting state. By letter dated the 1 July 2004, the following was sought:-

‘The High Court respectfully requests additional information (and any relevant documentation) as follows:

• 1. Please provide full details of any knowledge the UK authorities had of the whereabouts of the requested person at any time between the date of his escape from custody on 5 May 1976 to the date of issue of the Trade and Cooperation Arrest Warrant on 26 April 2024;

• 2. Please provide full details of any decisions not to seek the requested person's extradition until 26 April 2024’

15 By letter dated the 17 July 2024 a reply was received. In that reply, which is the subject of much criticism by the Respondent, there are set out the details of the knowledge of the Northern Ireland authorities of the Respondents whereabouts over the years and a chronology of the various occasions over the years...